These terms and conditions govern the sale and purchase of the products and services (“Items”) in the attached quote and/or Statement of Work (“SOW”) between Packet6 LLC (“Packet6”) and the party to which the quote and/or Statement of Work is issued (“You”).
1. Consultation Services. The You hereby employs the Packet6 to perform the following services in accordance with the terms and conditions set forth in this agreement: The Packet6 will consult with the officers and employees for You concerning matters relating to the Statement of Work to You.
2. Orders. Packet6 may offer to sell You third party manufactured hardware, software licenses or Third Party Maintenance (defined in Section 13) (“Products”) and/or Services (defined in Section 9) as identified in a Packet6-issued Quote (“Quote”) or Statement of Work (“SOW,” as defined in Section 10). Packet6’s offer to sell the Items in the Quote or perform under a SOW are expressly conditional upon Your acceptance of these terms and conditions without additional or different terms. You may accept Packet6’s Quote by issuing a responsive purchase order or accept Packet6’s SOW by executing the SOW, and each constitutes an “Order.” You agree the Quote or SOW and these Terms and Conditions of Sale are the entire agreement between us (“Agreement”) and any terms and conditions are expressly rejected and superseded by the terms and conditions of this Agreement.
3. Prices and Taxes. Quotes and SOWs are void if You do not accept them within 30 days. Prices in a Quote or SOW do not include applicable taxes, freight or handling charges.
4. Payment and Invoicing. You agree to pay Packet6 in full 30 days from date of invoicing without offset or deduction. Packet6 issues invoices (i) for Products upon shipment, (ii) for managed services, (iii) for Third-Party Maintenance at the commencement of the service period, and (iv) for all other Services at the time of performance or as agreed in the SOW. Undisputed past due invoices are subject to a finance charge of the greater of 1% per month or the maximum allowed by law. Packet6 mean cease the performance of Services if any undisputed invoice remains past due 5 days after Packet6 notifies You.
5. Independent Contractor. Both the You and the Packet6 agree that the Packet6 will act as an independent contractor in the performance of its duties under the agreement. Accordingly, the Packet6 shall be responsible for payment of all taxes including Federal, State and local taxes arising out of the Packet6’s activities in accordance with this agreement, including by way of illustration but not limitation, Federal and State income tax, Social Security tax, Unemployment Insurance taxes, and any other taxes of business license fee as required.
6. Indemnification. You shall indemnify, defend, and hold harmless Packet6, Packet6’s affiliates, and each of their respective officers, directors, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys fees, whether or not a lawsuit or other proceeding is filed) arising out of or related to the actual or alleged use of the services in violation of: (A) any other portion of this Agreement, or (B) applicable law, by any person regardless of whether such person has been authorized to use the Services by You.
Reciprocal. Each Party shall indemnify, defend, and hold harmless the other Party, the other Party’s affiliates, and each of their respective officers, directors, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorney fees, whether or not a lawsuit or other proceeding is filed) arising out of or related to (A) the indemnifying Party’s actual or alleged infringement or misappropriation of a third party’s Intellectual Property Rights; (B) the negligent or willful misconduct of the indemnifying Party or its employees or agents.
7. Confidentiality. Bot You and Packet6 agrees not to disclose Confidential Information to any third party or to use each other’s Confidential Information for any purpose other than the implementation of this Agreement. Both You and Packet6 agree to use the same degree of care that we use to protect our own confidential information. We each will hold Confidential Information in confidence for a period of 2 years after termination of this Agreement. “Confidential Information” includes information that is labeled confidential or would reasonably be considered confidential, and does not include information that (a) is or becomes a part of the public domain through no act or omission of the receiving party; or (b) was in the receiving party’s lawful possession prior to the disclosure and not subject to nondisclosure requirements; or © was lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party. Either of us may disclose Confidential Information as required by law or governmental ruling provided, however, that we shall notify the other before doing so.
8. Employment of Others. You may from time to time request that Packet6 arrange for the services of others. All costs to Packet6 for those services will be paid by You but in no event shall the Packet6 employ others without prior authorization from You.
9. Services Descriptions. “Services” governed by this Agreement are those services Packet6 performs other than cloud services. Descriptions of Packet6 services are as set forth in the applicable SOW. The terms of Packet6’s service description(s) are incorporated by reference into this Agreement. Services provided and charged based on labor time and materials supplied (a) carry a 4-hour minimum charge, (b) are estimated for budgeting purposes and not performed by a fixed deadline or for a set charge, and © are considered accepted at the time of delivery. Packet6 will comply with Your published and reasonable standard safety and security policies when performing Services on Your premises.
10. Statements of Work. Services may require a SOW which is a contract governed by this Agreement and specifying the details of a particular Service. In the case of any conflict between the terms of this Agreement and a SOW, the terms of the SOW will control.
11. SOW Deliverables. For any deliverables identified in a SOW and provided to You (or a corrected version of the same), You will have 10 business days from delivery to notify Packet6 in writing if it fails to comply with the applicable acceptance criteria specified in the SOW (“Acceptance Criteria”). Your written notice shall itemize how the deliverable fails to meet the Acceptance Criteria (“Failure”). Packet6 will use commercially reasonable efforts to promptly remedy all confirmed Failures and provide a corrected deliverable to You. If You or a third party authorized by You modifies a deliverable which causes a Failure, such deliverable shall be deemed automatically accepted and any Packet6 efforts to correct the Failure will be on agreed terms. A SOW may specify alternate acceptance period(s) or terms. If no Acceptance Criteria are specified in a SOW then the corresponding deliverable is deemed accepted at time of delivery.
12. Software Licensing. Any third party software is subject to the license terms provided with it, and all software license terms are established directly between You and the software licensor. Packet6 is not a party to any such software license and makes no warranties or representations related to the software.
13. Third-Party Maintenance. “Third-Party Maintenance” is product support service delivered by a third party that is resold to You by either Packet6 or another Third-Party. Third Party Maintenance is subject to the service description(s), terms and conditions identified by the applicable third party provider. Packet6 is not a party to any such third party terms and conditions and is not responsible for the delivery of Third-Party Maintenance.
14. Shipping and Delivery. All shipments in the USA are F.O.B Destination Freight Prepaid and Added. Delivery or Products to locations outside of the country in which they are Ordered will be subject to additional fees specified on a Quote. Risk of loss to Products passes to You upon delivery to the agreed ship to location. Title to Products passes to You when Packet6 receives payment in full of the Product purchase price. You acknowledge the applicable manufacturer or distributor controls shipment, and any shipment dates Packet6 provides are estimates only. Packet6 will not be liable for any delay in delivery or failure to give notice of such delay. Products delivered to Packet6’s facility for staging Services will be shipped to You no later than 10 days after completion of such Service, and You agree to accept delivery of such products or reimburse Packet6’s warehousing cost. You will accept and pay for partial shipments of Products.
15. Return Policy. You will promptly notify Packet6 of any discrepancy in shipment quantity or type or shipment damage and Packet6 will remedy any such issues at its cost. Correctly delivered Products may not be returned unless Packet6 approves it and any such returns (i) are subject to the manufacturer’s restocking fees and related charges, (ii) must be in the original shipping cartons, undamaged, unused and unaltered, and (iii) specify a Return Material Authorization (“RMA”) number. You will comply with manufacturer RMA requirements.
16. Third Party Software. If software licensed to You is used in the performance of Services, (i) You will ensure Packet6 has the right to use it, (ii) Packet6 will use it only in the performance of Services, and (iii) the rights in any derivative works, customizations and/or enhancements of it will be subject to the terms of the applicable third party software license.
17. Your Obligations. Your timely, complete and accurate provision of, and access to, Your equipment, services, facilities, personnel, third party software and/or information may be necessary for Packet6 to perform Services. Packet6 will inform You of Your failure to provide such goods or assistance, and any resulting inability to perform Services will be excused until You cure the failure. Any such failure may also result in increased charges which Packet6 will confirm with You. If Packet6 equipment is installed at Your location for delivery of Services You agree (i) You are responsible for any loss or damage to such equipment, (ii) Packet6 retains ownership of such equipment, and (iii) to return that equipment at Your expense within 30 days of termination of Service or pay Packet6 its then current depreciated value.
18. No Solicitation. During Packet6’s performance of Services and for 6 months thereafter, neither of us shall solicit for employment or retention as an independent contractor any employee or former employee or Retained Personnel of the other who provided or received any Services. “Solicit” shall not be deemed to include advertising in newspapers, web sites, or trade publications available to the public.
19. Disputes and Arbitration. We will promptly notify each other in writing of any dispute and factual background. If we cannot resolve the dispute within 30 days, either of us may seek to resolve it by arbitration.
20. Insurance. Packet6 maintains Professional Liability insurance with the following limits: $1,000,000 per occurrence and in aggregate. Packet6 will provide a certificate of insurance upon Your request.
21. Applicable Law. This agreement and interpretation of its terms shall be governed by and construed in accordance with the laws of the State of California and subject to the exclusive jurisdiction of the federal and state courts located in Santa Clara, CA.
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