PLEASE READ THESE TERMS AND CONDITIONS VERY CAREFULLY.
THE TERMS AND CONDITIONS OF PRODUCT SALES AND SERVICE PROJECTS, (COLLECTIVELY, “CONTRACTS”) ARE LIMITED TO THOSE CONTAINED HEREIN. ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS IN ANY FORM DELIVERED BY YOU (“BUYER”) ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONS AND NOTICE OF OBJECTION TO THEM AND REJECTION OF THEM IS HEREBY GIVEN UNLESS OTHERWISE STATED IN WRITING AND APPROVED BY AN OFFICER OR PARTNER OF JCMR TECHNOLOGY.
BY ACCEPTING DELIVERY OF THE PRODUCTS OR BY ENGAGING JCMR TECHNOLOGY (“SELLER”) TO PROVIDE PRODUCTS OR PERFORM OR PROCURE ANY SERVICES, BUYER AGREES TO BE BOUND BY AND ACCEPTS THESE TERMS AND CONDITIONS UNLESS BUYER AND SELLER HAVE SIGNED A SEPARATE AGREEMENT, IN WHICH CASE THE SEPARATE AGREEMENT WILL GOVERN.
ANY GENERAL DESCRIPTION OF THE TYPES OF PRODUCTS OR SERVICES AND RESULTS THEREOF POSTED ON ANY SELLER WEBSITE OR MOBILE APPLICATION DO NOT CONSTITUTE PART OF THE AGREEMENT BETWEEN SELLER AND BUYER.
IMPORTANT INFORMATION ABOUT TERMS AND CONDITIONS
These Terms and Conditions constitute a binding contract between Buyer and Seller and are referred to herein as either “Terms and Conditions” or this “Agreement”. Buyer accepts these Terms and Conditions by making a purchase from or placing an order with Seller or otherwise requesting products or equipment (the “Products”) or engaging Seller to perform or procure any Services (as this and all capitalized terms are defined herein). These Terms and Conditions are subject to change without prior notice, except that the Terms and Conditions posted on a Site at the time Buyer places an order or signs a Contract will govern the order in question, unless otherwise agreed in writing by Seller and Buyer.
Buyer must issue a Purchase Order for any and all Products and Services. Original, faxed, and electronic signatures on Seller Quotation, Proposal, Master Services Agreement, Statement of Work, Scope Change Order, or other Approved Document are acceptable alternatives to a Purchase Order. Additional or different terms and conditions contained in any such purchase order will be null and void unless approved by a Seller Officer or Partner. No course of prior dealings between the parties and no usage of trade will be relevant to determine the meaning of these Terms and Conditions or any Purchase Order or Invoice, or any document in electronic or written form that is signed and delivered by each of the parties for the performance of Services (each, a “Contract”). This Agreement contains the entire understanding of the parties with respect to the matters contained herein and supersedes and replaces in its entirety any and all prior communications and contemporaneous agreements and understandings, whether oral, written, electronic or implied, if any, between the parties with respect to the subject matter hereof.
THESE TERMS AND CONDITIONS, ANY CONTRACTS, THE SERVICES HEREUNDER AND ANY SALE OF PRODUCTS HEREUNDER WILL BE GOVERNED BY THE LAWS OF THE STATE OF NORTH CAROLINA, WITHOUT REGARD TO CONFLICTS OF LAWS RULES. ANY ARBITRATION, ENFORCEMENT OF AN ARBITRATION OR LITIGATION WILL BE BROUGHT EXCLUSIVELY IN MECKLENBURG COUNTY, NORTH CAROLINA, AND BUYER CONSENTS TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED THEREIN, SUBMITS TO THE JURISDICTION THEREOF AND WAIVES THE RIGHT TO CHANGE VENUE. BUYER FURTHER CONSENTS TO THE EXERCISE OF PERSONAL JURISDICTION BY ANY SUCH COURT WITH RESPECT TO ANY SUCH PROCEEDING. Except in the case of nonpayment, neither party may institute any action in any form arising out of these Terms and Conditions more than one (1) year after the cause of action has arisen. The rights and remedies provided Seller under these Terms and Conditions are cumulative, are in addition to, and do not limit or prejudice any other right or remedy available at law or in equity.
TERMS AND CONDITIONS
Term Of Proposals/Quotations
Proposals and Quotations are valid for a period of thirty (30) days from the Document Date unless otherwise noted.
Billing And Invoices
Invoices are delivered electronically to the designated Buyer points of contact. Unless otherwise stated in an executed Contract, Invoices for Products and Services are billed as follows:
- Time & Material Contracts will be billed weekly in arrears.
- Recurring and Ongoing Support Contracts will be billed on the first business day of the current support month.
- Block Hours Contracts will be billed on contract execution and will be pre-paid.
- Fixed Price Contracts will be billed based on the Milestones listed in the executed Contract.
- Expenses including but not limited to resource travel time, mileage, lodging, postage, printing, or other expenses directly related to the delivery of contracted services will be billed weekly in arrears.
- Products and Equipment will be billed on Contract execution. A deposit of up to 50% of the Quotation Total may be required before products and equipment are released. Products and Equipment delivered to North Carolina and South Carolina are subject to applicable sales tax.
Unless otherwise stated, Buyer will pay the full amount of each invoice within fifteen (15) days of receipt. Buyer will pay interest on any past due amounts at a rate equal to the lesser of 1.5% per month (or part thereof) or the maximum rate permitted by law. Buyer shall pay all costs (including reasonable attorney’s fees) incurred by Seller in enforcing the obligations of Buyer hereunder. Credit Card Payments are accepted and are subject to a five percent (5%) processing fee. In the case of delinquent accounts, Seller reserves the right to pause any and all work in progress until the account is current.
Title; Risk Of Loss
If Buyer provides Seller with Buyer’s carrier account number or selects a carrier other than a carrier that regularly ships for Seller or its Affiliates, title to Products and risk of loss or damage during shipment pass from Seller to Buyer upon delivery to the carrier (F.O.B. Origin, freight collect). For all other shipments, title to Products and risk of loss or damage during shipment pass from Seller to Buyer upon delivery to the specified destination (F.O.B. Destination, freight prepaid and added). Notwithstanding the foregoing, title to software will remain with the applicable licensor(s), and Buyer’s rights therein are contained in the license agreement between such licensor(s) and Buyer.
Cooperation; Third Party Products
In addition to any specific Buyer duties set forth in any applicable Contract, Buyer agrees to cooperate with Seller in connection with performance of the Services by providing:
- timely responses to Seller’s inquiries and requests for approvals and authorizations,
- access to any information or materials reasonably requested by Seller which are necessary or useful as determined by Seller in connection with providing the Services, including, but not limited to, physical and computer access to Buyer’s computer systems, and
- all Required Consents necessary for Seller to provide the Services. “Required Consents” means consents or approvals required to give Seller, its Affiliates, and its and their subcontractors the right or license to access, use and modify all data and third party products. Buyer acknowledges and agrees that the Services are dependent upon the completeness and accuracy of information provided by Buyer and the knowledge and cooperation of the agents, employees or subcontractors (“Personnel”) engaged or appointed by Buyer who are selected by Buyer to work with Seller.
Buyer will follow all reasonable Buyer security rules and procedures, as communicated in writing by Buyer to Seller from time to time.
Seller shall not be responsible in the event that equipment, software or other components (“Third Party Products”) incorporated into any system or architecture designed or engineered by Seller hereunder fails to perform in accordance with the specifications or performance criteria set forth in the applicable product documentation or specifications.
Buyer understands that Seller is not the manufacturer of the Products purchased by Buyer hereunder and the only warranties offered are those of the manufacturer, not Seller or its Affiliates. In purchasing the Products, Buyer is relying on the manufacturer’s specifications only and is not relying on any statements, specifications, photographs or other illustrations representing the Products that may be provided by Seller or its Affiliates. SELLER AND ITS AFFILIATES HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES EITHER EXPRESS OR IMPLIED, RELATED TO PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF TITLE, ACCURACY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF NON-INFRINGEMENT, OR ANY WARRANTY RELATING TO THIRD PARTY SERVICES. THE DISCLAIMER CONTAINED IN THIS PARAGRAPH DOES NOT AFFECT THE TERMS OF ANY MANUFACTURER’S WARRANTY. Buyer expressly waives any claim that it may have against Seller or its Affiliates based on any product liability or infringement or alleged infringement of any patent, copyright, trade secret or other intellectual property rights (each a “Claim”) with respect to any Product and also waives any right to indemnification from Seller or its Affiliates against any such Claim made against Buyer by a third party. Buyer acknowledges that no employee of Seller or its Affiliates is authorized to make any representation or warranty on behalf of Seller or any of its Affiliates that is not in this Agreement.
Buyer further acknowledges and agrees that Seller makes no representations, warranties or assurances that the Products are designed for or suitable for use in any high-risk environment, including but not limited to aircraft or automobile safety devices or navigation, life support systems or medical devices, nuclear facilities, or weapon systems, and Buyer agrees to indemnify Seller in connection with any such use of the Products. Buyer further agrees to review and comply with the manufacture’s disclaimers and restrictions regarding the use of the Products in high-risk environments.
Seller will not be responsible for and no liability shall result to Seller or any of its Affiliates for any delays in delivery or in performance which result from any circumstances beyond Seller’s reasonable control, including, but not limited to, Product unavailability, carrier delays, delays due to fire, severe weather conditions, failure of power, labor problems, acts of war, terrorism, embargo, acts of God or acts or laws of any government or agency. Any shipping dates or completion dates provided by Seller or any purported deadlines contained in a Contract or any other documents are estimates only.
In the event that Buyer asserts any claim for warranty services hereunder and such claim relates to any matter that is determined not to be Seller’s responsibility hereunder (including any problem with Buyer’s computer hardware or software that was not caused by services performed by Seller), Buyer will be responsible to pay Seller for all evaluation, correction or other services performed by Seller relating to such claim on a time and materials basis at Seller’s then standard billing rates.
Limitations On Liability
UNDER NO CIRCUMSTANCES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SET FORTH HEREIN, WILL SELLER, ITS AFFILIATES OR ITS OR THEIR SUPPLIERS, SUBCONTRACTORS OR AGENTS BE LIABLE FOR: (A) ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, BUSINESS, REVENUES OR SAVINGS, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES OR IF SUCH DAMAGES ARE OTHERWISE FORESEEABLE, IN EACH CASE, WHETHER A CLAIM FOR ANY SUCH LIABILITY IS PREMISED UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY OF LIABILITY; (B) ANY CLAIMS, DEMANDS OR ACTIONS AGAINST BUYER BY ANY THIRD PARTY; (C) ANY LOSS OR CLAIM ARISING OUT OF OR IN CONNECTION WITH BUYER’S IMPLEMENTATION OF ANY CONCLUSIONS OR RECOMMENDATIONS BY SELLER OR ITS AFFILIATES BASED ON, RESULTING FROM, ARISING OUT OF OR OTHERWISE RELATED TO THE PRODUCTS OR SERVICES; OR (D) ANY UNAVAILABILITY OF THE PRODUCT FOR USE OR ANY LOST, DAMAGED OR CORRUPTED DATA OR SOFTWARE. IN THE EVENT OF ANY LIABILITY INCURRED BY SELLER OR ANY OF ITS AFFILIATES, THE ENTIRE LIABILITY OF SELLER AND ITS AFFILIATES FOR DAMAGES FROM ANY CAUSE WHATSOEVER WILL NOT EXCEED THE LESSER OF:
- THE DOLLAR AMOUNT PAID BY BUYER FOR THE PRODUCT(S) GIVING RISE TO THE CLAIM OR THE SPECIFIC SERVICES GIVING RISE TO THE CLAIM; OR
In no event shall either party be liable to the other or any other person or entity for any loss of records or data or for special, exemplary, indirect, consequential or punitive damages of any kind or nature whatsoever, whether or not the possibility of such damages has been disclosed to such parties in advance or could have been reasonably foreseen by Seller and whether in an action based on contract, warranty, strict liability, tort or otherwise.
Each party shall indemnify, defend and hold the other, its parent, subsidiaries, affiliates, directors and officers harmless for any losses, damages, claims, demands, suits, liabilities and causes of action (including court costs and reasonable attorney fees) that are caused by:
- the dishonest, fraudulent or criminal acts or omissions of the indemnifying party, or
- the violation by the indemnifying party of any legal requirements.
The foregoing obligations will not apply to the extent the indemnified party was responsible for giving rise to the matter upon which the claim for indemnification is based. The indemnified party shall have the right to participate in any defense of a third party claim against the indemnified party with counsel of indemnified party’s choice at its own expense. The foregoing indemnity is conditioned upon prompt written notice by the indemnified party to the indemnifying party of any claim, action, or demand for which indemnity is claimed, such cooperation by the indemnified party in the defense as the indemnifying party may reasonably request (at the indemnifying party’s expense), and the indemnifying party being granted the sole authority to handle the defense and (with the indemnifying party’s prior reasonable approval) any related settlement.
Each party shall treat as confidential and shall not disclose or transmit to any third party:
- any documentation or other materials of the other party that are marked as “Confidential” by the other party,
- information of the other party that is disclosed orally and is identified as confidential at the time of disclosure, or
- documentation, materials or oral information of the other party of a confidential or proprietary nature which, in the exercise of reasonable judgment, would be considered as confidential (collectively, “Confidential Information”).
Confidential Information shall not include any information that:
- is already in the receiving party’s possession or control prior to the date of disclosure without restriction as to confidentiality,
- at the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no breach of agreement or other wrongful act by the receiving party,
- has been received from a third party without restriction on disclosure and without breach of agreement or other wrongful act by the receiving party,
- is independently developed by the receiving party without reference to the Confidential Information of the disclosing party, or
- is required to be disclosed by law or order of a court of competent jurisdiction or regulatory authority, provided that the receiving party shall furnish prompt written notice of such required disclosure and reasonably cooperate with the disclosing party, at the disclosing party’s cost and expense, in any effort made by the disclosing party to seek a protective order or other appropriate protection of its Confidential Information and any disclosure under this clause is limited to the extent of the legal requirement.
During the term hereof and for twelve (12) months thereafter, Buyer will not, directly or indirectly, solicit for employment or employ, whether as an employee or independent contractor, any employee, officer or independent contractor of Seller.
Time; Force Majeure
Contracts sets forth the projected work effort and schedule applicable to the products to be delivered and services to be performed by Seller. All statements and agreements concerning time are good faith estimates based upon current information available and existing circumstances, and are subject to equitable adjustment upon any material change in such information or circumstances, the occurrence of an excusable delay (as provided below) or upon modification of the scope, timing or level of work to be performed by Seller. Neither party shall be under any liability for any loss or for any failure to perform any obligation hereunder (other than payment obligations) due to causes beyond its reasonable control including, without limitation, industrial or labor disputes of whatever nature, fire, power loss, telecommunications failure, acts of God, hostilities, emergencies, the unavailability of Third Party Products or other force majeure; provided however, that such party has used commercially reasonable efforts to avoid or minimize such cause.
Contracts may be executed in multiple counterparts, all of which together shall constitute one instrument. Facsimile and electronic signatures on such counterparts shall be accepted by the parties as originals.
Either party may request changes or modifications to Contracts at any time. It is expected that revisions to Contracts will only be requested when warranted by a significant change in the environment (actual or expected), and controlled and managed by either party. Contracts may not be amended or modified except by an instrument in writing signed by the parties and may result in additional costs and delays in scheduling and delivery. All Contract revisions, changes, and amendments will become part of Contract. Any term or provision of a Contract which is invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of the Contract or affecting the validity or enforceability of any of the terms or provisions hereof in any other jurisdiction.
The provisions of the Terms and Conditions hereof shall survive the expiration or termination of this Scope of Work.