Terms & Conditions

for engineering services


These Terms apply to all Services and Deliverables that are provided by FTI to the Customer under the Contract. Except as otherwise set forth in the Service Order, these Terms supersede and shall govern the Contract to the exclusion of all other terms and conditions contained in any purchase order, acceptance or any other document submitted by the Customer or in any brochure, advertisement or other publication of either FTI or Customer. Unless FTI expressly agrees in writing, FTI shall not be bound by any terms or conditions, whether written, oral or otherwise that are inconsistent with, different or vary from, or are in addition to these Terms and any such terms or conditions shall be null and void and of no effect whatsoever. Customer shall be deemed to have accepted these Terms if Customer requests FTI to provide the Services or Deliverables.

The words and phrases used in these terms shall have the following meanings unless the context otherwise requires:

“Background Intellectual Property” means all intellectual property, including, but not limited to calculation procedures, data, models, software, know-how, ideas, inventions, methods, operations, trade secrets, knowledge and expertise existing and in FTI’s possession prior to the date of the Contract which FTI may bring to bear or provide in the course of carrying out or supplying the Services and the Deliverables, whether or not contained in documents or other materials, and whether or not in the public domain, but not including common knowledge in the field in which the Services and the Deliverables are provided at the date of the Service Order.

“Confidential Information” means any information or data relating to each party and its technology, research, business or affairs including, without limitation, the Contract, the price, any terms in any proposal, the Service Order, these Terms and, in the case of FTI, the Background Intellectual Property and all Developments and, in the case of Customer, the Input Material, disclosed either in writing, orally or by any other means to the other party by that party, or by a third party on that party’s behalf, and whether before or after the date of the Contract either marked as being confidential information or by its nature can reasonably be assumed to be confidential.

“Confidentiality Agreement” means the confidentiality agreement or non-disclosure agreement, if any, entered into between the parties.

“Contract” means, collectively, the Service Agreement between FTI and Customer for the provision of the Services, including these Terms, the Service Order and the Confidentiality Agreement (if any).

“Customer” means the party named on the Service Agreement for whom FTI has agreed to provide the Services and the Deliverables in accordance with these Terms.

“Deliverables” means the goods and or other deliverables (including any installment of them or any parts of them) (if any) which FTI is to supply to Customer in accordance with these Terms as more particularly set out in the Service Order.

“Developments” means all intellectual property, including, but not limited to calculation procedures, data, models, software, know-how, ideas, inventions, methods, operations, trade secrets. knowledge and expertise that is created, conceived or developed by or on behalf of FTI under the Contract (including without limitation all developments, improvements, modifications and variations of Background Intellectual Property), whether or not contained in documents or other materials, whether created, conceived or developed alone or jointly with Customer and whether or not in the public domain, but not including common knowledge in the field in which the Services and the Deliverables are provided at the date of the Service Order.

“FTI Engineering” means Fallbrook Technologies Engineering, a business unit of Fallbrook Technologies Inc.

“Input Material” means any documents or other materials, and any data or other information provided by or required from Customer relating to the Services and the Deliverables.

“Intellectual Property Rights” means all and any intellectual property rights of any kind and rights of a like nature wherever and whenever arising and whether registered or unregistered and including, without limitation, any patents, copyright, registered designs, design rights, trade secret rights, topographic rights, database rights and rights in Confidential Information, trademarks, trade names, including, without limitation, the name “Fallbrook Technologies”, or service marks.

“Services” means the engineering services to be provided by FTI for the Customer as more particularly set forth in the Service Order.

“Service Order” means the document provided by FTI to Customer to which these Terms are attached that includes a description of the Services, the Deliverables and the required payments, as well as certain other terms and conditions, and to which Customer has agreed, and which may be amended by a writing signed by authorized parties from both Customer and FTI.

“Terms” means the quotation, service agreement, work order, service order or other standard terms and conditions for the supply of the Services set out in this document and includes any special terms and conditions agreed in writing between FTI and the Customer as set out in the Contract and/or the Service Order.

2.1. FTI will provide, and Customer shall purchase, the Services and Deliverables as defined in the Service Order and any amendments or change orders accepted in writing and executed by authorized representatives of both parties. Any request from Customer that requires extra work, or additional time, or increases FTI’s costs will require an amendment or change order agreeable to both parties.

2.2. FTI may use contractors in providing the Services or Deliverables. Such contractors shall provide the Services and Deliverables in accordance with the Contract.

2.3. No order submitted or proposal accepted by Customer shall be deemed to be accepted by FTI unless and until confirmed in a written services agreement or Service Order signed by authorized employees or agents of Customer and FTI.

2.4. The extent and the scope of the Services and any assumptions on which the Services are to be provided by FTI to Customer are detailed in the Service Order. It shall be the Customer’s sole responsibility to ensure that the assumptions made in the Service Order are correct and to advise FTI of any incorrect assumptions prior to the commencement of the Services. In the event that any of the assumptions are incorrect, FTI reserves the right to make such amendments to the Service Order (including without limitation the scope of work, the Price, the estimated timetable and any other matters) as it deems appropriate.

2.5. FTI shall not be obligated to commence work in respect of the Services until: (a) a signed service agreement is fully executed by both parties with services, deliverables and payment schedule agreed to by both parties, (b) FTI has received and accepted Customer’s purchase order for the Services; and (c) FTI has received from Customer all appropriate and necessary Input Material to commence the Services as identified in the Service Order.

2.6. Notwithstanding anything in these Terms to the contrary, FTI may at any time make changes to the Services that are necessary to comply with applicable safety and/or other statutory requirements, provided it notifies Customer in a timely manner of such necessary changes.

3.1. FTI will perform the Services and provide the Deliverables as set forth in the Service Order. Customer will, at its own cost and expense, perform the obligations and the responsibilities identified expressly as Customer’s responsibilities in the Service Order or any amendments thereto (the “Customer Responsibilities”). FTI’s failure or delay in performing any of its obligations under the Contract will be excused if such failure or delay results from Customer’s failure to perform any Customer Responsibilities, including the failure to perform within the specified time period, or, if no time period is specified, within a reasonable time. Additionally, FTI shall not be responsible for any delay to the Services or Deliverables caused by (a) the inadequacy or the delay in provision of any Input Material to be supplied by Customer and/or third party suppliers, whether or not use of such supplier was directed by Customer; or (b) the failure or malfunction of any Input Material. In the event of any such delay, FTI may extend the timetable and charge Customer for any additional cost incurred in re-allocating estimated resources.

3.2. To allow appropriate flexibility regarding the provision of the Services, a system of project variation requests, or change orders, will be implemented. The project variation request may be made by Customer or FTI and may include, without limitation, changes to the objectives, scope of work, Deliverables, timing, responsibilities, assumptions, Price or delays caused by Customer and/or third party suppliers, whether or not use of such supplier was directed by Customer, and shall be agreed by the parties in writing in a timely manner so as not to prejudice any timing schedule agreed between the parties. FTI shall be entitled to charge for any additional cost incurred as a result of any project variation. Subject to Section 3.6, no project variation shall take effect unless and until agreed to in writing by the Project Manager of FTI or such other person who may be designated by FTI to Customer as duly authorized for the purposes of this Section 4.2.

The Deliverables shall be as specified in the Service Order.

The price shall be as specified in the Service Order. The price is exclusive of all taxes (other than income tax) including, but not limited to sales, use, excise, value-added, services and consumption taxes and customs and import duties, which will be invoiced to, and payable by, Customer in addition to the price. The price is based on the assumption that the Services will commence at the date confirmed by FTI and will be performed according to the time schedule set forth in the Service Order. Unless otherwise provided in the Service Order, the price shall include all administrative charges including, without limitation, postage, telephone, fax and similar expenses specifically identified as being part of the price in the Service Order. All other costs and expenses not so identified, including, without limitation, shipping, freight, packaging, transport, spare and replacement parts, equipment, materials, components and license fees, shall be invoiced separately by FTI to Customer and shall include a handling charge of 10%. Additionally, the price does not include unforeseen and unplanned charges due to delays or additional work caused by Customer and/or component or system supplier(s), effects of revisions to the Services or Deliverables requested by Customer and agreed to by FTI, travel and accommodation costs of Customer’s personnel, or travel and accommodation costs for FTI personnel traveling beyond the scope of the Services as outlined in the Service Order. All such additional costs shall be the sole responsibility of Customer. For the avoidance of doubt, the Price does not include the cost of searches in third party indexes to identify any existing third party rights and FTI shall not conduct any such searches unless specifically requested to do so by Customer at Customer’s sole cost.

5.1. FTI shall invoice Customer for the price and other sums payable in accordance with the payment schedule set out in the Service Order. In the absence of a payment schedule in the Service Order, FTI shall be entitled to invoice Customer for all work undertaken on a monthly basis. The price is quoted in and is payable in U.S. Dollars.

5.2. Payment of each invoice amount, without any deduction, is due upon receipt of the invoice. Payments shall be considered past due if not paid within fifteen (15) days of payment due date. On any past due invoice, FTI may, at its sole discretion, charge interest from the payment due date to the date of payment of up to the greater of (i) 1.5% per day and (ii) the maximum allowable under applicable laws, plus in each case any attorney fees or collection costs.

5.3. In the event that payment is not received within thirty (30) days of the date of FTI’s invoice, in addition to the additional interest charge set forth in Section 6.2, FTI shall be entitled in its sole discretion to take either or both of the following actions: (a) suspend performance of the Contract without any liability until the outstanding amount is paid in full and any times agreed for the provision of the Services or Deliverables shall be amended accordingly; and (b) terminate the Contract in accordance with Section 16.2.2.

5.4. If, by reason of any rise in costs beyond FTI’s reasonable control (including, without limitation, the cost of materials, fuel, transport, shipping, insurance or the cost of complying with any statutory provision or order, regulation or by-law), the cost to FTI of providing the Services or Deliverables shall increase, FTI shall, in its sole reasonable discretion, be entitled to increase the price to reflect such increased cost.

5.5. If any deduction or withholding is required by any law, practice or regulation (whether or not such practice or regulation has the force of law) in respect of any payment due from Customer to FTI under the Contract or is in any event made, the relative sum payable by Customer shall be increased so that, after making the minimum deduction or withholding so required, Customer shall pay to FTI and FTI shall receive and be entitled to retain on the due date for payment a net sum at least equal to the sum which it would have received had no such deduction or withholding been required to be, or had in fact been, made.

In addition to any Customer Responsibilities set forth in the Service Order or any amendments thereto, the Customer Responsibilities shall include:

6.1. Supply to FTI all Input Material (and any needed spares or replacements thereof), permits, licenses, approvals and consents necessary for FTI’s performance hereunder, within sufficient time to enable FTI to provide the Services or the Deliverables in accordance with the Service Order;

6.2. be responsible for ensuring that any Input Material supplied is accurate, in working order and free from defects of any kind and complies with all applicable laws and regulations;

6.3. provide any needed technical support associated with any Input Material or components thereof as may be required in order to support FTI’s performance hereunder;

6.4. provide instructions and feedback when requested in a timely manner and, in the event of suspension of the Contract due to lack of instructions, reimburse FTI for extra costs and expenses suffered or incurred;

6.5. provide FTI’s employees, contractors and such other personnel involved in performing the Services or providing the Deliverables, as identified by FTI, with training in Customer’s systems and equipment, as may be required for the satisfactory delivery of the Services or Deliverables;

6.6. be responsible for the health and safety of FTI’s employees, contractors and personnel while on Customer’s premises or using any of Customer’s systems or equipment including, without limitation, Input Materials, whether on or off Customer’s premises; and

6.7. notify FTI promptly of any risk, safety issues or incidents arising regarding the Input Material or in any processes or systems used at Customer’s premises.

FTI shall appoint a project manager to manage the provision of the Services and communicate with Customer as necessary by appropriate means. Customer shall identify a representative to communicate with the project manager in respect of the provision of the Services. Any instruction given by Customer’s representative shall be binding on Customer.

Unless otherwise specified in a Service Order, all deliveries are ex works FTI shipping dock (“Delivery”) and thus, Customer is responsible for all expenses related to shipping, insurance, duties, etc. of Delivery. Title and risk of loss pass to Customer, subject to restrictions found herein, upon Delivery of the products to the appropriate shipping dock ready for pickup by Customer’s representative at the agreed upon delivery date.

9.1. Upon payment by Customer of the total price due to FTI and any other costs and expenses provided for under the Contract, all Deliverables, but excluding any Background Intellectual Property Rights therein, shall become the sole property of Customer.

9.2. Customer accepts that, during the performance of the Services, FTI may use and/or apply FTI’s Background Intellectual Property and/or FTI’s Developments. Customer shall not obtain or have any rights in such Background Intellectual Property or Developments made by FTI or on FTI’s behalf or any representation of the same whether developed or made by FTI or on FTI’s behalf in connection with FTI’s performance hereunder. All title, rights and Intellectual Property Rights in the Background Intellectual Property, improvements thereto and any Developments made by FTI or on FTI’s behalf, whether solely or jointly with Customer, are and shall remain the sole and exclusive property of FTI, subject only to the limited license set forth in Section 10.6.

9.3. Any Input Material provided by Customer shall belong to Customer subject to FTI’s right to use such Input Material in connection with FTI’s performance hereunder.

9.4. Any intellectual property created, conceived and developed solely by either party in efforts unrelated to the Services shall belong to the party developing such intellectual property.

9.5. Subject to Section 10.2, any intellectual property that Customer may solely create, conceive or develop during the execution of the Services that is not an improvement to the Background Intellectual Property shall belong to Customer.

9.6. Upon the passing of property in the Deliverables to Customer in accordance with Section 10.1, FTI shall grant Customer a non-exclusive, perpetual, royalty free license, but without the right of sub-license (except in accordance with this Section), and only transferable in conjunction with a sale or transfer of Deliverables, under FTI’s Intellectual Property Rights in the Background Intellectual Property and Developments in the Deliverables solely for the purpose of and in connection with the manufacture, use, sale and import of Deliverables as contemplated in the Service Order and not for any other purpose without FTI’s express prior written consent. The rights granted by this Section may only be sub-licensed to such of Customer’s production suppliers who have a need to know and solely on the basis that (i) such sub-license is only for use in connection with Customer’s reproduction, use or sale of the Deliverables and (ii) notice and details of such sub-license, including without limitation the name of the sub-licensee, are promptly given to FTI.

9.7. Notwithstanding any other provision of the Contract, Customer shall not be entitled to use in any way the name “FTI” or “Fallbrook Technologies” without the express prior written consent of FTI to the specific use.

10.1. FTI warrants that:

10.1.1. it will perform the Services using all reasonable skill and care in accordance with good and current engineering practice; and

10.1.2. FTI is the owner of physical possession of the Deliverables and is free to transfer physical ownership of the Deliverables to Customer as indicated in the Contract, except for those instances when, at Customer’s request, FTI has been asked to include products and/or information of Customer or any third party in the Deliverables.

10.2. In the event of a breach of the warranties contained in Sections 10.1.1 and 10.1.2 above, FTI shall, at its sole discretion, either replace the defective deliverable or refund the applicable fees for the services. In no event shall FTI’s liability exceed the limit provided in Section 11.9 below.

10.3. Customer warrants that it is the owner of the beneficial rights in the Input Material and its use by FTI for the purpose of providing the Services will not infringe the copyright or any other rights or Intellectual Property Rights of any third party. Customer further warrants that none of the Services requested or Deliverables specified infringe the Intellectual Property Rights of any third party.

10.4. In the event of a breach of the warranty in Section 10.3 above, FTI shall be entitled, at its sole option and without prejudice to any other right or remedy it may have, to suspend provision of the Services without liability to Customer to allow Customer, at its own expense, a maximum of 14 days to: (a) procure the right for FTI to continue using the Input Material; or (b) make such alterations, modifications or adjustments to the Input Material so that it becomes non-infringing without incurring a material diminution in performance or function; or (c) replace the Input Material with non-infringing substitutes provided that such substitutes do not entail a material diminution in performance or function; provided, however, that any times agreed for the provision of the Services and Deliverables shall be amended accordingly, Customer shall be additionally liable for FTI’s costs incurred during the period of suspension and, if Customer is unable to rectify the infringement in accordance with this Section 10.4, FTI shall be entitled to terminate the Contract in accordance with Section 15.2.


10.6. Where FTI provides any Deliverables that contain or rely upon components, parts, software or other third party products, FTI gives no warranty, guarantee or other term as to their freedom from defect in material or workmanship, noninfringement, merchantability, fitness for particular purpose or intended use or otherwise. FTI shall to the extent possible assign to Customer the benefit of any warranty, guarantee or indemnity given by the supplier of the relevant components, parts, software or third party products to FTI.

10.7. To the fullest extent permitted by Governing Law FTI shall not be liable to Customer for any loss of profit or indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of FTI, its servants, agents or otherwise) which arise out of or in connection with the provision of the Services or the Deliverables or their use by Customer.

10.8. To the fullest extent permitted by Governing Law FTI’s total liability to Customer shall not exceed the compensation received by FTI during the last twelve (12) months under the Contract. No claim will be valid if presented to FTI more than three years after substantial completion of the Services or, if shorter, the applicable statute of limitations period.

10.9. FTI will use its reasonable efforts to deliver the Deliverables in accordance with the estimated timetable set out in the Service Order. The timetable is an estimate only and FTI accepts no responsibility or liability, financial or otherwise, in the event that the estimated delivery schedule is not complied with.

Customer agrees to hold harmless, indemnify, and defend FTI and its affiliates and subconsultants and their employees, officers, directors and agents against all claims, suits, fines and penalties, attorneys’ fees and other costs of settlement and defense, which claims, suits, fines, penalties or costs arise out of or are related to the Contract or the Services or Deliverables, except to the extent they are caused by FTI’s negligence. Customer specifically agrees to provide notice to FTI of any third party Intellectual Property Rights (“Third Party Rights”) that it is aware of or reasonably should have been aware of related to the Services or Deliverables and shall indemnify and hold FTI harmless from any claim that any specified Service performed by, or Deliverable specified provided by, FTI infringes any such Third Party Rights.

FTI is not liable for failure to fulfill any obligation under any Contract arising from acts of God or other force majeure events beyond the reasonable control of FTI, including, without limitation, any act of God, riots or insurrections, acts of terrorism, war (whether declared or not), civil disturbance, acts of destruction, import or export regulations, strike lock-out or trade dispute (whether involving its own employees or those of any other person) or other industrial disturbances, breakdown of machinery, fire, flood or unavoidable accident.

The Deliverables, as well as other related technology or documentation may be subject to export control laws, provisions of the Export Administration Act and the Export Administration Regulations promulgated thereunder, or the Arms Export Control Act or the International Traffic in Arms Regulations. It is Customer’s sole responsibility to ensure compliance with any applicable regulations prior to exporting the Deliverables.

14.1. The parties acknowledge and agree that the Confidentiality Agreement (if any) shall continue to apply regarding the Contract. If there is not a Confidentiality Agreement in place between the parties, Sections 14.2 and 14.3 shall apply.

14.2. The parties hereby acknowledge that the party receiving Confidential Information (as the “Receiving Party”) from the other (the “Disclosing Party”), in respect of all such Confidential Information, will: (a) treat it as confidential, (b) restrict its disclosure to such of its employees, agents and professional advisors as have a need to know and subject always to such employees and agents being under a similar duty of confidentiality; (c) not use the Confidential Information for any purpose other than that contemplated by the Contract; and (d) not disclose it to any third party without the prior written consent of the Disclosing Party.

14.3. The requirements of Section 14.2 shall not apply to any Confidential Information which: (a) is or becomes public knowledge without breach of this Condition by the Receiving Party; or (b) was in the Receiving Party’s possession prior to receipt from the Disclosing Party or developed for or by the Receiving Party at any time independently of any disclosure by the Disclosing Party; or (c) is provided to the Receiving Party by another who is not under an obligation to maintain its confidentiality; or (d) the Receiving Party is required to disclose by law or other competent authority provided that the Receiving Party notifies the Disclosing Party, if permitted by law, as soon as it receives such a request for disclosure and affords to the Disclosing Party all such reasonable assistance (at the sole cost of Disclosing Party) as the Disclosing Party may request to prevent or limit such disclosure.

15.1. The Contract shall continue in full force and effect until completion by both parties of their respective obligations hereunder unless otherwise provided in the Service Order or terminated earlier in accordance with Section 16.2.

15.2. The Contract may be terminated by:

15.2.1. either party if the other continues in default of any obligation imposed upon it hereunder for more than 30 days after written notice requesting the other to remedy such default;

15.2.2. FTI on written notice to Customer in the event that Customer fails to pay FTI amounts due hereunder and/or fails to make payment after a further request for payment;

15.2.3. either party in the event the other party (i) applies for or consents to the appointment of a receiver, trustee, liquidator, or custodian or the like for itself or any of its properties; (ii) is unable to pay its debts generally as they become due; (iii) makes a general assignment for the benefit of creditors; (iv) is adjudicated bankrupt or insolvent; (v) commences a voluntary case under the federal bankruptcy laws of the United States of America or (vi) if without its application, approval, or consent a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization, or relief of debtors; or

15.2.4. by either party on 30 days written notice to the other party if an event of Force Majeure affects the other party from properly performing its obligations under the Contract for a continuous period of at least 4 weeks.

15.3. In the event of termination of the Contract for any reason, Customer shall pay FTI for all Services performed and Deliverables produced up to the date of termination.

15.4. In the event of termination of the Contract for any reason (other than by Customer pursuant to Section 15.2.1), Customer shall additionally pay FTI for all costs necessarily and reasonably incurred after the date of termination in winding down the Services.

15.5. Unless otherwise specified in the Service Order, the Input Material will, at FTI’s sole option, be returned to Customer by FTI and/or made available for collection from FTI’s premises.

15.6. No termination of the Contract shall affect the accrued rights and obligations of the parties, nor shall it affect any provision that is expressly or by implication intended to come into force or continue in force on or after such termination.

16.1. Relationship. FTI’s relationship with Customer is that of a supplier, and nothing in these Terms is intended to, or shall be construed to, create a partnership, agency, joint venture, employment or similar relationship. Neither party is authorized to make any representation, contract or commitment on behalf of the other unless specifically requested or authorized in writing to do so. Nothing contained in these Terms shall prevent either party from working with any third party.

16.2. No License. Nothing in these Terms shall be construed as granting Customer with a license under any trade secrets, patents, copyrights, or trademarks owned or controlled by FTI except and solely as expressly provided herein.

16.3. Assignment. Neither party may assign the Contract or any of the benefits or liabilities thereof in whole or in part without the express prior written consent of the other party except as part of a transaction involving substantially all of the assets of the transferring company.

16.4. Governing Law. The laws of the state of Texas will exclusively govern any dispute between FTI and customer, without regard for conflict of laws provisions.

16.5. These Terms, the Service Order and the Confidentiality Agreement (if any) embody the entire understanding of the parties in respect of the provision of the Services and Deliverables by FTI and no prior statements, undertakings, documents or promises whether written or oral, express or implied made by either party shall have any force or effect.

16.6. If any of the provisions of these Terms is found by any court, arbitrator or other competent authority to be void or otherwise unenforceable, either in whole or in part, such provision or part thereof shall be deleted and the remaining conditions shall apply.

16.7. No failure or delay by FTI in exercising any of its rights under the Contract shall be deemed to be a waiver of such right, and no waiver by FTI of any breach of the Contract by Customer shall be considered a waiver of any subsequent breach of the same or any other provision.

16.8. Any notice required or permitted to be given under these Terms shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may be directed to the party giving the notice.