Terms & Conditions

Last updated December 2023

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Definitions 

“Time and Materials” Basis: 

The Professional Services and materials described in this proposal may be bid on a Time and Materials (T&M) basis, in accordance with hourly rates set forth in the Investment section. The labor hours provided are the estimated hours that it will take to complete the defined scope. This estimate represents GrayMatter’s best evaluation of the effort required based upon discussions to date, and only considers those Services in scope of this proposal. This estimation gives the Customer an indication of the effort required; however, the Customer will be invoiced for the actual number of hours of effort required, which may be more or less than estimated. It is recommended that the Customer plan on a 10%-15% contingency budget. All hours directed to the project are considered billable work, including but not limited to: direct engineering and development, troubleshooting, research, meeting support, travel, issue resolution, and project management. Only hours consumed in the delivery of the services described above will be invoiced. 

What happens if hours required to complete the scope exceed the estimate? 

• All labor hours incurred in relation to the stated work scope will be invoiced to the Customer 
• GrayMatter will provide status of hours expended against estimates. When 80% of hours are expended, an evaluation will be conducted to determine if additional effort beyond the original estimate will be required. If additional hours are needed, a mutual discussion will ensue with a Change Order developed as needed. 

What happens if hours expended are less than the estimate? 

• Only hours needed to complete the scope will be invoiced to the Customer
• Any hours below the estimate that are not expended will not be invoiced 

Travel and On-site Fees for T&M Basis: 

Stated Investment total may not include travel costs, such as billable travel hours, airfare, transportation, hotel, meals, and other travel related costs and none are included in the scope of this proposal. For budgetary and/or PO guidance purposes it is suggested that travel labor and expenses of 5-10% be planned and budgeted.

“Fixed Bid” basis: 

The Professional Services and materials described in this proposal may be bid on a Fixed Bid basis, in accordance with breakdown provided in the Investment section. GrayMatter commits to deliver the stated scope for the fixed amount in the Investment section. This fixed amount includes all labor, materials, and associated travel costs to deliver the stated scope of work. Any work or deliverable that is not explicitly listed herein should be considered out-of-scope, subject to additional cost as emergent work. Contingency is included within the stated Investment to cover risks within the execution. 

What happens if hours required to complete the scope exceed the estimate? 

• No additional costs of work beyond the fixed bid amount to execute the agreed scope will be invoiced to the Customer, provided these hours are not in support of emergent work not explicitly covered by the stated scope. 
• If additional labor hours are required due to a change in work scope or circumstances caused by the Customer, then a mutual discussion between GrayMatter and the Customer will ensue, with a Change Order developed as needed. 

What happens if hours expended are less than the estimate? 

• Due to fixed bid nature of the proposal, the full amount of the fixed bid price will be invoiced to the Customer 

Please note that under a Fixed Bid agreement, GrayMatter will not provide a detailed summary of actual hours worked by any resource to deliver the stated scope of supply. 

Emergent Work 

Throughout the project, new information may surface that may necessitate a change in business requirements and/or a change in the technical environment. These changes may result in a change in project scope and therefore impact the estimated level of effort, project timeline, or solution features. Any such changes will require a Change Order, which either GrayMatter or a Customer team member will complete. 

A completed Change Order form includes the requested change, the impact on the current agreement, and the estimated resources, time, and fees to implement the Change Order. GrayMatter will submit the completed Change Order Form to the Customer for review and approval. Upon receipt of written approval, the GrayMatter team will begin work on the requested change according to the agreed-upon schedule. 

When would a change order be issued:

• Time and Materials: A change order will be issued when the effort to complete defined scope may/will exceed original estimated hours. A change order may also be issued when additional scope is requested or required by either GrayMatter or the Customer. 
• Fixed Bid: A change order will be issued when a change of scope is requested or a Customer related delay or issue impacts GrayMatter’s completion of work. 

Assumptions & Clarifications 

UNLESS OTHERWISE STATED THE FOLLOWING STATEMENTS APPLY…

• No installation of hardware or any other physical material (e.g., wiring, network switches, servers, operator workstations) is being provided as part of this proposal. 
• No formal training is provided as part of this proposal. If requested by the customer, GrayMatter can provide ad hoc, informal training directed to the work performed. All training is billed as time and material at the applicable hourly rate. Informal training does not result in any user certifications. No course materials are expected to be developed or delivered as part of the informal training. 
• Filming of any training is not allowed. 
• On-site work, if required, is billed at a minimum eight (8) hour day. 
• As applicable, pricing assumes one (1) review cycle of any newly developed software deliverables (e.g., screens, reports, functionality) is performed, and that the newly developed deliverables are of basic content and functionality. Additional review cycles and/or higher-level content and functionality will have a corresponding impact on cost and price. 
• Work or related deliverables not explicitly listed within the proposed deliverables should be considered as excluded from the proposed scope of work. 
• If resources are required to remain at the customer location during non-working days (e.g., weekends) when work is not occurring, standby time of four (4) hours per day will be charged at the applicable hourly rate. 
• Hours must be used in a contiguous period, exclusive of weekends and holidays (i.e., work is not required to be performed in a single work week, but must be performed in a period of continuous working days). 
• In the event the customer’s task list is completed in a period less than the contracted hours allotment, the customer may either provide additional tasking or forfeit the remaining hours. Standby time spent awaiting additional tasking will be billed against the contracted hours allotment. 
• Hours must be consumed during defined working hours. Hours worked outside of normal working hours will be billed at the applicable overtime rate. 
• Travel, if required, is per the terms of the Investment Section. 
• All hours directed to the customer’s work effort and all on-site time are considered billable work, including but not limited to, direct engineering and development, troubleshooting, research, meeting support, travel, issue resolution, customer delays, site specific training and project management. 

• There is no implied or explicit guarantee that any deliverable discussed prior to order acceptance or during the course of the signed work agreement period can be completed within the hours supplied herein. Purchase of additional time will be necessary when hours under this agreement are exhausted, regardless of status on any specific tasking worked under the agreement. 
• All hardware required for system operation should be installed and configured to the maximum extent possible prior to GrayMatter commencing work. It is assumed that all hardware will be fully ready forsoftware installation before GrayMatter’s arrival atsite. 
• All customer equipment and/or software content and functionality is assumed to be functioning correctly and in accordance with OEM guidelines and recommendations. Troubleshooting and/or correcting malfunctioning customized software will likely require additional effort. 
• All contracted hours are assumed to be capable of occurring in a contiguous manner. If customer resource constraints (e.g., budget, core team members, site availability, equipment availability, etc.) arise during the course of performing the work, and these constraints cause an interruption in the work schedule in which required work cannot be performed, additional charges may apply and assigned GrayMatter resources may be pulled away and re-assigned to other projects. The customer and GrayMatter will mutually agree upon a restart date, at which point the next available resource(s) will be assigned to the project. Examples of additional charges include standby time awaiting work restart and/or additional travel hours and/or expenses resulting from early release from site. GrayMatter cannot guarantee that the original resource(s) will be available at the time of restart, but will make reasonable efforts to maintain team consistency. A Change Order may be required to cover costs associated with the delay and project restart. 

Customer Responsibilities 

UNLESS OTHERWISE STATED THE FOLLOWING STATEMENTS APPLY…

• Customer is responsible for ensuring that all data or other signals, as required for interfacing with the solution, are delivered in an accurate and timely fashion to avoid delays. Customer assumes responsibility for correct installation and functionality of all IT and network infrastructure prior to GrayMatter services for all servers, PCs, panels, controls equipment, or any other related hardware and/or hardware infrastructure. 
• Customer is responsible for providing security passes and free access to all facilities to ensure successful completion of the project. 
• Customer is responsible for providing, at no charge, all required infrastructure for on-site GrayMatter personnel (e.g., office space, telephone, network access, etc.), including the required infrastructure to connect to the Internet.
• Customer is responsible for providing a safe working environment for GrayMatter personnel, ensuring that safe and secure procedures are in place and all testing and quality assurance procedures are completed prior to attempted system modifications. 
• Customer will assign a single point of contact (POC) for the duration of the work agreement. 
• Delays associated with any of the above-listed responsibilities, or any other responsibilities identified during the course of the project, may result in schedule and/or cost impact to the project, and are therefore subject to the Change Order process. 
• Customer is responsible for providing a team experienced with the Customer’s processes, control architecture and systems to work with the GrayMatter engineering team during all phases of the project. 
• Customer is responsible for the proper receipt and storage of any material provided within the scope of this proposal. 
• Customer is responsible for providing, installing, and configuring all hardware necessary for system operation. 
• Customer is responsible for providing access to any relevant documentation requested in support of the work agreement. 
• Customer is responsible for providing continuous network connectivity between the servers and the user clients. Delays associated with the receipt of required documentation may have a corresponding schedule and/or cost impact. 
• Customer is responsible for providing high-speed VPN access for remote personnel needing access to development / test systems. Delays associated with the receipt of required remote access will be billed against the allocated hours defined herein if such delays occur subsequent to the agreed upon work start date. 
• Customer is responsible for providing all required safety/environmental training. Any expenses incurred by GrayMatter personnel resulting from such training will be billed on a time and materials basis in accordance with the contract Terms and Conditions. Time spent completing required training is considered billable against the allocated hours defined herein. 

Acceptance 

Acceptance of Purchaser’s order is expressly subject to Seller’s terms and conditions of sale, contained herein, which shall take precedence over any other terms and conditions. No contrary, additional or revised provisions or conditions shall be binding on the Seller unless accepted by an Officer of Seller in writing. Should the terms and conditions contained herein differ in any way from the terms and conditions of the Purchaser’s order, this acknowledgement shall be construed as a counteroffer and shall not be effective as an acceptance of such order unless Purchaser assents to the terms and conditions contained herein. The failure of Purchaser to object thereto in writing within ten (10) days from the date of receipt hereof shall constitute assent thereto. The terms and conditions contained herein shall constitute the complete and only agreement between Seller and Purchaser; it being intended by both parties that this document sets forth the entire

agreement between the parties hereto as to the purchase of goods and/or services. All orders shall only become legally binding upon acceptance by Seller’s main office, located in Warrendale, PA. 

Pricing 

The prices contained in this Proposal and Statement of Work shall be valid for ninety (90) days from the date of receipt, or upon Seller’s prior notification of a price change to Purchaser, whichever occurs first. The prices contained herein do not include any federal, state, county local or other taxes levied on proposed goods and/or services, their use or sale, or on this agreement by any jurisdiction either within or outside the United States. Such taxes, where seller is required by law to collect them, whether designated as sales tax, gross receipts tax, occupation tax, etc., will be billed to the Purchaser based on the governing law in effect at the time of delivery unless Purchaser furnishes Seller with a proper Tax Exemption Certificate. Purchaser shall reimburse Seller for any state, county, or local taxes imposed, assessed, billed or becoming due and payable with regard to any goods and/or services furnished on or after the date said goods and/or services are located on Purchaser’s premises. The prices contained herein do not include freight charges. Seller shall prepay transportation charges and Purchaser agrees to reimburse Seller for such charges within thirty (30) days of Purchaser’s receipt of Seller’s invoice. All freight, transportation and shipping charges shall be stated separately from other charges. 

Delivery 

All deliveries shall be F.O.B. Seller’s facility. Seller will select a carrier to ship Purchaser’s order to Purchaser’s specified destination, unless Purchaser indicates a specific carrier. Any goods, which Purchaser obtains from Seller to replace goods damaged or lost in transit, will be sold to Purchaser at Seller’s standard prices in effect at the time of such replacement. 

All shipping dates quoted by Seller are ARO (After Receipt of Order) by Seller and reflect shipping dates, not delivery dates to Purchaser’s facility. Shipping dates are approximate and are based upon prompt receipt by Seller of all necessary shipping information. Delays due to missing information such as product specification sheets, or credit examination will be in addition to Seller’s quoted shipping times and may impact the originally scheduled shipping date. Partial shipments may be made unless specifically prohibited on Purchaser’s purchase order. If this contract calls for the shipment of goods in separate lots, or if partial shipments are made as herein authorized, this contract shall be deemed an installation contract within the meaning of the applicable law. Seller does not return Purchaser’s acknowledgements. 

Any shipment date is an estimate. Under no circumstances shall the seller have any liability whatsoever for loss of use, or for any direct, incidental, or consequential damages resulting from delay, regardless of the cause(s).

Ownership of Creative Work 

Seller maintains and holds the exclusive copyright to any and all applications developed, transmitted and/or delivered as part of this agreement. Seller grants to Purchaser, a limited, non-exclusive license to use the application and related documentation in Purchaser’s facilities only. Purchaser shall obtain no title, ownership nor any other rights in and to the application or related documentation, nor in or to any algorithms, concepts, designs or ideas requested by or incorporated in the application or related documentation. Purchaser agrees that it shall not; with exception for one (1) backup copy, reproduce, copy or distribute the application or related documentation for any purpose without Seller’s written consent. 

Payment Terms 

Unless otherwise agreed to by Seller in writing, all payments are due thirty (30) days from date of invoice and due at Seller’s main office in Warrendale, PA. Purchaser agrees that Seller specifically retains a security interest under the Uniform Commercial Code in all goods and proceeds thereof to secure payment of all amounts due from Purchaser to Seller. Any payment not received when 

due is subject to a one and one half percent (1.5%) finance charge per month on the unpaid balance. If the unpaid balance is collected by or through an attorney at law or other licensed entity, Purchaser agrees to pay Seller for all reasonable attorney’s fees and/or collection costs. All purchases shall be subject to the terms and conditions contained herein. If at any time Purchaser fails to submit timely payments, or Seller determines the financial condition of the Purchaser does not justify the terms of payment established, Seller may, at Seller’s sole option, require full or partial payment in advance or shall have the right to cancel any purchase order and shall be fully reimbursed for Seller’s reasonable and proper cancellation charges. If an outstanding agreement for goods and/or services is terminated for any reason, all outstanding invoices will become due immediately. 

Warranties, Limitation of Damages and Remedies 

Purchaser must look solely to all manufacturer warranties for specific information regarding warranties. Seller warranties all applications delivered to be free from defects in material and workmanship at the time of shipment and/or delivery to Purchaser’s facility, and for a period of sixty (60) days from time of shipment and/or delivery to Purchaser’s facility. 

This warranty does not cover any goods and/or services which have been subject to misuse, accident, abuse, neglect, improper installation (installed by other than Seller), storage, and improper maintenance. Any alterations or repairs performed without express written consent of Seller will void the warranty.

Seller shall not be liable for any loss of use, or for any direct, incidental, or consequential damages due to goods and/or services provided. All implied warranties and specifically the implied warranties of merchantability and fitness for a particular purpose are expressly excluded and disclaimed. 

The terms of this warranty shall constitute Purchaser’s sole and exclusive remedy and Seller’s sole and exclusive liability with respect to this agreement. Seller shall have no further obligation or liability upon the expiration of the warranty periods set forth above. 

Seller’s liability to Purchaser (or that of Seller’s Agent/Representative) arising from the supplying of goods and/or services, shall not in any case exceed the cost of the original purchase order. 

Indemnification 

Purchaser shall indemnify and hold Seller, its parent corporations, subsidiaries, affiliates, suppliers, manufacturers, subcontractors, officers, directors, employees, representatives and agents harmless from any liability or damage whatsoever, including any court costs and attorney’s fees arising from the use of any goods and/or services supplied by the Seller. 

Disputes 

At the sole discretion of Seller, Seller may require any controversy, dispute or claim, of whatever kind, arising out of or relating to this agreement be resolved by and in accordance with the Commercial Arbitration Rules of the American Arbitration Association, as from time to time amended and in effect. Any litigation or arbitration arising out of this agreement shall be brought, maintained and administered in Allegheny County, PA. Should Seller be successful, in part or in whole, in prosecuting or defending any lawsuit or arbitration, then Seller shall be entitled to fully recover its litigation or arbitration expenses, including attorney’s fees. 

Force Majeure 

Notwithstanding any provision of this Agreement to the contrary, neither party shall have any liability to the other for a temporary cessation of performance or delay in performance resulting from an event or occurrence beyond its reasonable control, including acts of God, actions by governmental authority (whether valid or invalid), pandemics, epidemics, flood, fire or other extreme weather conditions, national emergency, strikes or other labor difficulties, explosions, war, civil unrest, sabotage, power failure, equipment failure or any cause of like nature beyond its reasonable control; provided that nothing in this Section is intended nor shall it be construed to relieve either party hereto of any obligation to pay money hereunder or extend any time for payment hereunder.

Applicable Law 

This agreement is made in and shall be governed by the laws of the Commonwealth of Pennsylvania, without giving effect to the conflict of law provisions of the laws of the Commonwealth of Pennsylvania. 

Failure to Fully Compensate 

Should Purchaser fail to fully compensate Seller for any goods and/or services provided, Seller shall be fully released from any obligations herein or otherwise. 

Waiver 

The waiver by Seller of any term, condition, or provision hereunder must be in writing and shall not be construed to be a waiver of any other term, condition or provision hereof, nor shall such waiver be deemed a waiver of a subsequent breach of the same term, condition or provision on this order or future orders. 

Authority of Sellers Agents 

No agent, employee, or representative of Seller has any authority to bind Seller or form a part of the basis of this agreement unless the agent, employee, or representative of Seller is specifically included within this agreement and accepted in writing by an officer of Seller. 

Non-Solicit and Non-Hire 

Purchaser agrees, for a period of one (1) year after conclusion of purchase, that purchaser shall not, without the prior written consent, directly or indirectly solicit, hire, entice, or encourage any person currently employed or who within six (6) months prior to the termination shall have been an employee or consultant of GrayMatter, to leave his or her employment or consulting position with the GrayMatter, or engage, or attempt or agree to engage, in any capacity, the services of any such person, or aid or assist anyone else to do so. 

This document contains proprietary and confidential information belonging to Gray Matter Systems, LLC. Neither this document nor the information disclosed herein is to be reproduced or transferred, in part or in whole, to other documents, or used or disclosed for any other purpose to any third parties.