PLEASE READ THE FOLLOWING TERMS AND CONDITIONS COMPLETELY.
THE TERMS AND CONDITIONS FOR THE SALE OF PRODUCTS AND SERVICES ARE LIMITED TO THOSE STATED BELOW. ANY ADDITIONAL TERMS AND CONDITIONS SUCH AS THOSE ON A PURCHASE ORDER SHALL NOT APPLY.
BY ACCEPTING DELIVERY OF THE PRODUCTS OR BY ENGAGING STRATEGIC PRODUCTS AND SERVICES, LLC (“SPS” “We” “Our” or “Us”) TO PERFORM OR PROCURE ANY SERVICES, YOU ACCEPT AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS UNLESS YOU AND SPS HAVE SIGNED A MASTER AGREEMENT, IN WHICH CASE THE TERMS AND CONDITIONS OF THE MASTER AGREEMENT WILL CONTROL.
Important Information About These Terms and Conditions. These Terms and Conditions constitute a binding contract between you and SPS and are referred to herein as either the "Terms and Conditions" or the "Agreement". You accept these Terms and Conditions by making a purchase from, placing an order with, or otherwise requesting products from SPS (the "Products"); or engaging SPS to perform or procure any services (the “Services”). These Terms and Conditions are subject to change without prior notice, except that the Terms and Conditions posted on the SPS website at the time you place an order or sign a Statement of Work will govern the order in question. These Terms and Conditions are the entire understanding between you and SPS and they supersede and replace any and all prior communications, agreements and understandings, whether oral, written, electronic or implied, if any, between us with respect to the order(s) you are placing with SPS.
1. ORDERS. We will provide you with various services (“Services”) and products (“Product(s)”) as specified in a statement of work (“SOW”), Purchase Agreement, Service Agreement, or other formal quote document which will be governed by the terms of this Agreement even in the absence of a reference to the Agreement (“each an Order”). Products and Services may be further described in a Services Description Supplement. You may submit a purchase order as authorization for an Order, however, any terms and conditions stated on it shall not apply to the Order. Changes to an Order will not be effective unless specified in writing and signed by both parties.
2. TERM. This Agreement shall be effective on the date last signed above and shall remain in effect unless you inform us of your intent to cancel the Agreement. Cancellation charges for an Order may apply as detailed in this Agreement or more specifically in an Order.
3. PRICE AND PAYMENT. Unless otherwise set forth in a SOW or Order, you agree to pay an amount equal to fifty percent (50%) of the total charge for Product, and fifty percent (50%) of total charge for Services upon execution of the Order. The remaining balance of Product charges, shipping, plus applicable taxes, is due upon delivery of the Product to your site designated on the Order. The remaining balance of charges for Services, plus applicable taxes, is due upon final invoice. Risk of loss of the Product will pass to you upon shipment and you are responsible for providing and maintaining insurance against loss for the full replacement value of the Products. Title to the Products will pass to you when we receive full payment for the Products. Recurring charges for TotalCare Maintenance Services are invoiced in advance. You must pay all applicable taxes when invoiced unless you provide a valid tax exemption certificate. Invoices are due within thirty (30) days of the date of invoice. For past due invoices, you agree to pay late payment charges of one and one-half percent (1.5%) of the overdue amount per month, or the maximum lawful amount, whichever is less. In the event of a disputed invoice, you agree to pay the entire undisputed amount of such invoice by the due date and to include with the remittance sufficient detail for us to ascertain what amount is in dispute and why. You and we shall use good faith efforts to reconcile the disputed amount within thirty (30) days of receiving notification of any dispute. After one hundred and twenty (120) days any disputes unresolved at that time shall be resolved pursuant to the arbitration provision of this Agreement or referred to a collection agency at our discretion.
4. ORDER CANCELLATION.
Product. If you cancel a Product Order, all Product must be returned in resalable condition which means it is undamaged, factory sealed in the original manufacturers’ packaging, and is complete with all manuals, cables, etc. Prior to returning the Product, you must request a Return Material Authorization (“RMA’”) through our customer service department. You are responsible for shipping the Product(s) back to us. If after receiving and inspecting the Product we find it meets the requirements above, we will credit your account the applicable value of the returned Product less a restocking fee of fifteen percent (15%). If we determine that the Product is not resalable, we will send the Product back to you and no credit will apply. Licenses and all other special order items are non-returnable.
Services. You agree to pay for Time and Material Services rendered up to and through the effective date of cancellation. Unless otherwise set forth in a SOW, you may terminate Installation, Implementation and/or Professional Services upon ten (10) days advance written notification and payment of the fees specified in the Order for such Service(s) up to and through the effective date of termination plus all non-refundable out-of-pocket expenses.
Subscription Services. Cancellation charges for Subscription Services or Software as a Service (the “Services”) are applicable when you acquire the Services from SPS for a term as indicated on the Order. If you cancel the Services prior to the end of the term, you will be obligated to pay to SPS the product of the remaining number of months in the term, or any renewal term, multiplied by the monthly fee in effect at the time of cancellation, plus any past due amounts. You acknowledge that the Services are non-cancelable upon execution of the Order and that you have an unconditional obligation to pay each monthly fee for the term.
Maintenance. If you signed an Order for TotalCare Maintenance Services or Dedicated Technician Services, the termination charge to cancel the Order before the term is over is an amount equal to one year’s fee or payment for the remaining term, whichever is less. If you cancel a pre-paid TotalCare Maintenance Services Order or a pre-paid Dedicated Technician Order before the term is over, the termination charge to cancel the Order before the term is over is an amount equal to the payments for the remaining term.
5. PRODUCT AND SERVICES WARRANTY. We are an authorized reseller of certain manufacturers’ Products and Services and warrant that we are authorized to sell the Products and Services provided to you in an Order. You will receive the manufacturer’s original warranty on the Products you purchase from us and we provide no other actual or implied Product warranty of any kind. Subject to the manufacturer’s warranty and the applicable Services warranty provided by us below, the Product is provided as is. If you purchased full service TotalCare Maintenance Service from us at the time of the original sale, then labor will be provided at no extra charge during the warranty period, otherwise our then current labor charges will apply. The warranty period for Time and Materials, Implementation, Installation and/or Professional Services deliverables will be thirty (30) days from the date on which we inform you that the work is functionally complete.
6. OUR RESPONSIBILITY. We are responsible for providing the Products and Services in a manner using the reasonable care and skill of a competent systems integration services provider.
7. YOUR RESPONSIBILITY. You are responsible for the manner in which you use the Products and Services, including the maintenance and security of your facilities; your choice of equipment; software; related services; and all other matters related to how you use the Products and Services. In the event that the Products contain manufacturer’s software, you shall not resell the software or provide access to the software either directly or indirectly to third parties unless authorized to do so in an Order. You will provide us with all necessary access to the equipment and facilities subject to your normal security policies. You will allow our technicians to conduct a comprehensive operation and performance evaluation of any equipment provided, installed, serviced, or maintained by a vendor other than us. During evaluation, you will make all equipment and services intended for use with the Products and Services available to our technicians, including computers, auxiliary audio and video sources, and all network and telecommunications services (ex: LAN, IP and ISDN). If by mutual agreement any Products owned by us are stored on your premises, then you agree that, (i) at your own expense you will provide and maintain insurance against loss for the full replacement value of the Products listing Strategic Products and Services, LLC as the loss payee and provide us evidence of such insurance, (ii) you will provide us with an inventory report of the Products on request but no more frequently than semi-annually, and (iii) upon expiration or termination of the Order you will return the Products to a location designated by us, or if you fail to return the Products within thirty days you agree to purchase the Products.
8. INTELLECTUAL PROPERTY RIGHTS. We are a reseller of certain manufacturers’ products. The ownership of software associated with the Products shall remain with the manufacturer of such software, and you agree to fully comply with the manufacturer’s end user license for such software at all times. Each party reserves all rights, including, but not limited to, ownership, title, intellectual property rights and all other rights and interest in and to any intellectual property that it makes available to the other party as is necessary for the other party’s performance under this Agreement. In addition, we will own any intellectual property that we develop, create, or otherwise acquire, excluding your intellectual property, while performing the Services, unless otherwise mutually agreed to and expressly set forth in a SOW. For Services that are purchased, developed, or created under this Agreement, upon receipt of your payment for such Services we hereby grant you a perpetual, non-exclusive, non-transferable, fully-paid license to use and reproduce the Services as originally configured and deployed for the limited purpose of conducting your internal business. We reserve all other intellectual property rights not expressly granted herein.
9. CONFIDENTIAL INFORMATION. All proprietary data, confidential information and trade secrets of either party (“Confidential Information”) obtained by the other party in connection with this Agreement are and shall remain the property of the disclosing party. This Agreement is deemed to be Confidential Information. The parties agree not to disclose such Confidential Information to any third party without the prior written approval of the other party, except we may disclose your Confidential Information to our subcontractors under this Agreement but will ensure that they are subject to the same obligations of keeping your information confidential. However, neither party shall have any obligation to preserve the confidentiality of any Confidential Information which was known to the receiving party free of any obligation to keep it confidential; or (ii) is or becomes publicly available by other than the authorized disclosure by the receiving party; or (iii) is independently developed by or on behalf of the receiving party independent of any Confidential Information received from the other party; or (iv) is received by the receiving party from a third party whose disclosure does not violate any confidentiality obligation; or (v) is required by law to be disclosed by the receiving party, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order, if necessary, protecting the information from public disclosure. The parties further acknowledge that the unauthorized use or disclosure of such information will create a risk of irreparable harm to the disclosing party, entitling the disclosing party to seek injunctive relief against the receiving party to prevent such harm in addition to all other remedies at law, including monetary damages.
10. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR INCIDENTAL, SPECIAL, STATUTORY, INDIRECT OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR REVENUE, LOSS OR CORRUPTION OF DATA, TOLL FRAUD, COST OF COVER AND SUBSTITUTE PERFORMANCE. THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY FOR ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT WILL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNT OF ALL FEES PAID OR PAYABLE UNDER THE AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM. THE LIMITATION OF LIABILITY IN THIS SECTION WILL NOT APPLY IN CASES OF WILLFUL MISCONDUCT, OR PERSONAL INJURY OR TO CONTRACTUAL INDEMNIFICATION OBLIGATIONS PROVIDED IN THE AGREEMENT.
11. INFRINGEMENT DEFENSE AND INDEMNIFICATION. We will defend and indemnify you for damages, costs and attorney's fees you incur from any third party claim that our Services infringe on any U.S. patent, copyright, or trademark.. You will defend, indemnify and hold us harmless for damages, costs and attorney's fees we incur from any claim arising from your manner of using the Products and Services, your combination of the Products and Services with other products or services not provided by us, or your modification of the Products or Services. In addition, you will indemnify us for Damages incurred for any third party claim(s) arising out of or in connection with injuries suffered by our employees or agents at any facility owned or operated by you, except to the extent the injury is caused by the employee or agent. You will not be responsible to the extent that such Damages arise out of any negligent action or omission by our employees or agents. The indemnifying party shall conduct the defense and shall have control of the litigation; the other party shall give prompt notice of claims and shall cooperate in defending against the claim. Each party will indemnify, defend and hold the other party and its officers, directors, shareholders, employees and agents harmless from and against all damages of any kind, including costs, liabilities and expenses (including reasonable attorneys’ fees) (collectively, “Damages”), incurred for any third party claim(s) arising out of or in connection with, (i) any material misrepresentation or breach of any material representation, warranty or obligation by the indemnifying party under this Agreement, or (ii) any unlawful or negligent act by the indemnifying party.
12. ASSIGNMENT AND SUBCONTRACTING. This Agreement may not be assigned by either party without the prior written consent of the other and such consent shall not be unreasonably withheld; provided that either party may so assign without the consent of the other in the event that all or substantially all of its business and/or assets related to this Agreement are acquired by a third party. We may, from time to time, engage third parties as independent contractors to perform all or portions of the Services.
13. RECRUITMENT OF EMPLOYEES. Each party agrees that it shall not directly or indirectly solicit, hire or contract with any of the other party’s employees during the term of this Agreement and for a period of one year following expiration or termination of this Agreement.
14. FORCE MAJEURE. Neither party shall have any liability for delays, failure in performance, or damages due to: fire, explosion, power failures, pest damage, lightning or power surges, strikes, or labor disputes, water, acts of God, the elements, war, civil disturbances, acts of civil or military authorities or the public enemy, manufacturer caused equipment or part shortages, transportation facilities, fuel or energy shortages, unavailability of communications services or network facilities, or other causes beyond either party’s control whether or not similar to the foregoing.
15. SEVERABILITY AND AMENDMENT. If any portion of this Agreement is found to be invalid or unenforceable, the parties agree that the remaining portions shall remain in effect. This Agreement may be modified in writing solely by an amendment executed by authorized representatives of both parties.
16. ARBITRATION AND GOVERNING LAW. The construction, interpretation and performance of this Agreement shall be governed by the local laws of the State of New Jersey, without giving effect to choice of law doctrines. Except for collection matters which shall be referred to a professional collection agency for handling, all disputes arising under this Agreement shall be submitted to the American Arbitration Association (“AAA”), before a single, neutral arbitrator, for final and binding arbitration in accordance with the AAA’s Commercial Arbitration Rules. Either party may initiate arbitration by sending a demand for arbitration by certified mail to the AAA and to the other party. The demand must contain a description of the dispute, the amount involved and the remedy sought. Arbitration must be initiated within one year of the claimed breach.
17. NOTICES. Any notice required or permitted under this Agreement shall be delivered to the addresses of the parties set forth above. Such delivery shall be by courier or by first-class mail, postage pre-paid.