Quest's SOW Agreement Terms and Conditions
General Terms & Conditions applicable to all Services provided by Quest
1. Acceptance of Terms and Conditions
By accessing or using this Web Site, www.questinc.com, you agree to be legally bound by the Terms of Use and all terms and conditions contained or referenced herein or any additional terms and conditions set forth on this Web Site. If you do NOT agree to all of these terms, you should NOT access or use this Web Site.
2. Modification of Terms
These Terms and Conditions may be amended by Quest at any time. Such amended Terms shall be effective upon posting. By continuing to access or use the Web Site after such posting, you will be deemed to have accepted such amendments. You are advised to regularly review any applicable terms and conditions.
Quest reserves the right to discontinue or make changes or updates with respect to the Web Site or the Content of the Web Site at any time without notice. Quest reserves the right to restrict, refuse or terminate access of any person to the Web Site or any part thereof effective immediately without notice at any time and for any reason whatsoever at its sole discretion.
3. Definitions
See Attachment A.
4. Terms and Conditions
a. Payment Terms. Net 30 days.
b. Cancellation
i. With Cause: This Agreement may be terminated by either party if a violation of any provision of this SOW by the other party is not rectified within thirty (30) days of written notice given to the breaching party by the non-breaching party, provided such a violation has been brought to the attention of the breaching party, by email, within seven (7) days of occurrence of breach.
ii. Without Cause: This Agreement may be terminated by either party, with one hundred twenty (120) days written notice. Unless agreed to otherwise, Projects, SOW’s and/or Purchase Orders outstanding prior to such termination shall not be affected by termination and shall be executed by the parties under the Terms and Conditions contained herein.
c. Inventory
Physical inventory/asset lists to be covered under this Agreement will be provided by the Customer and entered in Quest’s management information system, QuestNet.
i. Customer is responsible to provide property insurance for their products “Properties/Assets” while kept at Quest facilities and in transit to and from Quest facilities. Evidence of property coverage by the customer is required.
d. Indemnification
The Customer will indemnify, defend, and hold Quest and Quest’s affiliates, shareholders, directors, officers, employees, contractors, and agents harmless from all third-party claims arising out from:
i. Gross negligence or willful misconduct of Customer, its affiliates, shareholders, directors, officers, employees, contractors and agents, Customer’s Agent, Buyer, Client, End User (for whom the service as described in the SOW is being performed, herein defined as ‘End User’) and
ii. Breach of any terms of this Agreement or any SOW by Customer, its affiliates, shareholders, directors, officers, employees, contractors, Customer’s Agent, Buyer, Client, and End User.
Quest shall indemnify, defend, and hold Customer and its affiliates, shareholders, directors, officers, employees, contractors, and agents harmless from all third-party claims arising out from:
i. Gross negligence or willful misconduct of Quest, its affiliates, shareholders, directors, officers, employees, contractors, and agents, and
ii. Breach of any terms of this SOW by Quest, its affiliates, shareholders, directors, officers, employees, contractors, and agents.
e. Limitation of Liability
LIABILITY OF QUEST FOR DIRECT DAMAGES UNDER ANY THIS SOW SHALL BE LIMITED TO THE PURCHASE, REPAIR, OR REPLACEMENT PRICE, AS APPLICABLE, OF THE SPECIFIC PRODUCT(S) OR SERVICES PERFORMED PER EACH SERVICE CALL AS PRESCRIBED IN THE SOW. QUEST SHALL NOT BE LIABLE FOR LOSS OF DATA, PROFITS OR NONUSE OF PRODUCTS OR SERVICES PERFORMED PER EACH SERVICE CALL AS PRESCRIBED IN THE SOW, NOR SHALL QUEST BE LIABLE FOR CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES UNDER THIS SOW.
NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS SOW SHALL LIMIT OR EXCLUDE LIABILITY OF EITHER PARTY FOR:
i. GROSS NEGLIGENCE OR WILLFUL MISCONDUCT,
ii. THIRD PARTY CLAIMS TO BE INDEMNIFIED,
iii. BREACH OF THESE TERMS AND CONDITIONS.
NO SOW VARYING OR EXTENDING THE FOREGOING WARRANTIES, REMEDIES OR LIMITATIONS OF LIABILITY WILL BE BINDING UPON QUEST UNLESS THE SAME IS EXPRESSLY CONTAINED IN WRITING AND SIGNED BY AN OFFICER OF QUEST.
f. Confidentiality
Each party shall consider all information disclosed by the other party in connection with this SOW and any SOW (collectively “Information”) as strictly confidential and shall not disclose such Information to any third party, with the only exception of its and its affiliates’ employees, consultants and agents directly involved in the performance of the relevant services (hereinafter “Personnel”) and for purposes of providing such services.
In this context, reference is made to the Non-Disclosure Agreement (“NDA”) executed between the parties.
g. Hiring Restrictions
To the extent allowable by applicable law, for the term of this SOW and for a period of one (1) year thereafter, Both parties agree not to hire, solicit or accept solicitation through employment as an employee, independent contractor, or otherwise of the other party’s employees, agent, or sub-contractors who have performed services or work which are the subject of this SOW, with the purpose of performing the same services or work which are the subject of this SOW, without the prior written consent of the other party.
Consequently, in the event of such a breach, should any party violate this provision, the breaching party shall be responsible for any liquidated damages to the other party. In the event of a breach of this SOW, the parties agree that the breaching party shall be liable to pay liquidated damages in the amount of six (6) months’ salary or fifty percent (50%) value of the contract whichever is greater.
h. Assignment and Sub-Contracting
i. Except as permitted in Section (b) below, neither party may assign its rights or its obligations, in whole or in part, hereunder (except to an entity that is or becomes the transferee of substantially all the assets of such party) without the prior written consent of the other party.
However, a successor in interest by merger, consolidation, operation of law, assignment, purchase, or otherwise, of either party shall assume all rights and obligations hereunder.
ii. Notwithstanding the foregoing, the parties hereby agree that Quest is entitled to sub-contract certain of its obligations hereunder to meet its contractual requirements, provided however that:
(a) such sub-contractors have been duly trained and certified by the Customer, or Quest prior to performing any service pursuant to this SOW, and
(b) Quest remains liable towards Customer for any activity performed by such sub-contractors.
i. Applicable Taxes
Each party shall be responsible for any employee or personal taxes with respect to its own employees and personnel and any income taxes with respect to its own income. Any other taxes that may be imposed or assessed by reason of this SOW or its performance, including sales and use tax, shall be paid by the Customer.
j. California Law
The SOW shall be governed and construed under the laws of the State of California, without reference to conflicts of law principles.
k. Transition of Services
Transition of services and product training shall be completed within thirty (30) days of contract execution (effective date) or as mutually agreed between the parties. Invoicing for defined payment schedule will commence after thirty (30) days of contract execution.
l. Work Hours
All onsite work will be performed during standard business hours of Monday – Friday, 8:00 am – 5:00 pm local time.
m. Services Provided- Labor only
Quest provides labor only and is not responsible for damage to product unless attributable to workmanship or gross negligence on the part of Quest.
n. Prices
Prices are based on the commitment of the entire package offering, any changes in scope or volume shall require price adjustments.
o. Cancellation by Customer
If any scheduled event is canceled by the customer within forty-eight (48) hrs. of arrival date, there will be a cancellation charge plus any non-refundable charges Quest has incurred.
p. Changes in Scope/Location
Any changes in scope or location may trigger a fee adjustment as mutually agreed.
q. Force Majeure
If the performance of this Agreement, any SOW, or any obligation hereunder or thereunder is prevented or delayed by reason of fire, flood, earthquake, acts of God, pandemic, war, riot, civil commotion, act(s) of government or other causes beyond the control of the affected party, the affected party, upon giving prompt notice to the other party, shall be excused from such performance to the extent of such delay, provided however, the affected party takes all reasonable steps to avoid or remove the cause of such delay and shall resume performance as soon as practical. The time for performance shall be extended for a period equal to the duration of the excusable delay.
r. Survival of Obligations
The termination or expiration of this SOW shall not affect the survival and continuing validity of any provision which expressly or by implication is intended to continue in force after such termination or expiration, including any payment obligations.
s. Electronic Signatures
This SOW may be executed in counterparts. The parties agree to use electronic signatures and agree that any electronic signature will be legally valid, effective, and enforceable.
Terms & Conditions specific to Field Services provided by Quest
a. Parts
If applicable, parts for preventative and corrective maintenance repair, product upgrade inventory, packaging, shipping, and specialized test equipment, if required, will be provided by the Customer.
b. Credentialing
For facilities requiring FE credentialing (i.e., Reptrax), the credentialing process for the local FE, will be paid for by Customer, at the provided rate plus the cost of the certification + 10% (If applicable).
c. Excess Hours
If the onsite hours exceed the defined established average hours for Applicable Onsite Services (Installation, Removal, Preventative Maintenance (PM), Corrective Maintenance (CM) and Product Upgrades) by the continuation of the service necessary to complete the job will be billed at the appropriate hourly rate.
d. Field Services Technician Training
Quest ’s Field Service Technicians will receive training on the Customer’s Products at Customer specified training site. Onsite shadow training will be at the standard hourly rate. Future service techs could be trained using Quest’s Train the Trainer Program (if feasible).
e. Service Delays
Quest will not be responsible for service delays due to parts availability/parts shipments or access to service the systems supplied by Customer. Service will be charged in full if the Quest Service Technician arrives at the customer site and the customer is not available or not ready causing a revisit.
f. Safety First
Quest takes a “Safety First” approach. Unforeseen circumstances, such as adverse weather conditions, may impact on the ability of our service technicians to reach a location safely and within the agreed-upon timeframe. The safety and well-being of our technicians and clients is our top priority.
i. If our service technician has been scheduled to travel into an area where a known weather event develops, our dispatch team will pause the service call and contact the appropriate parties for rescheduling.
g. Onsite Services
Applicable Onsite Services (CM’s, PM’s, Installs, etc..) need to start / be initiated within thirty (30) days of training completion; otherwise, retraining (being billable) will be required.
Attachment A
Definitions
a. “Call Scheduling” The series of required tasks performed by Quest to get the FSP onsite. Including but not limited to Call outs, Logistics shipments, FSP assignments, etc.
b. “Customer’s Customer” is referred to as “Client”.
c. “Customer Specifications” means technical and functional requirements and Documentation provided by Customer, or created for Customer at Customer’s direction, and include Customer Unique Specifications, if any.
d. “Days” means calendar Days.
e. “Deliverables” means the tangible items to be provided by Quest to Customer in satisfaction of Quest’s obligations to Customer to a SOW.
f. “Depot repair” refers to a type of maintenance and repair process where equipment, machinery, or components are sent to a central facility, or "depot," for extensive servicing. This facility is typically equipped with specialized tools, parts, and skilled technicians necessary for more complex or significant repairs that cannot be performed in the field or at a local service center.
g. “Device” a single piece of equipment that is part of a larger system.
h. “Effective Date” means the Date this Agreement has been signed by the last signatory to the Agreement.
i. “Level 1” Level 1 support personnel solve basic issues identified on Instructions for Use (IFU) documents, password resets or basic user problems.
j. “Level 2” Issues beyond the skill of Level 1 personnel to resolve are escalated to Level 2 personnel. Level 2 personnel have the knowledge base and skills to handle more complex customer issues and may use remote visual tools.
k. “Minimum Site Visit” the minimum charge required for an FSP to perform a site visit.
l. “Overage Spend” The amount required in addition, for excess/overage work for other fees including travel, training, overages, etc., apart from the Monthly, Quarterly or Annual Minimum Spend amounts defined in this Agreement.
m. “Partner Portal” means the systemic IT interconnections between Customer and Quest.
n. “Party” or “parties” as used herein shall refer to Quest and/or Customer as applicable.
o. “Personnel” means workers employed or contracted by Quest or its Subcontractors for the provision of Services and/or Deliverables to Customer as described in SOW Agreement.
p. “Portal to Portal” Refers to the total time associated with the travel of an FSP or worker from one designated location (portal) to another and back. This duration encompasses all relevant aspects of the journey, such as transportation time, potential delays (e.g., weather or flight delays), layovers, and other factors that may affect the overall time spent in transit.
q. Primary – The Site visit tied to the Minimum Site Visit fee.
r. "Product(s)" means Customer’s products listed in Exhibit A to SOW Agreement.
s. “Purchase Order (PO)” means the formal minimum dollar amount from the Customer to Quest to cover the cost of Services, defined in the details of the PO, for the term of the SOW Agreement.
t. "Rates" means the agreed prices for the Services as set forth in the applicable SOW Agreement.
u. “Record” is information created, received, and maintained as evidence of an action, transaction, decision, or other significant activity.
v. “Resource Week” the forty (40) hour period in a single calendar week per assigned Field Service Personnel (FSP). If this time falls at the end of a month, then the time is applied to the month on which the Friday occurs (i.e. If the Friday of the forty (40) hour period is on the 1st of the month, the entire week would apply to the new month, even though the majority of the time fell during the previous month).
w. Secondary – Used when two (2) Service Calls are overlapping in date and location. Service Visits at different locations require additional Primary Site Visits. The appropriate hourly rate applies and cannot be combined with the primary site visit time.
x. “Service Commitment Date” the date services are to be initiated as determined in the SOW.
y. “Service Call” A QuestNet ticket that defines the scope of work to be performed by Quest FSP on a single serialized system or device.
z. “Site” means the Customer location or facility where the Products/Equipment/Devices are located, where the service is performed.
aa. “Site Access” means the conditions, protocols and requirements dictated by Customer to Quest for the purpose of granting access to client’s location.
bb. “Site Visit” A single visit by a Quest FSP tied to the Service Call.
cc. “Subcontractor” means all Quest approved third party strategic partners that have direct contracts with Quest or with any other subcontractor to perform a portion of the Services under the SOW Agreement.
dd. “System” Collection of Devices that the CUSTOMER product is comprised of.
ee. “True Up” is a financial or accounting procedure used to reconcile and adjust discrepancies between estimates and actual results. It ensures that financial records, statements, or budgets accurately reflect real figures.
ff. “Travel Expenses” refer to the costs incurred by Quest’s FSP while traveling. for performing services for the Customer. These expenses typically cover a range of items related to transportation, lodging, meals, and other travel-related costs.
gg. “Uplift” the additional charges for expedited Site Visit or a Site Visit that occurs after hours or on a holiday.
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