Updated at 2020-12-07
These Terms and Conditions (together with any and all Executed Orders, this “Agreement”) applies between DEVSWEEK, LLC. including all DEVSWEEK, LLC. subsidiaries and affiliates (“Company”) and the person, company or other entity entering into this Agreement or Executed Order (“Client”) by written statement of its authorized representative or by entering into an Executed Order hereunder. Company and Client may be collectively referred to herein as the “Parties” or each as a “Party.”
- DEFINITIONS. As used in this Agreement, the following terms shall have the meanings set forth below.
- “Affiliate” shall mean, with respect to a Party, any Entity during any time that it is Controlling, Controlled by, or under common control with, such Party.
- “Confidential Information” shall mean, with respect to either party, this Agreement, together with all confidential business or technical information or materials of such party; provided, however, that Confidential Information shall not include information or materials that the Receiving Party can demonstrate: (i) was known to the Receiving Party prior to the date hereof free of any obligation of nondisclosure; (ii) is or becomes, through no fault of the Receiving Party, generally known or available to the public; (iii) was lawfully received by the Receiving Party from a third party free of any obligation of nondisclosure; or (iv) is or was independently developed by the Receiving Party without use of or reference to any Confidential Information of the Disclosing Party.
- “Control” shall mean the direct or indirect ownership of 50% or more of the capital stock or other ownership interest of any Entity or the possession, directly or indirectly, of the power to direct the management and policies of such Entity by ownership of voting securities, by contract, or otherwise. “Controlling” shall mean having Control of any Entity and “Controlled” shall mean being the subject of Control by another Entity.
- “Deliverables” shall mean the Equipment and Services to be provided under this Agreement.
- “Entity” means any person, corporation, partnership, sole proprietorship, limited liability company, joint venture, or other form of organization, and includes the Parties hereto.
- “Equipment” shall mean the software and hardware to be provided by Company as reseller or otherwise under this Agreement. Company may offer additional Equipment or discontinue Equipment offered at any time without notice.
- “Executed Order” means a written order, including by executed quote, purchase order, statement of work, work order, email or by other written agreement executed or agreed by the Parties, for Hardware and/or Software and/or Services that references this Agreement.
- “Hardware” shall mean the hardware to be provided, by Company as reseller or otherwise, under this Agreement.
- “Services” shall mean the information technology integration and consulting services, functions, and responsibilities to be performed under this Agreement.
- “Software” shall mean the software to be provided, by Company as reseller or otherwise, under this Agreement.
- “Third Party” shall mean any Entity other than the Parties or any Affiliates of the Parties, and, for the avoidance of doubt, includes subcontractors of the Parties and non-Party original equipment manufacturers (“OEMs”) providing and/or manufacturing Deliverables.
- PROVISION OF HARDWARE, SOFTWARE AND SERVICES.
- Executed Orders. This Agreement applies to each Executed Order for Deliverables agreed by Company and Client. Any additional or different terms or conditions in any form delivered by Client are hereby deemed to be material alterations and notice of objection to them and rejection of them is hereby given.
- Specifications and Requirements. Company shall perform the Services and, as a value-added reseller, shall resell and pass through the applicable Equipment, in accordance with the terms and conditions set forth herein and in the applicable Executed Orders. Company shall have the authority to determine the manner in which any such Deliverables are to be provided, except to the extent otherwise set forth in an applicable Executed Order.
- Non-Exclusive Relationship. The Parties’ relationship is non-exclusive. Client may obtain similar hardware, software or services as provided hereunder from any Third Party, and Company may provide any hardware, software or services to any Third Party without any restriction hereunder.
- Performance by Company’s Affiliates and Subcontractors. Except as specifically set forth in an Executed Order, performance of the Company’s obligations hereunder may be made by Affiliates of Company and Company may from time to time subcontract certain of the Deliverables to Third Parties and such performance shall be deemed performance by Company itself.
- TERM. Unless terminated by a Party, this Agreement shall remain in effect and the terms hereof shall apply to every Executed Order. Executed Orders agreed prior to termination of this Agreement shall continue to be governed by the terms hereof, notwithstanding such termination.
- CHANGE ORDER.
- Change Orders. Either Party may request changes to the Deliverables by submitting to the other Party a completed Change Order; provided, however, that no Change Order will be binding on the Parties unless mutually agreed in writing.
- Pending Change Orders. Except to the extent specifically changed by a Change Order, the scope of Deliverables, as provided herein and in the then-current Executed Order, shall remain in full force and effect.
- Charges. Client shall pay for the Deliverables invoiced under this Agreement in accordance with each applicable Executed Order.
- Invoicing. Company shall invoice all charges in accordance with the applicable Executed Order. Each Executed Order may establish credit, pre-payment or other terms as reasonably determined by the Parties.
- Taxes. Client shall pay all sales, use, excise, and other similar taxes assessed relating to any Executed Order. Client shall not be responsible for paying any taxes upon the real, personal, or intangible property of Company or its employees or upon the net income or profits of Company.
- Due Date. Client shall pay Company invoices within thirty (30) days of receipt thereof; provided, however, that Company may require that payment be made prior to delivery of applicable Products or may establish credit terms or other requirements, all as set forth in an Executed Order.
- Late Payments. Client’s payments hereunder shall be deemed late when Client fails to remit payment within thirty (30) days of receipt of an applicable invoice, except as to amounts that are being disputed in good faith by written notice. Invoiced amounts not disputed in writing within ten (10) days of Client’s receipt thereof shall be deemed undisputed. Late payments shall bear interest at the rate of one- and one-half percent (1½ %) per month or the maximum rate allowed under law, whichever is lower, or fraction thereof, from the due date until paid in full. If a disputed amount is resolved in favor of Company, such amount shall bear interest from the due date until paid. Notwithstanding any other provision under this Agreement, Company may at its sole discretion, suspend without penalty to Company, or terminate for default of Client, any Deliverables due to nonpayment for sixty (60) days or more of any undisputed portion of any invoice; provided, however, that such suspension or termination shall not relieve Client from its obligation to pay such undisputed amounts or otherwise perform its obligations under any Executed Order. Company reserves the right to assert appropriate liens to ensure payment. Client agrees to reimburse Company its reasonable expenses, including attorney and other fees, incurred in collecting any amounts due to Company.
- Expenses. Except to the extent otherwise set forth in this Agreement or in an applicable Executed Order, each Party shall bear its own internal expenses related to the performance of this Agreement.
- Delivery, Title and Risk of Loss. Except as otherwise set forth in an Executed Order or as mutually agreed between the Parties in writing, Company shall deliver any Equipment FOB Destination at the ship-to address provided on the Executed Order. Title and risk of loss of Equipment shall pass to Client upon delivery, except as otherwise set forth in the applicable OEM terms or end user agreements.
- For Cause. In the event either Party fails to perform any of its material obligations under an Executed Order, such Party shall be deemed in default and, if such Party fails to substantially cure its default within thirty (30) days after receiving written notice from the non-defaulting Party specifying the nature of the default, then the non-defaulting Party may, by giving written notice to the other Party, terminate the applicable Executed Order as of the date specified in such notice of termination. If Client is the defaulting Party, Company may, upon written notice to Client, terminate this Agreement and all outstanding Executed Orders as of the date specified in such notice of termination. Notwithstanding the foregoing, Client shall pay Company for all Deliverables already performed prior to the date of termination and all costs incurred on behalf of Client in performance thereof, including without limitation all such amounts paid or incurred by Company owing to any Third Party for Equipment and Services.
- For Insolvency. Subject to applicable law, if either Party becomes or is declared insolvent or bankrupt, is subject to any proceedings relating to its liquidation, insolvency, or for the appointment of a receiver or similar officer for it, makes an assignment for the benefit of all or substantially all of its creditors, or enters into an agreement for the composition, renewal, or readjustment of all or substantially all of its obligations, then the other Party, by giving written notice to such Party, may terminate this Agreement and all outstanding Executed Orders as of the date specified in such notice of termination.
- LIMITATION OF LIABILITY AND NATURE OF AVAILABLE DAMAGES.
- LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, AGENTS OR EMPLOYEES, BE LIABLE TO THE OTHER PARTY UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR EXEMPLARY, PUNITIVE, INDIRECT, SPECIAL, LOST PROFITS, CONSEQUENTIAL OR SIMILAR DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT WITH RESPECT TO AMOUNTS CLIENT IS OBLIGATED TO PAY UNDER AN EXECUTED ORDER OR AS ARISING OUT OF AN INTENTIONAL WRONGFUL ACT OF THE PARTY, IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, AGENTS OR EMPLOYEES, BE LIABLE TO THE OTHER PARTY FOR ANY REASON, WHETHER IN CONTRACT OR IN TORT, FOR ANY DAMAGES ARISING OUT OF OR BASED UPON THIS AGREEMENT IN AN AMOUNT EXCEEDING THE FEES PAID DURING THE PRECEDING TWELVE MONTHS BY CLIENT TO COMPANY UNDER THE EXECUTED ORDER PURSUANT TO WHICH SUCH CLAIM AROSE.
- NATURE OF AVAILABLE DAMAGES. EXCEPT AS SPECIFICALLY SET FORTH IN THE APPLICABLE EXECUTED ORDER, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES TO CLIENT OR ANY END USER CONCERNING THE EQUIPMENT, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY. IN NO EVENT SHALL COMPANY BE LIABLE TO CLIENT OR ANY END USER FOR ANY DAMAGES OR LIABILITY OF ANY KIND RELATING TO THE EQUIPMENT, WHETHER IN TORT, CONTRACT OR OTHERWISE AND WHETHER FOR DIRECT, INDIRECT, CONSEQUENTIAL OR OTHER DAMAGES, AND ALL SUCH DAMAGES ARE DISCLAIMED. CLIENT’S SOLE RECOURSE FOR REMEDIES FOR CLAIMS (IF ANY) ARISING FROM USE OR POSSESSION OF EQUIPMENT, INCLUDING WITHOUT LIMITATION CLAIMS RELATED TO INFRINGEMENT, DATA LOSS, DAMAGE TO SYSTEMS AND OTHERWISE, IS TO THE OEM OF SUCH EQUIPMENT (PURSUANT TO THE TERMS AND LIMITATIONS OF THE APPLICABLE END USER AGREEMENT OR THE LIKE) AND NOT COMPANY.
- Indemnity by Company. Company shall defend, at its own expense, and indemnify and hold Client and its Affiliates, directors, officers, employees, and agents harmless from and against any claim by a Third Party in connection with the performance of this Agreement or any Executed Order to the extent based on: (i) work-related injury or death caused by the Company’s negligence; or (ii) tangible personal or real property damage caused by the Company’s or its Affiliates’ negligence.
- Indemnity by Client. Client shall defend, at its own expense, and indemnify and hold Company and its Affiliates, directors, officers, employees, and agents harmless from and against any claim by a Third Party in connection with the performance of this Agreement or any Executed Order to the extent based on: (i) work-related injury or death caused by the Client’s negligence; (ii) tangible personal or real property damage caused by the Client’s or its Affiliates’ negligence or (iii) breach of any end user agreement or other terms, including payment terms, applicable to Equipment. Client shall be responsible for any costs and expenses incurred by Company in connection with the enforcement of this Section, including without limitation reasonable attorneys’ fees.
- Indemnity Procedures. The indemnification obligations set forth herein are subject to the following conditions:
- The Party seeking indemnity (“Indemnitee”) shall promptly notify the other Party (“Indemnitor”) in writing of the claim of which it has notice, provided that the failure or delay to so notify the Indemnitor shall not relieve the Indemnitor from any liability that it may have to Indemnitee hereunder so long as the failure or delay shall not have prejudiced the defense of such claim and then only to the extent that the Indemnitor actually is prejudiced;
- Indemnitee allows the Indemnitor to have sole control of the defense of the claim and any settlement negotiations arising out of that claim provided, however, the Indemnitor may not, without Indemnitee’s prior written consent, settle or compromise any claim in a manner that: (A) does not unconditionally release Indemnitee and its directors, officers, employees or agents from all liability and obligation; (B) requires Indemnitee or any of its directors, officers, employees or agents to contribute to any settlement of the claim; (C) requires Indemnitee or any of its directors, officers, employees or agents to take or omit any action; or (D) makes any public statement naming Indemnitee or from which the identity of Indemnitee could reasonably be ascertained; and
- Indemnitee shall, at the Indemnitor’s reasonable request and expense, cooperate with the Indemnitor. Without limiting Indemnitor’s right to control defense and settlement, Indemnitee may, at its own expense, retain counsel of its own choice to participate in such defense and settlement.
- DISPUTE RESOLUTION.
- Equitable Relief. Either Party may seek equitable remedies, including specific performance and injunctive relief, for a breach of the other Party’s obligations under this Agreement. The Parties further agree that violation by one Party of its obligations relating to the treatment of Confidential Information hereunder would cause irreparable harm to the other Party not adequately compensable by monetary damages. Thus, in addition to other relief, the Parties agree that temporary and permanent injunctive relief, without posting of a bond, is an appropriate remedy to prevent any actual or threatened violation of such provisions or to enforce such provisions according to their terms.
- Party Representatives. Except for certain emergency judicial relief authorized in accordance with applicable law, which may be brought at any time, the Parties agree that upon receipt of a written notice from either Party of the existence of a dispute between them, the Parties shall submit the dispute for informal resolution to their designated senior management who are not legal personnel.
- Binding Arbitration. Any dispute that senior management are not able to resolve within ten (10) days of their first meeting, or within such extended period as they agree upon, shall be resolved by arbitration in San Diego, California before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude the Parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
- Choice of Law Venue and Jurisdiction. The validity, construction, and interpretation of this Agreement and the rights, duties, and obligations of the Parties hereto shall be governed by the laws of California. Except as specifically set forth herein, the Parties hereby irrevocably consent to venue and the personal jurisdiction of the state and federal courts located in San Diego, California for the resolution of any disputes arising hereunder.
- DISCLAIMER OF WARRANTIES. COMPANY RESELLS AND PASSES THROUGH THE EQUIPMENT ON AN “AS IS, WHEN AVAILABLE” BASIS. EACH OF THE PRODUCTS MAY BE SUBJECT TO APPLICABLE WARRANTY, END-USER LICENSE, INTELLECTUAL PROPERTY INDEMNITY OR OTHER TERMS AVAILABLE FROM THE OEM OF THE EQUIPMENT. COMPANY WILL PASS ALL APPLICABLE WARRANTIES, LICENSES, INDEMNITIES AND SUCH OTHER TERMS AS MAY APPLY FROM THE OEM THROUGH TO CLIENT. COMPANY AND CLIENT HEREBY EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESSED, OR IMPLIED INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. IN ADDITION, COMPANY DOES NOT REPRESENT OR WARRANT THAT ANY DELIVERABLES, INCLUDING HARDWARE, SOFTWARE OR THIRD-PARTY SERVICES, WILL BE FREE FROM ERRORS, DEFECTS OR INFRINGEMENT.
- Nondisclosure of Confidential Information. All Confidential Information supplied by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) shall remain solely and exclusively the property of the Disclosing Party. Except as expressly authorized herein, as may reasonably be required to perform this Agreement or any Executed Order or by prior written consent of the Disclosing Party, which consent may be withheld in the Disclosing Party’s sole discretion, the Receiving Party shall not use or disclose to any Third Party any of the Disclosing Party’s Confidential Information. The Receiving Party shall only disclose the Disclosing Party’s Confidential Information to those of its Affiliates, employees and their and its respective contractors who have a need to know it for the purposes of this Agreement and who have agreed to terms substantially similar to this Section regarding such Confidential Information. Notwithstanding the foregoing, the Parties agree that Company may disclose Confidential Information to applicable OEMs to the extent necessary to perform its obligations under this Agreement. Each Party shall be responsible for any unauthorized use or disclosure of any of the other Party’s Confidential Information received by it and its Affiliates and their respective employees, agents, representatives and consultants.
- Required Disclosures. Notwithstanding the foregoing, the Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent that the Receiving Party is required by any applicable governmental authority to do so; provided that in such event, to the extent permitted by applicable law, the Receiving Party shall notify the Disclosing Party and shall cooperate with the Disclosing Party in any attempt to contest or limit such required disclosure, at the Disclosing Party’s sole expense.
- Data and Confidential Information. As between the Parties, but subject to any terms and conditions applicable to Equipment set forth in the applicable Executed Order, each Party shall remain the sole and exclusive owner of its own data and other Confidential Information.
- Company Knowhow. Except for the Equipment sold or resold to Client pursuant to an applicable Executed Order, Client acknowledges that it has no rights in any software, hardware, systems, documentation, guidelines, procedures, methodologies, and similar related materials or processes, or any modifications thereof, provided by Company.
- Degree of Care. Each Party shall use at least the same degree of care in safeguarding the other Party’s Confidential Information as it uses in safeguarding its own Confidential Information, but in no event less than reasonable due diligence and reasonable care shall be exercised.
- Entire Agreement. This Agreement, together with the Executed Orders entered into hereunder, constitutes the entire agreement between the Parties with respect to the subject matter hereof. This Agreement supersedes all prior negotiations, agreements, and undertakings, whether written or oral, between the Parties with respect to such matter. This Agreement may be amended only by an instrument in writing referencing this Agreement and executed by the Parties or their permitted assignees.
- Order of Precedence. In the event of a conflict between the terms of this Agreement, any Executed Order and any amendment, the terms shall be controlling in this order: (i) amendment(s) in reverse chronological order, but solely with respect to the subject matter of such amendments, (ii) this Agreement and (iii) each Executed Order, provided, however, that an Executed Order shall control a conflict with the terms of this Agreement, if the Parties explicitly reference this Section of this Agreement in such Executed Order.
- Assignment; Third Parties. Except as otherwise set forth by the applicable OEM terms or end user agreements pertaining to Equipment only, neither Party may assign this Agreement or any rights, obligations, or benefits under this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld. Any assignment in contravention of this Section shall be void. This Agreement shall bind, benefit and be enforceable by and against the Parties and their respective successors and assigns. Except as specifically set forth herein or in any Executed Order, no third party shall be considered a beneficiary of, or entitled to any rights under, this Agreement or any Executed Order.
- Independent Contractors; No Solicitation. The Parties are independent contractors. Nothing contained in this Agreement shall be construed to make either Client or Company joint venturers, principals, partners, agents, or employees of the other. Neither Party shall have any right, power or authority, express or implied, to bind the other. No officer, director, employee, agent, affiliate, or contractor retained by Company to perform work on Client’s behalf under this Agreement shall be deemed to be an employee, agent, or contractor of Client. During the term of this Agreement and for a period of one (1) year after the expiration or termination of this Agreement for any reason, Client agrees that it shall not induce or attempt to induce any person employed by Company during the term of this Agreement to leave the employ of Company and shall not hire any such person in any business or capacity.
- Notices. Except as otherwise specified in the Agreement or agreed by the Parties, all notices, requests, consents, and other communications required under this Agreement shall be in writing and shall be personally delivered or sent by (i) first class U.S. mail, registered or certified, return receipt requested, postage pre-paid; (ii) electronic mail; or (iii) U.S. express mail, or other overnight courier service. Notices shall be deemed given on the day received or confirmed delivered, whichever is earlier. Notices to Company and Client shall be given at the address specified on the Executed Order, or if not specified, to the most recent address available to the Party providing notice.
- Section Headings. Section headings in this Agreement are for reference purposes only and shall not affect the interpretation or meaning of this Agreement nor be construed as part of this Agreement.
- Counterparts; Electronic Signatures and Electronic Transmission. This Agreement and any Executed Order may be executed and transmitted electronically, including by electronic signature or email confirmation, simultaneously in any number of counterparts, each of which shall be deemed an original document, but all such counterparts together shall constitute one binding agreement.
- Waiver. No delay or omission by either Party to exercise any right or power it has under this Agreement shall impair or be construed as a waiver of such right or power unless made in writing and any such written waiver shall not be construed to be a waiver of any succeeding right or power.
- Severability. If any provision of this Agreement is held for any reason by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall remain in full force and effect and the provision found to be contrary to law shall be deemed modified to the most limited extent required in order to cause such provision to be in accordance with applicable law while most fully carrying out the intent of the applicable provision as set forth herein.
- Survival. Any provision of this Agreement shall survive the termination of this Agreement to the extent required to enforce the obligations of the Parties under any Executed Order.
- Construction. Company and Client agree that the terms and conditions of this Agreement shall not be construed in favor of or against either Party because each Party had the opportunity to review and negotiate the terms hereof. For the avoidance of doubt, Client agrees that the terms set forth in this Agreement constitute reasonable terms applicable to each Executed Order.
- Insurance. Each Party shall maintain a (i) commercial general liability insurance policy with limits of not less than $1,000,000 each occurrence, $2,000,000 general aggregate covering injuries or damage to any person or property which results from their operations or activities under this Agreement; (ii) technology errors and omissions liability insurance policy with a limit of not less than $2,000,000 and (iii) cyber liability with a limit not less than $2,000,000. Cyber liability may be covered under the technology errors and omissions policy.