HELLIER TRAINING AND SERVICE TERMS AND CONDITIONS

These Training and Service Terms and Conditions are agreed by and between HELLIER (“Hellier”) and any third party engaging Hellier to perform training or other services (the “Services”).  Any such third party engaging Hellier to perform the Services is referenced herein as the ”Company”.  Commencement of Services shall be deemed Company’s full acceptance of these Training and Service Terms and Conditions as the sole terms and conditions applicable to any given Services, irrespective of when or whether these Training and Service Terms and Conditions are actually signed by the Company.  No terms or conditions delivered with or contained in any request for Services, purchase order or any other document received from Company shall form part of the agreement of Hellier to perform Services and Company waives any right which it may otherwise have to rely on such terms and conditions.  Any purported variation of these terms and conditions shall have no effect unless expressly agreed to in writing and signed by an authorized representative of Hellier, and Hellier’s performance of Services are expressly conditioned upon these Training and Service Terms and Conditions being in full force and effect.  These Training and Service Terms and Conditions, along with any applicable proposal, work description or statement of work, are referenced herein as the “Agreement”.

SCOPE OF SERVICES.  The agreement of Hellier to perform Services extends only to those Services specifically described and provided for or agreed in writing by Hellier.  Any descriptions, statements, comments or expressions made by a Hellier employee reflect the opinion or observations of that employee based solely upon information provided by the Company and/or the data available at the time, and are not intended, nor can they be construed, as representations or warranties as to the actual circumstances.  Pricing is based on Hellier’s standard service training, techniques and protocols unless otherwise specifically stated.  Any request for non-standard training, techniques or protocols in performing the Services must be identified by the Company prior to commencement.  In such event, additional fees may apply.

STANDARD OF CARE.  In performing training-related Services, Hellier will use its best, commercially reasonable efforts to properly and thoroughly conduct all training, and to answer to the best of its abilities at the time all questions raised by Company’s designated participants.  It is the participant’s responsibility to take all training seriously and to obtain from Hellier’s designated training representatives any necessary clarification of anything not fully understood.  In the event that any question remains unanswered upon completion of the training, participants shall have the responsibility to ensure that full clarification if provided.  In performing other services not related to training, Hellier shall use the degree of care and skill ordinarily exercised under similar circumstances by others performing similar services in the same or similar locality.  No other warranty, expressed or implied, is made or intended by Hellier, and all other warranties are expressly disclaimed.  Hellier does not guarantee that all Services will be completely error-free and Hellier will not assume any legal, compliance or operational responsibilities of the Company, including without limitation for Company’s training, engineering, repair, maintenance and use decisions.  In addition, Hellier will not be responsible for issues or expenses arising from or in connection with the acts or omissions of the Company, its personnel or any third parties, or from circumstances beyond Hellier’s reasonable control.  In the event of any breach of this warranty, Hellier’s sole and exclusive obligation will be to correct or re-perform the deficient Service or, at Hellier’s option, to refund the amount paid for the deficient Service.  

PAYMENT TERMS.  Payment terms shall be payment in full within 30 days of invoice without deduction or set-off.  Hellier reserves the right to charge interest at a rate of 12% per year on outstanding accounts.  Hellier also reserves the right to charge for any extra costs that are incurred as a result of delays, cancellations, or postponements resulting from the Company’s provided direction, acts or omissions; from the Company’s delays or lack of instructions, from mistakes for which Hellier is not responsible hereunder and otherwise from circumstances beyond Hellier’s control.  The Service fees quoted exclude taxes, incidental expenses and all costs of re-performance or abortive visits.  The Company will be notified of applicable additional costs as and when they occur, and the costs will be added to the contract price.  Materials that are not accepted by the Company upon presentation will be promptly disposed of by Hellier.

LIMITATIONS OF LIABILITY.  Nothing in this agreement shall be construed to mean that Hellier assumes any liability on account of injury to persons or property, including death, except and only to the extent those directly caused by the negligent or wilful misconduct of Hellier in the context of performing the requested Services.  In no event shall Hellier's aggregate liability for any reason, in connection with any claim asserted, exceed the amount paid for the Services in question.  Hellier shall not be held responsible or liable for any loss, damage or delay caused by accidents, strikes, fires, floods, or other circumstances or causes beyond Hellier's control, including actions taken or not taken by the Company, its personnel or third parties.  In no event shall Hellier be liable for indirect, incidental, special, punitive, exemplary or consequential damages (including, without limitation, damages relating to lost profits, lost revenues or loss of business; downtime, loss of use, business interruption, or lost productivity; economic loss; overhead expenses; lost savings; damage to reputation or loss of goodwill) even if Hellier was apprised of the likelihood of such damages and irrespective of the nature of the claim asserted.

MISCELLANEOUS.  These Training and Service Terms and Conditions and any applicable proposal, work description or statement of work constitute the entire agreement between the parties, and all prior agreements, written or oral, relating to the Project or Services are superseded by the terms hereof.  This Agreement may only be modified by a writing signed by both parties.  The rights and obligations of the parties hereunder shall not be waived except in writing signed by the waiving party.  The quoted pricing is personal to the Company and the Company shall not assign or transfer its rights or obligations under this Agreement except with the prior written consent of Hellier.  The provisions of this Agreement are severable and in the event any provision is held to be unenforceable, the remaining provisions will continue in full force and effect.  It is understood that Hellier is an independent contractor and not an employee or agent of Company.  This Agreement is governed by and shall be construed in accordance with the laws of the location where the Services are to be performed without regard to any conflicts of laws principles thereof.