General Terms and Conditions
Last updated: February 6, 2020
The following General Terms and Conditions are applicable to sales to You as “Client” by PacketWatch.
- AGREEMENT. These General Terms and Conditions (this “Agreement”) are entered into between you as (“Client”) and WGM Associates LLC, an Arizona limited liability company doing business as PacketWatch (“PacketWatch”). For purposes herein, Client and PacketWatch may be referred individually to as a “Party” and collectively as the “Parties”. This Agreement sets forth the legal rights and obligations between the Parties governing orders for the purchase and installation of telecommunications, audio visual, networking devices and computer equipment (collectively “Equipment”) and/or related licensed software (“Software”), and any related services (the “Services”), at a single location or multiple locations as identified herein (the “Premises”). Subject to the terms and conditions herein, the Client will be provided Equipment and Services by PacketWatch and/or its affiliates or subcontractors.
- ORDERS. During the Term (as defined below), Client may deliver to PacketWatch orders for Equipment and/or Services (each, an “Order”). Client will deliver any Order on a form of Purchase Order or Work Order provided by PacketWatch and executed by Client. PacketWatch may attach a Scope of Work, Project Plan and/or Maintenance Plan to any Order. Upon acceptance and execution by PacketWatch, any Order shall be deemed to be incorporated into this Agreement.
- TERM. The term of this Agreement shall commence on the sale (the “Effective Date”), and will continue for a period of one year, (the “Term”), and the Term shall automatically be extended as necessary to account for any Order placed by Client during the Term and subsequently accepted and executed by PacketWatch. If neither Client nor PacketWatch provides the other written notice of cancellation at least thirty (30) days prior to the end of the Term, including as it may have been extended as provided above, the Term will automatically renew for a single, additional period of one (1) year.
- PRICE AND PAYMENT TERMS. (A) Equipment. The Equipment price, including without limitation the prices for associated software, installation, configuration, applicable taxes, fees and shipping (collectively the “Equipment Price”), and the associated payment terms will be set forth on each Order. At the Client’s request, PacketWatch may set forth the prices for the Services associated with installation and configuration of the Equipment on a separate Order. (B) Services including Managed Services and Maintenance. The prices for any Services (the “Service Fees”), excluding applicable taxes, will be set forth on each Order and such Service Fees are due annually in advance, unless otherwise agreed to in writing by the Parties. (C) Sales and Use Taxes. Client is responsible for all applicable taxes, shipping, handling and other charges applicable to the Equipment, Software and/or Services provided under this Agreement. Client agrees either to pay to PacketWatch the amount of all applicable taxes or to provide to PacketWatch evidence of exemption no later than the date of any Order. (D) Due Date. All charges other than the Equipment Price are due on receipt of invoice. Any amounts owing by Client to PacketWatch under this Agreement or any Order and not paid within thirty (30) days after their respective due date shall bear interest at the lesser of a rate of 1.5% per month, or the maximum permitted by law. (E) Third Party Payment. Client shall not be relieved of its payment obligations due to the failure of any third party to make timely payments.
- GOVERNING LAW AND VENUE. This Agreement, any dispute arising under or which is related to this Agreement (whether in contract, tort or otherwise), and the validity, performance and interpretation of this Agreement shall be governed by the laws of the State of Arizona (the “State”), without giving effect to such State’s conflicts of law principles. Any suit, action or proceeding arising from or relating to this Agreement must be brought, solely and exclusively, in the Superior Court of Maricopa County, Arizona, and each party irrevocably consents to the exclusive jurisdiction and venue of such court in any such suit, action or proceeding.
- ACCEPTANCE OF EQUIPMENT WITH ASSOCIATED SERVICES. (A) For Equipment with an Equipment Price of less than $25,000. After PacketWatch installs Equipment with an Equipment Price less than $25,000 with respect to which PacketWatch is providing associated Services, PacketWatch shall test the Equipment in accordance with the manufacturer’s diagnostic and readiness test specifications. The Equipment will be deemed accepted by Client at the end of the fifth (5th) business day after it has been made available for Client’s use, provided Client does not earlier provide notice to PacketWatch that the Equipment has failed to operate in accordance with the manufacturer’s specifications. (B) For equipment with an Equipment Price equal to or exceeding $25,000. With respect to any Equipment with an Equipment Price of $25,000 or more with respect to which PacketWatch is providing associated Services, PacketWatch shall demonstrate the Equipment to Client for conformance with any written specifications contained in the Order (the “Order Specifications”). Client, within 2 business days following such demonstrations, may advise PacketWatch by written notice of any deficiencies in operation as compared to the Order Specifications (a “Deficiency Notice”). If Client provides such Deficiency Notice, PacketWatch shall correct any actual deficiencies so that the Equipment operates in accordance with the Order Specifications and Client shall following such correction have an additional 5 business days to deliver an additional Deficiency Notice, if necessary. If Client fails to deliver a Deficiency Notice during any such 5 business day period, the Equipment shall be deemed accepted.
- ACCEPTANCE OF EQUIPMENT WITHOUT ASSOCIATED SERVICES. With respect to Equipment (regardless of the amount of the Order), with respect to which PacketWatch is not providing associated Services, acceptance is deemed to occur on the date of delivery (the “Delivery Date”) to the Premises specified on the respective Order.
- CERTIFICATE OF ACCEPTANCE. Upon the deemed acceptance of any Equipment in accordance with this Agreement, Client shall certify its acceptance of the Equipment promptly and in writing on a Certificate of Acceptance in a form provided by PacketWatch (a “CDA”). If Equipment is installed in phases, PacketWatch may request a CDA be executed by Client following completion of each such phase and Client agrees promptly to execute as requested. Client’s failure to deliver a CDA in accordance with this paragraph shall not negate any deemed acceptance as provided herein.
- BREACH. In the event of a breach by either Party hereunder, the aggrieved party may suspend performance of its obligations under this Agreement or any Order during the applicable cure period set forth herein.
- EVENT OF DEFAULT. A Party shall be deemed in default of this Agreement if: (i) such Party fails to make any payment when due and fails to cure the nonpayment within seven (7) days of receipt of written notice thereof; (ii) such Party commits a material breach of this Agreement (other than a breach for nonpayment) and fails to cure that breach within thirty (30) days following receipt of written notice describing the breach; (iii) Client refuses to permit PacketWatch to perform its obligations under this Agreement, acknowledges its intent to terminate or cancel this Agreement or any Order or terminates or cancels this Agreement or any Order for any reason other than a default by PacketWatch; or (iv) such Party ceases doing business or commences dissolution or liquidation proceedings.
- TERMINATION. In addition to any other remedies available to a non-defaulting Party under this Agreement, in equity or at law, in the event a Party is in default hereunder, the non-defaulting Party may immediately terminate this Agreement and/or any outstanding Order by delivering written notice of such termination to the defaulting Party. Termination of this Agreement shall not relieve either Party of its respective obligations to make any payment due hereunder or that expressly survives termination, including without limitation, Client’s respective obligations to protect Confidential information (as defined below).
- ORDER CANCELLATION. In the event Client cancels an Order prior to shipment, Client shall pay PacketWatch any and all costs incurred.
- TERMINATION BY PacketWatch. If PacketWatch terminates this Agreement or any Order in the event of a Client default: (A) in addition to any other rights or remedies set forth herein, Client shall promptly pay PacketWatch for the Equipment and any Services provided up to the date of termination; (B) Client’s down payment and/or Maintenance or Managed Services prepayment shall be nonrefundable; (C) any credits or discounts provided by PacketWatch to Client will be rescinded automatically.
- LIQUIDATED DAMAGES. The Parties agree that PacketWatch’s damages in the event of a termination are difficult or impossible to ascertain and that the amounts set forth in this Agreement are reasonable estimates of those damages.
- COMPLIANCE WITH LAW. PacketWatch may suspend performance under this Agreement or an Order if, in PacketWatch’s sole discretion, required by regulation, statute, judicial action or other applicable legal requirement.
- RISK OF LOSS, TITLE AND SECURITY INTEREST. (A) Risk of Loss. Client assumes the risk of loss of the Equipment from the Delivery Date. Client shall maintain insurance for the full insurable value of the Equipment until title passes to Client. (B) Transfer of Title. Title shall pass to Client upon full payment of the Equipment Price, including taxes, shipping, handling and other applicable charges. (C) Security Interest. Client grants PacketWatch a purchase money security interest in the Equipment purchased hereunder and agrees to execute all documents necessary to perfect that interest and, to the extent permitted by law, grants PacketWatch a special limited power-of-attorney for the sole purpose of executing the necessary documents. Client will not grant or convey to any other person or entity a security interest in, or permit placement of a lien on, the Equipment unless and until Client has paid PacketWatch in full for such Equipment.
- SOFTWARE LICENSE. Client acknowledges that Client’s license, if any, in any Software is granted, if at all, directly by the Software publisher or Equipment manufacturer from which the Software is provided, and not by PacketWatch. Client agrees to be bound by the Software publisher’s or Equipment manufacturer’s software license agreement.
- WARRANTY. (A) PacketWatch warrants that it will perform all Services hereunder in a good and workmanlike manner. (B) Unless otherwise set forth in this Agreement, all manufacturers’ end user warranties for Equipment provided hereunder are passed through to Client to the extent of their assignability. PacketWatch shall have no liability for any warranty provided by the manufacturer to Client. PacketWatch, at no cost to PacketWatch, will provide reasonable assistance to Client in presenting any such Equipment and/or Software claims to the manufacturer. (C) Client agrees that installation, repair, or modification of Equipment by non-manufacturer certified technicians may void the manufacturer’s warranty and may result in a denial of Software support Services. (D) UNLESS OTHERWISE STATED IN THIS AGREEMENT, THE WARRANTIES SET FORTH IN THIS SECTION ARE IN LIEU OF ALL OTHER WARRANTIES FROM PacketWatch. PacketWatch DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY OF NON-INFRINGEMENT, ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OF TRADE, TRADE PRACTICE OR ANY WARRANTY THAT THE SERVICES OR NETWORK TRANSPORT WILL BE UNINTERRUPTED OR ERROR FREE. PACKETWATCH SHALL NOT BE LIABLE FOR UNAUTHORIZED ACCESS TO PACKETWATCH’S OR CLIENT’S TRANSMISSION FACILITIES OR PREMISES EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF CLIENT’S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, COMPUTER VIRUSES OR ANY OTHER METHOD. PacketWatch MAKES NO WARRANTY FOR USE OF THE EQUIPMENT AS A COMPONENT IN LIFE SUPPORT DEVICES OR EQUIPMENT OR WITH RESPECT TO THE PERFORMANCE OF ANY SOFTWARE OR FIRMWARE. (E) Any services provided by PacketWatch during any applicable warranty period will not extend or restart such warranty period.
- MANAGED SERVICES AND MAINTENANCE OBLIGATIONS. PacketWatch’s Managed Services and post-warranty Maintenance obligations shall be as defined in the Order, Project Plan, the Scope of Work and/or an Addendum to the Order (collectively, the “Service Plan”).
- Preliminary 20 Day Lien NOTICE(S). (only for services involving the improvement of real property). If bills are not paid in full for the labor, materials, machine fixtures or tools furnished or to be furnished, a mechanic’s or materialman’s lien leading to the loss, through court foreclosure proceedings, of all or part of Client’s property being improved may be placed against the property. Client may wish to protect itself against this consequence by either: (a) Requiring PacketWatch and its subcontractors to furnish a signed release signed when payment is made; or (b) using any other reasonable method which is appropriate under the circumstances.
- LIMITATION OF LIABILITY. (A) IN NO EVENT SHALL PACKETWATCH BE LIABLE FOR: (i) ANY INDIRECT, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES; (ii) CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, COMMERCIAL LOSS OF ANY KIND WHICH INCLUDES LOSS OF BUSINESS, PROFITS, REVENUE OR SAVINGS, AND LOSS OF DATA OR MESSAGES; OR (iii) ANY DAMAGES OF ANY KIND RESULTING FROM UNAUTHORIZED USE OF OR INTRUSION INTO THE EQUIPMENT, INCLUDING FRAUD, SPOOFING OR COMPUTER VIRUSES. THIS PROVISION APPLIES TO ALL CLAIMS WHETHER BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR ANY OTHER LEGAL THEORY, AND REGARDLESS OF WHETHER PACKETWATCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. WITH RESPECT TO ANY CLAIM FOR DIRECT DAMAGES, THE ENTIRE LIABILITY OF PACKETWATCH FOR CLAIMS ARISING UNDER OR IN ANY WAY RELATED TO THIS AGREEMENT SHALL NOT EXCEED EITHER THE VALUE OF THE ORDER GIVING RISE TO THE CLAIM OR $1,000,000 WHICHEVER IS LESS. (B) PacketWatch shall be liable for any physical damage it causes to the Equipment or its components due to its gross negligence or willful misconduct. In such event, Client’s sole remedy shall be limited to either PacketWatch’s repair of the Equipment or component, or if the Equipment or component cannot be repaired, as determined by PacketWatch in its sole discretion, replacement with a comparable Equipment or component or a prorated refund.
- THIRD PARTY INFRINGEMENT CLAIMS. PacketWatch will defend at its expense or settle any third-party claim against Client or its Affiliates alleging that Products, Services, or Deliverables provided under this Agreement infringe intellectual property rights in the country where they were sold. PacketWatch will pay infringement claim defense costs, PacketWatch–negotiated settlement amounts, and damages finally awarded by a court. PacketWatch has no obligation for any claim of infringement arising from, and Client will indemnify PacketWatch against any third-party claim arising from: (i) PacketWatch’s compliance with Client or third party designs, specifications, instructions, or technical information; (ii) modifications made by any party other than PacketWatch; (iii) Client’s non-compliance with applicable Documentation; (iv) use of Products, Services or Deliverables for purposes not contemplated by this Agreement or applicable Documentation (including distribution to third parties); (v) Clients use or combination of Products, Services, or Deliverables with products, software, or services that are not provided by PacketWatch; or (vi) a Product, Service, or Deliverable that is not at the most current release level if the most current release level is noninfringing.
Bodily Injury Cross-Indemnity. Client and PacketWatch will each defend and indemnify the other and the other’s employees, officers, directors and agents against all damages for bodily injury, including death, or damage to real or tangible personal property to the extent proximately caused by the indemnifying party in the course of performing this Agreement.
Conditions. Each party’s indemnification obligations under this section are conditioned upon the indemnified party: (i) promptly notifying the indemnifying party of any claim in writing; (ii) cooperating with the indemnifying party in the defense of the claim; and (iii) granting the indemnifying party sole control of the defense or settlement of the claim.
- CONFIDENTIALITY. Client and PacketWatch respectively agree to keep in confidence, and not to disclose or use for its own respective benefit or for the benefit of any third party (except as may be required for the performance of services under this Agreement or as may be required by law), any information, documents, or materials that are reasonably considered confidential regarding each other’s products, business, customers, clients, suppliers, or methods of operation; provided, however, that such obligation of confidentiality will not extend to anything in the public domain or that was in the possession of either party prior to disclosure. PacketWatch and Client will take reasonable precautions to safeguard property of the other entrusted to it, but in the absence of negligence or willful disregard, neither PacketWatch nor Client will be responsible for any loss or damage.
- GENERAL PROVISIONS. (A) Execution. This Agreement may be executed contemporaneously in one or more counterparts, each of which shall be deemed an original, but which together shall constitute one instrument. In addition, the parties may rely on a facsimile transmission of the other party’s authorized signature to bind the other party. Client agrees to send an original to PacketWatch. (B) Non-Solicitation and Non-Hire. Client, including its subsidiaries and affiliates, shall neither directly nor indirectly solicit, hire nor contract with any PacketWatch employee(s) performing work for Client under this Agreement during the Term of this Agreement and for one (1) year after termination or expiration. (C) Consent to Modifications. THESE TERMS AND CONDITIONS MAY BE MODIFIED FROM TIME TO TIME AS REQUIRED BY LAW. CLIENT AGREES TO BE BOUND BY SUCH CHANGES, AS THEY PERTAIN TO THE PARTICULAR SERVICES CHOOSEN OR MAY CHOOSE IN THE FUTURE. IF SUCH CHANGES ARE NOT MANDATED BY LAW, SUCH CHANGES SHALL NOT BE APPLICABLE TO CLIENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO CASE SHALL ANY CHANGE DIMINISH ANY APPLICABLE SERVICE LEVEL AGREEMENTS ENTERED INTO AT THE TIME OF THE ORDER. CLIENT AGREES THAT ACCEPTANCE OF THIS AGREEMENT CONSTITUTES CONSENT TO THE USE OF ELECTRONIC RECORDS. (D) Agreement Precedence. In the event of any conflict between the Terms and Conditions, Scope of Work, exhibits, attachments or Orders the order of precedence shall be: (i) the General Terms; (ii) the Scope of Work; (iii) Service Plan(s); (iv) any Order; and (v) any other attachments and/or exhibits. (E) Merger and Modification. Except for the Managed Services Agreement between the Parties dated April 1, 2011, this Agreement supersedes and replaces in its entirety any document executed previously or contemporaneously to this Agreement, all prior or contemporaneous proposals, communications and negotiations, both oral and written, relating to the subject matter of this Agreement and constitutes the entire agreement between PacketWatch and Client with respect to the subject matter herein. In the event of a conflict with the terms of the Managed Services Agreement, the provisions of the Managed Services Agreement shall prevail. No usage of trade or course of dealing by or between the parties shall be deemed to constitute any modification or amendment of the terms of this Agreement. No subsequent agreement among the parties concerning the Services shall be effective or binding unless it is made in writing and executed by authorized representatives of the parties. Neither electronic mail nor instant messaging shall be considered a “writing” sufficient to change, modify, extend or otherwise affect the terms of the Agreement. If, at Client’s request, PacketWatch delivers additional Equipment, Software, Managed Services or Maintenance, or provides time and materials Services or other incidental Services relating to the Equipment, the terms of this Agreement will govern. Any representations, warranties or statements made by any employee, salesperson or agent of PacketWatch and not expressed in this Agreement are expressly not a part of this Agreement and shall not bind PacketWatch. (F) Assignment. Either Party may, without consent, assign this Agreement and its rights and obligations hereunder to (i) an affiliate of the assigning Party; (ii) a third party involved in the transfer or sale of all or substantially all of its business to which this Agreement pertains; or (iii) a third party involved in a merger, consolidation, change in control or similar transaction with the assigning Party. For any such assignment of this Agreement to be valid, the assignee must agree, in writing, to assume all obligations of its assignor under this Agreement.