1. Introduction
These Terms and Conditions (“Agreement”) are the default terms for engineering and design services provided by Evertech, Inc. (“Evertech,” “we,” “us,” or “our”) to our clients (“Client,” “you,” or “your”), including hardware, firmware, enclosure, design for manufacturability, EMI/EMC, and new product introduction work. By accepting an engineering quotation or issuing a purchase order for engineering services, you agree to be bound by these terms.
Project agreements come first. Many engineering projects have their own signed agreement or statement of work. Where one exists, it controls, and these terms apply only to matters it does not cover. If documents conflict, a written agreement signed by both parties controls first, then Evertech’s quotation, then these terms. The version of these terms in effect on the date of Evertech’s quotation applies to that project.
Manufacturing. Prototype and production builds are covered by Evertech’s Terms and Conditions for PCB Assembly Services.
2. Scope and Changes
Scope. The quotation describes the services, the deliverables, the requirements the design must meet, and any schedule. Schedules are estimates unless the quotation says a date is firm.
Changes. Changes to requirements or scope after work begins may change price and schedule. Evertech will tell the Client the effect before doing work that changes the price, and the changed work proceeds once the Client approves it in writing.
Client inputs. The Client will provide requirements, information, samples, and decisions in a timely manner and is responsible for their accuracy. Delays in Client inputs or approvals extend the schedule.
3. Pricing Models
The quotation states which of the following pricing models applies.
Hourly. The Client pays for the hours worked at the rates in the quotation. Any total given is an estimate and not a cap unless the quotation says otherwise. Evertech will tell the Client before it exceeds an estimate.
By project. The Client pays the fixed price in the quotation for the defined scope and deliverables, at the milestones in the quotation. If the quotation gives no milestones, Evertech invoices on delivery.
Amortized into production. Evertech quotes an engineering fee and recovers it through an amount added to the unit price of the Client’s first production orders, as set out in the quotation. The Client pays nothing toward the engineering fee up front. Payment begins only after Evertech delivers a working product, as defined in Section 4.
4. Amortized Engineering
This Section applies only when the quotation uses amortized pricing.
What “working product” means. A working product is the set of deliverables listed in the quotation or engineering agreement that meets the written requirements stated there. Those documents define the deliverables and requirements for each project, and the deliverables may be something other than a finished production unit. General descriptions on Evertech’s website or in its marketing do not add to them.
Acceptance. The Client will review what Evertech delivers and report in writing, within ten (10) business days of receipt, any failure to meet those requirements. Deliverables not rejected in that time are accepted as a working product.
When the remaining fee becomes due. The part of the engineering fee not yet recovered becomes due, and Evertech may invoice it, if the Client (a) has the product, or a product derived from the design, built by anyone other than Evertech, (b) asks for the design package before the fee is recovered, or (c) has not ordered enough product to recover the fee within the period stated in the quotation or, if no period is stated, within twelve (12) months after Evertech delivers a working product.
Cancellation before delivery. If the Client cancels the project before Evertech delivers a working product, the Client will pay for the work performed through the date of cancellation at Evertech’s standard hourly rates, up to the quoted engineering fee, plus the expenses described in Section 5.
5. Expenses and Payment
Expenses. Unless the quotation says otherwise, the engineering fee does not include prototype materials, bare boards, components, tooling, test fixtures, third-party laboratory or certification fees, or shipping. Evertech quotes these separately or, when they are not quoted, invoices them at cost.
Payment. Invoices are due NET 30 days from the invoice date unless otherwise agreed. Past-due amounts accrue a late charge of 1.5% per month (18% per year), or the highest rate permitted by law if that is lower, from the due date until paid. Evertech may suspend work while any payment is past due. The Client is responsible for all costs of collection, including reasonable attorneys’ fees. Prices are in U.S. Dollars and do not include sales, use, or similar taxes, which are the Client’s responsibility.
6. Intellectual Property
Client materials. The Client keeps ownership of the designs, specifications, and other materials it provides, and gives Evertech the right to use them to perform the services. The Client represents that it has the right to provide them.
Project deliverables. When the Client has paid in full for the engineering services, including any engineering fee being recovered under Section 4, the Client owns the deliverables listed in the quotation that were created specifically for the Client’s product. Until then they remain Evertech’s property, and the Client may use them only to evaluate the design and to buy products from Evertech.
Design files. Standard deliverables are the manufacturing outputs named in the quotation. For a circuit board these are typically Gerber or ODB++ files, a bill of materials, assembly drawings, and 3D STEP files. Native source files, such as schematic and layout source, firmware source code, and mechanical CAD source, are deliverables when the quotation lists them.
Evertech background technology. Evertech keeps ownership of everything it owned or developed outside the project and of the general-purpose items it uses across projects, including component libraries and footprints, reusable firmware modules and drivers, test and programming software, tools, and methods (“Background Technology”). Where Background Technology is built into a deliverable, Evertech grants the Client a perpetual, worldwide, royalty-free, non-exclusive license to use it as part of the Client’s product, including to make, sell, modify, and support that product. The Client may not offer Background Technology separately from its product.
Third-party and open-source components. Deliverables may include third-party or open-source components, such as vendor software development kits and real-time operating systems, which are provided under their own licenses. Evertech will identify them on request.
General know-how. Evertech may use the general skills, knowledge, and techniques it gains from the work in other projects, provided it does not use or disclose the Client’s confidential information.
7. Standard of Work and Limited Warranty
Evertech will perform the services in a professional manner using qualified engineers. If a deliverable does not meet the written requirements in the quotation and the Client reports it in writing within ninety (90) days after delivery, Evertech will correct the deliverable at no charge or, if it cannot, refund the fees paid for that deliverable. This is the Client’s sole and exclusive remedy for defective engineering services. This warranty does not cover problems caused by information or materials supplied by the Client, changes made by anyone other than Evertech, or use outside the agreed requirements.
EXCEPT AS EXPRESSLY STATED IN THIS SECTION, EVERTECH MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
Evertech does not warrant that a design will be free of errors, that firmware will be free of defects or security vulnerabilities, or that a product will pass any test or obtain any certification or regulatory approval.
8. Prototypes, Testing, and Regulatory Compliance
Prototypes. Prototypes and pre-production units are for evaluation and testing only. They are not certified, and the Client must not sell them, deploy them in the field, or use them where a failure could cause injury or property damage unless Evertech agrees in writing.
Testing and certification. Compliance testing, such as FCC, CE, and safety testing, is performed by third-party laboratories. Evertech supports that testing as described in the quotation and does not guarantee its outcome.
The Client’s product. The Client is responsible for the regulatory strategy, certifications, approvals, labeling, and safe use of its product, and for the decision to release it for sale. Quality-system or regulatory requirements that apply to the engineering work, such as design controls for a medical device, must be stated in the quotation.
Third-party rights. Evertech will not knowingly use another party’s intellectual property without the right to do so. Evertech does not perform patent searches or clearance and does not warrant that a design is free of third-party claims.
9. Limitation of Liability
Evertech’s total liability for any claim arising from or related to its engineering services is limited to the fees paid by the Client for the services giving rise to the claim. This limit applies to every claim, whether in contract, warranty, tort (including negligence), strict liability, or any other legal theory, and applies even if a limited remedy fails of its essential purpose.
IN NO EVENT WILL EVERTECH BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PRODUCT RECALL COSTS, OR BUSINESS INTERRUPTION, EVEN IF ADVISED OF THEIR POSSIBILITY.
Indemnity. The Client will defend, indemnify, and hold Evertech harmless from third-party claims arising from the Client’s product, including its use, sale, labeling, and regulatory status, and from any claim that materials or requirements supplied by the Client infringe the rights of a third party, except to the extent the claim is caused by Evertech’s breach of this Agreement.
Time to bring claims. To the extent permitted by law, any claim against Evertech arising from or related to its engineering services must be brought within one (1) year after the claim accrues.
10. Confidentiality and Publicity
Confidentiality. Each party will keep confidential the non-public business and technical information it receives from the other party, including designs, files, specifications, pricing, and processes, and will use it only to quote, perform, or receive the services. These obligations do not apply to information that is or becomes public through no fault of the receiving party, that the receiving party already knew or develops independently, or that it lawfully receives from a third party without restriction. A party may disclose confidential information when the law requires it, after giving the other party notice where it is allowed to.
Subcontractors and suppliers. Evertech may share the Client’s information with its subcontractors, suppliers, and service providers as needed to quote and perform the work, and will share only what they need.
Term and non-disclosure agreements. These obligations continue for three (3) years after the project ends, and for trade secrets as long as they remain trade secrets. If the parties have signed a non-disclosure agreement, that agreement governs confidential information and controls over this Section.
Publicity. Evertech will not name the Client or show its product publicly without the Client’s written permission. Evertech may describe the type of work it performed in general terms that do not identify the Client.
11. Termination
The Client may end a project at any time by written notice. Evertech may suspend or end a project if the Client fails to pay an amount within ten (10) days after written notice that it is past due, or does not provide needed inputs or approvals within sixty (60) days after a written request. On termination the Client will pay for all work performed and expenses committed through that date: the hours worked for hourly work, the completed milestones and work in progress for fixed-price work (not more than the fixed price), and the amounts in Section 4 for amortized work. Once all amounts due are paid, Evertech will deliver the deliverables completed to that date in the form the quotation calls for.
12. General
Independent contractor. Evertech performs the services as an independent contractor. Evertech may use qualified subcontractors and remains responsible for their work.
Export-controlled information. Before sending Evertech any information that is subject to export controls, including the International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations (EAR), or that must stay in the United States, the Client must identify it to Evertech in writing so that Evertech can decide whether and how it can accept it.
Force majeure. Evertech is not liable for failure or delay in performing its obligations if the failure or delay is caused by events beyond its reasonable control.
Governing law. This Agreement is governed by the laws of the State of Wisconsin, without regard to its conflict of laws principles. Any dispute will be brought only in the state courts located in Ozaukee County, Wisconsin, or the United States District Court for the Eastern District of Wisconsin, and each party consents to the jurisdiction of those courts. In any action to collect amounts due under this Agreement, Evertech may recover its reasonable attorneys’ fees and costs.
Entire agreement. This Agreement, together with Evertech’s quotation and any agreement signed by both parties for the project, is the entire understanding between the parties about the engineering services. A signed non-disclosure agreement remains in effect. Terms in the Client’s purchase order or other documents that add to or conflict with this Agreement do not apply unless Evertech agrees to them in writing.
Assignment. Neither party may assign this Agreement without the other party’s written consent, except to a successor in a merger, acquisition, or sale of the business.
Notices. Notices under this Agreement must be in writing and may be sent by email. Notices to Evertech go to contact@evertechinc.com, and notices to the Client go to the contact named on the quotation or purchase order.
Severability and waiver. If any provision of this Agreement is held unenforceable, the rest remains in effect. A failure to enforce a provision is not a waiver of it.
Survival. Sections 4 through 10 and this Section survive completion or termination of a project.
13. Contact Information
For any questions or clarifications regarding these Terms and Conditions, please contact Evertech, Inc. at: