Delta Technology Standard Definitions, Terms and Conditions
Please read the following Terms and Conditions (the “Terms”) carefully prior to utilizing any services or products of Delta Technology (“Delta”). Your use of the services is conditioned upon your acceptance and compliance with these Terms. The Terms apply to all users and anyone who utilizes Delta’s services or products. BY USING THE SERVICES OR PRODUCTS, YOU ARE AGREEING, ON BEHALF OF YOURSELF AND THOSE YOU REPRESENT, TO COMPLY WITH AND BE LEGALLY BOUND BY THESE TERMS AND ALL APPLICABLE LAWS.
- Rough Order of Magnitude Proposal (ROM)
- ROMs are intended to provide the customer with a concept and cost estimate based upon the discussed work, and customer documents if any, between Delta and the customer.
- Delta will use normal quoting practices. Our objective is to be closer than 25% of applicable pricing of a final Detailed Proposal.
- ROMs are intended to be a topic of conversation. The points of concept upon which the proposal is based are presented in separate lines, with each line representing the portion of the total price (fully loaded with material, labor, overhead and profit).
- Standard Proposal
- A Standard Proposal is based upon a completed SoW, concepts, other customer supplied materials and the description provided in the SoW, prior to engineering design efforts.
- Standard Proposals are a fixed price, however they contain some risk of additional discovery by the customer and Delta’s engineering resulting in a change in SoW, and are subject to ECN after a purchase order has been issued. If a purchase order has not been written, the proposal will be revised to reflect any discovery, and price changes if applicable.
- Engineering PrePurchase
- As part of Delta’s partnership program, a customer may opt to purchase the engineering design portion before committing to purchasing the entire project.
- Engineering PrePurchase is normally about 10% of the project price, but may vary depending on the type of project.
- The Engineering PrePurchase phase is identical to a full project Engineering effort, culminating in the Final Design Review.
- After the FDR, all of the engineering work is available as a deliverable. This is normally SolidWorks part and assembly files, and may include some controls architecture documents. Detailed mechanical and electrical drawings, and control programs, are not included.
- Once the FDR is accepted and signed, the comprehensive design becomes the basis for the Engineered Proposal to finish the manufacturing and commissioning portion of the project.
- The PrePurchase amount will be shown on the Engineered Proposal as a credit and the actual incurred engineering is included as an itemized line.
- Terms for PrePurchased Engineering are 50% down net 0 and 50% net 30 at Final Design Review.
- Engineered Proposal
- Engineered Proposals are estimates based on a fully designed system as agreed to in the Final Design Review after Engineering PrePurchase.
- Engineered Proposals may be subject to ECN, should the SoW change as a result of discovery, unknown or undisclosed information as the project progresses.
- Because a design has been created, the Engineered Proposal minimizes the risk of undiscovered scope, to both the Customer and Delta.
- Concepts are created in response to an RFQ or inquiry wherein there may be limited information; and/or when only a Budgetary Proposal has been requested.
- Concepts are also used to develop a Standard Proposal (see below).
- Concepts are generally written descriptions of work and methods, without layouts or models.
- Scope of Work (SoW)
- The Scope of Work is the heart of every project. It is a definition of the components, process, and other critical customer requirements that drives the concept, estimate and consequently the custom design.
- While every effort is made for the SoW to be comprehensive, it is to some extent a living document, with modification recorded by ECNs (see below).
- NRE (Non-Recurring Engineering)
- Non-recurring engineering is the portion of design necessary to create the first iteration of a project, with complete drawings and documentation to support manufacturing and assembly.
- NRE represents the combined experience of Delta’s previous projects and efficiencies gained from that experience, and as such is the intellectual property of Delta Technology, LLC.
- NRE charges are included in proposal line item prices for the first article. Subsequent iterations of the equipment include only recurring engineering.
- Final Design Review (FDR)
- Final design review includes revisions based upon the customer’s review, specific process descriptions, sequence of operations, functional descriptions and descriptions of the customer’s product or process. Final design review does not include detail drawings ready for release for fabrication, or electrical schematics.
- Final design review is the payment milestone that initiates creation of detail and electrical drawings, purchasing, and an updated project schedule. Changes to project scope identified during the Final Design Review will be documented by ECN, and are subject to applicable costs and schedule impact at Delta Technology’s discretion. Long lead items, agreed to by Delta with the customer, are released for purchase upon approval by the customer after receipt of order and down payment.
- Final Design Review is the final milestone for payment of Design-Only projects.
- Factory Acceptance Test (FAT)
- FAT is the testing at Delta Technology’s factory that is described in this proposal or defined in an attachment to this proposal.
- FAT is a payment milestone as defined in “Pricing” in this proposal. The payment milestone is due as stated whether the FAT is completed in-full, or with conditions, as agreed at the time of acceptance.
- FAT completion, subject to notations agreed to, is the authorization to invoice and crate for shipment.
- Requests for additional FAT shall be subject to an Engineering Change Notice with potential price and schedule impacts.
- Site Acceptance Test (SAT)
- SAT is the testing at the customer site following the installation, as described in this proposal or defined in an attachment to this proposal.
- SAT is the final payment milestone as defined in “Pricing” in this proposal. The payment milestone is due as stated whether SAT is completed in-full, or with conditions, as agreed at the time of acceptance.
- The equipment warranty period commences from the date of SAT completion.
- Use of the equipment for production implies tacit acceptance of SAT.
- Engineering Change Notice (ECN)
- The ECN is used to document changes to the SoW of any project whether there is an associated fee or not. Delta and the customer sign-off in agreement.
- Fee-bearing ECNs are quoted by Delta and accepted by the customer. The value of an ECN, is invoiced in total and due net 30 days from date of invoice.
- Acceptance of the ECN as quoted is required prior to the modified SoW being implemented (engineering, programming or other changes).
- Sunk Costs
- Sunk Costs (Cancellation Clause), are all actual costs including the applicable burdened, plus 20%.
- Delta Technology offers (subject to customer qualification) up to 100% Equipment Financing/Leasing through our partnership with CoreTech. 3-7 years financing or leasing is offered on all of your equipment requirements (inclusive of non-Delta Technology Equipment); we can include all: hardware, software, freight, installation and purchased preventative-maintenance contracts. These programs are structured to meet your budgetary requirements with payments on a monthly, quarterly, semi-annual or annual basis. SBA and USDA loans are available as well. To obtain further information, please visit Delta’s Coretech page: https://www.coretechleasing.com/delta-tech.
- Note that through the lease process, all payments terms are as described in the applicable agreement.
CONDITIONS OF SALE:
- Payment is due in-full, net 30 days following installation and SAT, or when the equipment is producing product intended for use or sale, whichever occurs first.
- Late payments (payments received one day or more later than the terms stated) are subject to 1.5% interest per month, based upon the date of milestone sign-off and invoice date.
- Projects placed on hold by the customer, or delays created by delayed communication, that delay the project more than 60 days may be considered cancelled at Delta’s discretion and be invoiced for the sunk costs to date incurred on the project, payable immediately (net 0 days).
- Cancellation of the project will incur recovery of all costs and all cancellation or restocking fees, due net 7.
- Customer requested changes or discovery will be documented as ECNs, will be quoted, agreed to by both parties, and invoiced upon agreement to the change, as a unit cost, due net 30 days from invoice.
- Build-to-Print projects that require additional materials or labor as the result of incomplete documentation provided by customer shall be documented by an ECN, will be quoted, agreed to by both parties, and invoiced upon agreement to the change, as a unit cost, due net 30 days from invoice. Delays in approvals of ECNs may cause delays in the project schedule.
- This proposal with Terms & Conditions must be attached to, or referenced by, the purchase order, for the purchase order to be accepted and processed.
- Delta’s failure to perform its contractual responsibilities, to perform the services, or to meet agreed service levels shall be excused if and to the extent Delta’s nonperformance is caused by Customer’s omission to act, delay, wrongful action, failure to provide inputs, or failure to perform its obligations under these Terms.
- Unexpected increases in pricing from the supply chain will be passed along as incurred. Absolute pricing is impossible to quote without charging a premium risk factor on the entire proposal.
INSTALLATION AND SUPPORT
- Installation service is offered during normal business hours, i.e. 8am to 5pm site local time, Monday through Friday, excluding Delta holidays. Delta Technology reserves the right to adjust its work schedule at its discretion and according to its business needs. Customer requests for overtime and / or weekend work is subject to an ECN and additional costs, including labor and travel expenses. Any installation services performed outside of Delta’s normal business hours, shall be billed at a premium rate.
- Start up support is included with a finite time limit, as listed in the proposal. Customer must make all efforts to coordinate startup while Delta is on site for installation and startup. Delays in start-up due to inadequate site support (including but not limited to: lack of product, upstream / downstream machine downtime, maintenance, production schedule changes, lack of personnel) will be subject to additional costs in the form of idle time (charged at current rates) and additional travel expenses, as required.
- Post-installation support is provided during normal work hours, i.e. 8am to 5pm site local time, Monday through Friday and excluding Delta holidays, is invoiced at standard rates and actual travel expenses, and is subject to scheduling around prior commitments. A purchase order for such support must be received prior to scheduling sustained support. Normally two weeks’ advance notice is required for additional support; expedited service may be available at increased rates.
WARRANTY: 12 MONTHS FROM FAT
- Delta Technology warrants the equipment for a period of 12 months from date of FAT (note that use of the equipment for production is considered explicit approval of FAT), provided that the equipment has been maintained and operated in accordance with the provided manuals, and that reasonable care has been taken to prevent abnormal operation. Delta Technology will repair or replace at Delta Technology’s option, any part that Delta Technology determines to be defective in workmanship or in design. Delta Technology will not be liable for costs of repairs made to equipment without prior agreement between the customer and Delta Technology
- Component parts of the equipment supplied by, but not manufactured by Delta Technology are sold subject to the respective manufacturer’s warranty conditions and terms. Delta Technology shall have no liability to the customer in the event that a manufacturer fails to honor their own warranty.
- No warranty is given for expendable items such as fuses, light bulbs, filters, etc., which may have an inherent useful life shorter than 12 months.
- Warranty support is provided during normal business hours, i.e. 8am to 5pm Arizona time, Monday through Friday, excluding holidays.
- Other than the warranties set forth in this section, Delta Technology makes no warranty of any kind, expressed or implied or otherwise whatsoever, that the services performed or any items produced will be merchantable or fit for any particular purpose other than their original, intended use.
- In the event of any breach of any warranty specified in this provision, Customer’s exclusive remedy shall be that Delta Technology shall, at Delta Technology’s option, repair or replace any defective goods at no cost to Customer or refund any purchase price paid for such Work.
In the event of an order cancellation, the following charges will be the responsibility of the customer: (Projects placed on “hold” for longer than 60 days may be subject to the cancellation fees at Delta’s discretion. Charges are due upon request by Delta.)
- Cost of procured material that is non-restockable (i.e. fabricated parts, components that are not accepted by vendors for restocking).
- All restocking fees.
- All shipping costs.
- Labor costs incurred by Delta Technology for ordering material prior to cancellation, and for returning parts to the vendor after the cancellation.
- Labor costs incurred by Delta Technology for assembly and engineering (if applicable) prior to cancellation, and for the machine disassembly process for returning parts to the vendors after the cancellation.
- Labor incurred by Delta Technology for program management prior to the cancellation and during the restocking phase
- A cancellation fee equal to 10% of the original full proposal price
© Copyright 2021, Delta Technology:
This proposal is protected by US copyright laws and may not be copied or distributed without the express written permission of Delta Technology
- Distribution of this proposal, or any part thereof, by any party, to any other party that could in any way be deemed a competitor of Delta Technology is expressly forbidden.
- Delta Technology retains all rights to the concepts contained in this proposal. Said concepts may not be provided to others for the purpose of competitive quoting, nor may said concepts be used by the recipient of this proposal, without compensation to, and written authorization by, Delta Technology’s CEO. This paragraph does not apply to concepts that can be shown to be in the possession of the recipient prior to the date shown on this document.
- Delta Technology hereby authorizes the customer to copy and distribute this proposal exclusively to the customer’s personnel as may be required for technical and purchasing review, with the understanding that this section applies to any and all parties provided with said copies.
- Any and all inventions, discoveries, patent applications, patents, copyrights, trademarks and trade names, commercial symbols, trade secrets, work product and information embodying proprietary data existing and owned by Customer as of the date of the Purchase Order or made or conceived by employees of Customer during the Term of the associated Work shall be and remain the sole and exclusive property of Customer provided that Customer grants to Delta Technology a license to use, display and distribute (and to sub-license its affiliates and sub-contractors to use, display and distribute) any intellectual property rights delivered to Delta Technology as reasonably necessary to perform any Work associated with the Agreement.
- Any and all inventions, discoveries, patent applications, patents, copyrights, trademarks and trade names, commercial symbols, trade secrets, work product and information embodying proprietary data existing and owned by Delta Technology (Delta Technology Property) as of the date of the Purchase Order or made or conceived by employees, consultants, representatives or agents of Delta Technology during and after the term of this Agreement shall be and remain the sole and exclusive property of Delta Technology.
- Without limiting the generality of the foregoing, Customer acknowledges and agrees that Delta Technology is in the business of developing customized automation solutions, spare parts, and services, and the provision of such solutions, spare parts, and services, and that Delta Technology shall have the right to provide to third parties solutions, spare parts, and services which are the same or similar to those provided herein and to use or otherwise exploit any Delta Technology Property in providing such services.
- CUSTOMER FURTHER AGREES THAT CUSTOMER’S EMPLOYEES, REPRESENTATIVES, AGENTS, ASSIGNS, ASSOCIATES, OR CONSULTANTS WILL NOT DIVULGE DELTA TECHNOLOGY’S PROPERTY TO A THIRD PARTY, ATTEMPT TO REVERSE ENGINEER, OR ALLOW AN UNAUTHORIZED THIRD PARTY TO MODIFY THE WORK. DELTA TECHNOLOGY CONSIDERS SUCH AN EVENT A MATERIAL BREACH OF THIS AGREEMENT AND WILL, AT DELTA TECHNOLOGY’S DISCRETION,
- TERMINATE THE WORK; AND/OR
- INVOICE IN FULL FOR THE WORK, INCLUDING ANY PORTION OF THE WORK REMAINING; AND/OR
- TERMINATE ANY AND ALL WARRANTIES ASSOCIATED WITH THE WORK.
- Each Party (the “Receiving Party”) will treat as confidential and prevent unauthorized duplication or disclosure of any confidential or proprietary information, including, without limitation, any information about the Disclosing Party’s (as defined below) products, services, marketing techniques, price lists, customer lists, pricing policies, business methods, business plans, budgets, projections, financial information, and technical information (the “Confidential Information”) of the other Party (the “Disclosing Party”) which the Receiving Party may acquire during the course of its activities under these Terms and will not use any of the Confidential Information for any purpose other than in furtherance of the Receiving Party’s obligations under these Terms. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information of the Disclosing Party to its employees, members, officers, agents, or consultants (the “Representatives”) who need to have access to the Confidential Information, and who are informed by the Receiving Party of the confidentiality obligations imposed by these Terms. The Receiving Party’s obligations under this Section will not apply to Confidential Information that (i) is or becomes part of the public domain through no fault of Receiving Party or its Representatives; (ii) is known to the Receiving Party at the time of receipt of such information from the Disclosing Party; (iii) if, after the date hereof, obtained by Receiving Party from a third party who has the legal right to disclose the same without a restriction on disclosure; (iv) has been, or is subsequently, independently acquired or developed by the Receiving Party without violating any of the Receiving Party’s obligations under these Terms; or (v) is required to be disclosed by government regulation, court order or other legal process; provided the Receiving Party provides the Disclosing Party with prompt notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate relief. The Receiving Party acknowledges and understands that any right, title, and interest in and to the Disclosing Party’s Confidential Information are vested in the Disclosing Party. The obligations of confidentiality provided hereunder will survive for a period of two (2) years after the expiration or termination of these Terms for any reason.
- Each of the Parties acknowledge that the covenants and restrictions contained in these Terms are (a) necessary, fundamental, and required for the protection of the business and intellectual property of each of the Parties; (b) necessary and required to protect the goodwill and value of Delta; (c) relate to matters which are of a special, unique, and extraordinary character that give each of the covenants and restrictions a special, unique, and extraordinary value; and (d) of a nature such that a breach of any such covenants or restrictions or any other provision of these Terms will result in irreparable harm and damage to Delta.
To the fullest extent allowed by law, Customer shall defend, indemnify, and hold Delta harmless, from and against any and all losses, damages, liabilities, claims, demands, actions, judgments, costs, and legal or other expenses (including, without limitation, reasonable attorneys’ fees, costs, expert costs, and expenses) incurred as a result of: (i) claims by third-parties relating to or arising out of facts and circumstances of the services and products provided by delta and arising out of these Terms; or (ii) any breach of, or failure by Customer to perform, any of its representations, warranties, or covenants set forth in these Terms.
PRICE AND TERMS
- The prices payable by Customer for the Work to be supplied by Delta Technology under this Agreement will be specified in the applicable Purchase Order. Unless otherwise expressly stated in an associated Sales Quote, all prices exclude shipping and taxes.
- Unless otherwise expressly stated in an accompanying Sales Quote, Payment terms are net thirty (30) calendar days from the date of the invoice.
- If Customer does not pay an invoiced amount within terms, Customer will, in addition, pay simple finance charges of one and one-half percent (1.5%) per month on the late balance and Delta Technology reserves the right to:
- withhold shipment or services until the account is paid in full; and/or
- revoke any credit extended to Customer.
- In the event that Customer’s account is more than ninety (90) days in arrears, Customer shall reimburse Delta Technology for the reasonable costs, including attorneys’ fees, of collecting such amounts from Customer.
- For all overdue accounts or accounts on hold, payments shall be applied to the oldest balance first.
- The Purchase Order, this Agreement and the operative provisions of any Sales Quote issued by Delta Technology and any Purchase Order issued by Customer, sets forth the entire agreement and understanding among the parties as to the subject matter hereof, and merges and supersedes all prior discussions, agreements, and understandings of every and any nature among them.
- No Sales Quote, Purchase Order, Purchase Order confirmation, acceptance, or any other document provided by either Party to the other, shall be deemed to amend the terms hereof and any such contradictory or additional terms shall be ineffective.
- In the event of any ambiguity or conflict between any of the terms and conditions contained in this Agreement and the terms and conditions contained in a Purchase Order, the terms and conditions of this Agreement shall control, unless the Delta Technology has expressly provided in such Sales Quote that a specific provision in this Agreement is amended, in which case this Agreement shall be so amended, but only with respect to the associated Sales Quote and Purchase Order.
- The Purchase Order or this Agreement may not be amended, supplemented, changed, or modified, except by agreement in writing signed by the parties to be bound thereby.
- The liability of Delta in any and all categories and for any and all causes arising out of these Terms, whether based in contract, tort, negligence, strict liability, or otherwise will, in the aggregate, not exceed the actual fees paid by Customer to Delta over the period of one-year prior. In no event will Delta be liable for incidental, consequential, punitive, indirect, or special damages, including, without limitation, any interruption or loss of business, profit, or goodwill. As a condition for recovery of any liability, Customer must assert any claim against Delta within three (3) months after discovery or sixty (60) days after the termination or expiration of any relationship, whichever is earlier.
- These Terms shall be governed by and construed in accordance with the laws of the State of Arizona, without regard to conflicts of law’s provisions. The Parties agree that resolution of disputes or claims arising under these Terms shall be resolved first by good-faith participation by each of the Parties in mediation utilizing qualified mediators who are mutually agreed upon by the Parties. If the dispute is not resolved through mediation within thirty (30) days from the date that either party makes a written demand on the other party to enter into mediation, and in the absence of a mutual agreement to enter into binding arbitration with an arbitrator mutually agreed upon by the Parties, either party shall have the right to bring a judicial action to resolve the dispute through the filing of an action with the court in Maricopa County, Arizona. Unless otherwise determined by the court and/or by the arbitrator, each of which shall have the power to allocate the costs of the action or the arbitration, each party shall pay its own attorneys and court costs. Each of the Parties acknowledge that a breach or threat of a breach of any provision of these Terms by either Party will result in irreparable harm and damage to the non-breaching Party. Consequently, the non-breaching Party’s remedies at law will be inadequate and, in each such event, the non-breaching Party will be entitled to an injunction or other similar relief to prevent the breaching Party or its executives from breaching these Terms and to enforce specifically the provisions hereof, in addition to money damages sustained by the non-breaching party resulting from a breach or threatened breach of this the State of Arizona, without regard to conflicts of law’s provisions.
- Neither Party will be liable for any delay or failure to perform under these Terms (other than with respect to payment obligations) to the extent such delay or failure is a result of an act of God, war, earthquake, civil disobedience, court order, labor dispute, or other cause beyond such Party’s reasonable control.If Customer is more than (ten) 10 days late in making the required payments to Delta pursuant to the terms of these Terms, and upon receipt of written notice that the payment is late, Customer shall have (ten) 10 calendar days to cause a cashier’s check to be sent to Delta, by overnight mail to be received by Delta on or before the 10th day after Customer’s receipt of said written notice of non-payment. In the event Customer fails to send the cashier check within said period, it shall be in default under these Terms and, thereupon: (1) Delta will have no responsibility to perform further services on behalf of Customer; and (2) the entire amount of the unpaid balance of the payments required under the Terms shall become immediately due and payable to Delta.