Sales and quotations by NWN Corporation (“NWN”) are governed by these Standard Terms and Conditions of Quotation and Sale (“Agreement”). Each quotation provided by NWN to a customer (“Customer”) is conditioned on that Customer’s acceptance of this Agreement. The terms and conditions of this Agreement shall prevail notwithstanding any other terms and conditions printed on any ordering document submitted by Customer, all of which shall be void and of no effect.
a. Generally. All written quotations of price (“Quote”) made by NWN will be valid for a period of thirty (30) days without exception from date set forth on the Quote. NWN will make every reasonable effort for timely delivery of Quote to Customer however NWN does not assume responsibility for delays in receipt of quotations to Customer. NWN will not honor or provide verbal quotations of price under any circumstances. NWN and the Customer agree that the terms and conditions set forth in this Agreement will govern all orders submitted by Customer and accepted by NWN for (i) the provision by NWN of those services set forth in SOWs executed by the parties hereunder, hereinafter referred to collectively as “Services”, and (ii) the procurement by NWN on Customer’s behalf of third party hardware, software and support subscriptions, hereinafter referred to collectively as “Products”. For the avoidance of doubt, NWN’s acceptance of Customer’s order, and NWN’s Quote, is expressly conditioned on
Customer’s agreement to this Agreement and this Agreement will govern any resulting sale. Customer’s acceptance of items described in Quote will manifest Customer’s consent hereto. If Customer requests shipment based on telephone or facsimile order, Customer does so with the understanding that this Agreement will apply.
b. For Services. Subject to this Agreement, Customer may place an order for Services by submitting a purchase order to NWN specifying the type of Services desired at the rates or fees subject to the terms and conditions of this Agreement and any additional terms specified in the Quote and/or Statements of Work referencing this Agreement (“SOW”) provided by NWN and agreed to by Customer. Each SOW executed by the parties shall be attached hereto. All SOWs executed by the parties are hereby expressly incorporated by reference herein. Upon acceptance of the Customer’s purchase order, NWN will (i) invoice Customer as specified in the applicable Quote or SOW, and (ii) commence performance of the Services in accordance with the applicable Quote or SOW. Unless otherwise specified in the applicable Quote or SOW, NWN will invoice Customer upon Customer’s approval of the Services as the Services are completed, in accordance with the milestones set forth in the SOW. Approval of Services upon completion of a milestone shall occur on the earlier of (x) written approval (which may be by email) of the Services for the applicable milestone by Customer’s project sponsor or (y) 5 business days from the date of NWN’s notice (which may be by email) to Customer’s project sponsor that the Services for the applicable milestone have been completed and delivered to Customer, unless NWN has received written notice from the Customer’s project sponsor that Customer believes in good faith that the Services for the applicable milestone are incomplete. If prior to the commencement or during the performance of the Services, Customer wishes to change the dates or the scope of the Services to be performed, NWN will require Customer to sign a Change Order Form in the form attached to the SOW setting forth the changed Services and the conditions and rates or fees, if any, under which NWN will perform such changed Services. If such Change Order requires additional fees, Customer must submit a purchase order or purchase order change notice indicating Customer’s agreement to pay such additional fees for NWN to perform such changed Services. If prior to the commencement or during the performance of the Services purchased, Customer (i) fails to deliver any required material or services and/or, (ii) fails to provide access to computer systems or facilities, as specified in the original Quote or SOW, NWN may require Customer to sign a Change Order Form in the form attached to the SOW setting forth the conditions and rates or fees, if any, under which NWN will continue providing Services. If such Change Order requires additional fees, Customer shall be required to submit a purchase order or purchase order change notice indicating Customer’s agreement to pay such additional fees for NWN to continue to perform the Services.
b. For Products. – Subject to this Agreement, Customer may place an order for Products by submitting a purchase order to NWN specifying the type of Products desired at the prices and subject to the terms and conditions of this Agreement and any additional terms specified in Quotes and/or SOW’s provided by NWN and agreed to by Customer. Upon acceptance of Customer’s purchase order NWN will place an order with its suppliers for the Products specified in such purchase order. Unless otherwise specified in the applicable Quote or SOW, NWN will invoice Customer, and risk of loss will pass to Customer, (i) upon shipment of ordered Products from NWN’s suppliers directly to Customer, or (ii) when ordered Products are received by NWN if Customer has requested Product configuration services in conjunction with its Product order, or when ordered Products are received by NWN if Customer has requested Product staging or temporary storage. Upon Customer’s request, NWN will provide proof of receipt for Products invoiced that are in NWN’s possession. Customer shall be responsible for freight charges, restocking fees or other supplier imposed fees associated with returned Products. Customers who participate in manufacturer trade-in programs shall comply with the terms of the manufacturer’s trade-in program and shall be responsible for all fees, costs and expenses associated with participating in the trade-in program.
3. NBLOCK. NBlock is a Customer pre-paid account that can be established by Customer by entering into a separate N-Block Addendum with NWN, which NBlock Addendum will be subject to all terms and conditions of this Agreement.
4. PAYMENT TERMS.
a. General. Unless otherwise specified in the applicable Quote or SOW, Customer shall pay NWN within 30 days of receipt of an invoice for Products or Services and within 10 days of receipt of invoices for deposits . NBlock credits may be applied by NWN to Customer invoices as set forth in the NBlock Addendum. Customer shall be required to pay shipping and handling charges and applicable taxes. If a Quote or SOW includes a provision for charging Customer for travel and lodging related expenses incurred by NWN employees in connection with the performance of such Services, NWN will invoice Customer monthly for actual expenses incurred. Customer shall provide written notice to NWN of any disputed invoiced amounts due within thirty (30) days of receipt of NWN’s invoice. Failure by Customer to so notify NWN of a dispute within such thirty (30) day period shall constitute a waiver of Customer’s right to dispute the invoiced amount and such amounts shall be considered valid and no adjustment will be made. In no event shall Customer’s notice of good faith dispute relieve Customer of its obligation to pay, in full, all undisputed amounts due.
b. Taxes. Applicable taxes will be billed by NWN as itemized on a separate line item(s) on NWN’s invoice. Customer shall pay sales, use, value added, goods and services, and all other similar taxes imposed by any federal, state, or local governmental entity for Products and/or Services provided under this Agreement, excluding taxes based solely on NWN’s income or property. Any taxes paid on behalf of Customer by NWN shall be uniquely identified on the applicable invoice and NWN shall provide Customer with proof of payment if previously paid by NWN.
c. Reasonable Assurances. If NWN at any time has reasonable concern about security or timeliness of payments, NWN may notify Customer and if Customer fails to cure such concern within thirty (30) business days from NWN’s written notice, NWN may decline to make any or all shipments to and/or perform services for Customer hereunder until receipt of payment or establishment of a letter of credit or other arrangement securing payment that it deems satisfactory.
5. CANCELLATION. Cancellation by Customer of all or any part of an order for Services two weeks or less prior to the agreed upon commencement date may, in NWN’s sole discretion, be subject to a charge to Customer of 10% of the quoted fees and Customer agrees to pay any such charges. Cancellation by Customer of all or any part of an order for Services after commencement of such Services may, in NWN’s sole discretion, be subject to a charge to Customer of 10% of the remaining balance of the order and Customer agrees to pay any such charges. Recognizing that NWN’s damages resulting from any cancellation would be difficult to determine, Customer agrees that the foregoing charges are reasonable and intended as liquidated damages.Cancellation by Customer of all or any part of an order for Products may be subject to cancellation charges imposed by the manufacturer or distributor and Customer agrees to pay any such charges. Payment of the foregoing charges shall be due and payable by Customer within thirty (30) days of Customer’s receipt of NWN’s invoice.
6. LIMITED WARRANTY.
a. Services: NWN warrants that the Services provided hereunder shall be performed in a good and workmanlike manner in accordance with industry standards. If Customer discovers a deficiency in the Services, then Customer shall, within forty-five (45) days after completion of the deficient Services, submit to NWN a written report describing the deficiency in reasonable detail, and NWN shall re-perform the deficient Services. If NWN is unable to re-perform the Services, then, upon Customer’s request, NWN shall refund any payments that Customer has made for such Services. Any such Services for which Customer does not submit a deficiency report shall be deemed accepted at the conclusion of such forty-five (45) day period. The foregoing is Customer’s sole and exclusive remedy for breach of the foregoing warranty with respect to the Services and NWN’s sole liability.
b. Products: NWN makes no warranties with respect to the Products, but will make available to Customer, to the extent permitted by law and relevant contracts with the manufacturer or developer of the relevant Products, the warranties provided by the manufacturer or developer of the relevant Product upon Customer’s timely written request.
c. DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 6, NWN MAKES NO OTHER REPRESENTATIONS, WARRANTIES OR COVENANTS WITH RESPECT TO THE PRODUCTS OR SERVICES, ALL OF WHICH ARE PROVIDED “AS IS”, AND DISCLAIMS ALL OTHER EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS AND COVENANTS, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE TO THE MAXIMUM EXTENT PERMITTED BY LAW.
7. LIMITATION OF LIABILITY.
a. Acknowledgement. Customer acknowledges that an essential purpose of the exclusion of warranties and limitation of liability provided in this Agreement is allocation of risks between Customer and NWN, which allocation of risks is reflected in the applicable fees and other arrangements between Customer and NWN in the Agreement.
b. Direct Damages Limitation. NWN’S LIABILITY, WHETHER IN CONTRACT, TORT OR OTHERWISE, DIRECT OR INDIRECT, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, ANY SERVICES PERFORMED OR PRODUCTS PROVIDED HEREUNDER SHALL NOT EXCEED DIRECT DAMAGES IN AN AMOUNT EQUAL TO THE AMOUNT PAID TO NWN BY THE CUSTOMER FOR THE APPLICABLE PRODUCT OR SERVICE GIVING RISE TO THE CLAIM IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE.
c. Consequential Damages Limitation. IN NO EVENT SHALL NWN OR ITS SUPPLIERS OR SUBCONTRACTORS BE LIABLE FOR ANY SPECIAL, PUNITIVE, RELIANCE, INCIDENTAL, INDIRECT, RELIANCE, CONSEQUENTIAL OR ANALOGOUS DAMAGES, INCLUDING BUT NOT LIMITED TO LOST REVENUES, PROFITS OR GOODWILL, INTERRUPTION OF BUSINESS, COST OF SUBSTITUTE GOODS OR SERVICES, DAMAGES RESULTING FROM LOSS OF USE OR LOSS OF DATA, OR OTHER ANALOGOUS DAMAGES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, EVEN IF NWN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
d. General. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER NWN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. No limitation as to damages for personal injury is hereby intended. Some states do not allow the exclusion or limitation of incidental or consequential damages under certain circumstances and the above exclusions or limitations may not apply.
e. Limitation on Actions. No action, regardless of form, arising out of this Agreement may be brought by either party more than two (2) years after the cause of action has been or reasonably should have been discovered, or, in the case of an action for nonpayment, more than two (2) years after the date the last payment was due.
8. SECURITY INTEREST. NWN reserves, and by receipt of each Product delivered to Customer, Customer hereby grants to NWN, a purchase money security interest in each of the Products, as security for the due and punctual performance of all of Customer’s payment obligations under this Agreement. This interest will be satisfied by payment in full of all undisputed amounts payable to NWN under this Agreement and any SOWs issued hereunder. Customer agrees to execute such documents to evidence and perfect such security interest as NWN may request from time to time. Customer hereby appoints each of NWN’s officers as its duly authorized agent for the purpose of taking any and all such action, including, without limitation, execution of financing statements on Form UCC-1 and other documents, deemed necessary by NWN, in NWN’s sole discretion, for the perfection and enforcement of the security interest granted hereby. Failure by Customer to pay any undisputed amount due hereunder when due shall constitute a default if not paid within thirty (30) days of receipt of NWN’s notice of nonpayment and, in such event NWN shall, in addition to any other remedies available to it under applicable law, have all rights of a secured party under the Uniform Commercial Code of the state in which the Products are located.
9. NON-WAIVER OF DEFAULT: REMEDIES – In the event of any default by Customer under this Agreement or any other contract between Customer and NWN, NWN may decline to make any or all shipments to and/or perform services for Customer and, Customer will pay all costs incurred by NWN in connection with enforcement of any of NWN’s rights, including, without limitation, reasonable attorney’s fees. If NWN elects to continue to make shipments or perform services, NWN’s action will not constitute a waiver of any default by Customer or in any way affect NWN’s legal rights or remedies for any such default. All of NWN’s rights and remedies under this Agreement will be cumulative, non-exclusive and in addition to all other rights and remedies available, at law, in equity, by contract or otherwise, and may be exercised singularly or concurrently.
10. NON-DISCLOSURE; PROPRIETARY RIGHTS. Each party shall hold all information regarding the other party’s business operations or business systems (including, without limitation, trade secrets, inventions, designs, software programs or documentation, prices, financial information, sales, marketing and product plans and information or business plans), whether disclosed in writing, orally or visually, in trust and confidence for the other party and not use it or disclose it to others without the other party’s prior written permission except as required to perform its obligations under this Agreement and any Quote or SOW issued hereunder. Notwithstanding the foregoing, the above restrictions shall not apply to any information or other material which is (i) already in the receiving party’s possession without restriction on use or disclosure, (ii) within the public domain (iii) made available to the receiving party from third parties not under a similar obligation of confidentiality; (iv) disclosed by the disclosing party on an unrestricted basis to third parties; (v) developed by the receiving party independently without breach of this Agreement; or (vi) required by law or court order to be disclosed provided that the receiving party gives the disclosing party notice and assists the disclosing party in obtaining a protective order. All inventions, ideas, drawings, designs, techniques, software and improvements (whether patentable or unpatentable) made or conceived by NWN or its agents or employees in the course of providing Services under this Agreement excluding Customer’s own proprietary information (collectively “NWN Inventions”), shall be NWN’S property, and Subject to payment of all applicable fees hereunder, Customer shall have the right to use such NWN Inventions; provided, however, that (i) Customer shall use such NWN Inventions only for its own internal business purposes and (ii) Customer shall not disclose to, or use for the benefit of any other person any such NWN Inventions without NWN’S prior written consent.
11. RECRUITMENT OF PERSONNEL. During the period which Services and Products are being provided to Customer by NWN, and for a period of one year thereafter, in the event that Customer desires to hire any employee of NWN they shall give NWN not less than 30 days written notice before such employee’s start date and shall pay NWN a one-time fee equal to 25% of such employee’s then current annual salary with NWN on or prior to the employees’ start date with Customer.
12. TERM. This Agreement shall remain in effect until terminated by either party upon written notice to the other party. Customer’s obligations to pay accrued charges and fees shall survive termination of this Agreement and Sections 4, 6(c), 7, 8, 10, 11, 12 and 13 shall survive the termination of this Agreement. Upon any termination of this Agreement each party shall return the confidential information of the other party in its possession, including all extracts and copies thereof, to the other party.
13. GENERAL PROVISIONS. NWN will maintain reasonable and customary general liability and professional liability insurance with respect to the performance of its obligations under this Agreement and the Quotes and SOWs issued hereunder. This Agreement shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Massachusetts, without regard to its principles of conflict of laws. The parties agree that any action or proceeding between them relating to this Agreement shall take place (i) in the Federal or state courts located in Boston, Massachusetts, if the claim is initiated by Customer, and (ii) in the Federal or state courts located in the county where the Customer principal business office is located (or, if none exist, in a nearby county within the same state), if the claim is initiated by NWN; the parties hereby expressly submit themselves to the jurisdiction of the named courts for these purposes, and waive any objection to personal jurisdiction or venue in such courts. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. This Agreement will be binding upon, and inure to the benefit of, the parties hereto and their respective legal representatives, successors and permitted assigns. The Agreement is personal to Customer, and Customer may not assign any of its rights or delegate any of its obligations hereunder, in whole or in part, without NWN’s prior written consent which shall not be unreasonably withheld. Any attempt by a Customer to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. NWN may assign this Agreement to its affiliates or to their respective successors in a merger, acquisition or other consolidation, including without limitation the sale of all or substantially all of its assets, stock or business to which this Agreement relates. This Agreement is the complete and exclusive statement of the agreement between the parties and supersedes all prior and contemporaneous agreements, understandings, arrangements, and communications with respect to the subject matter hereof. All Quotes and SOWs for the Services and Products shall be issued under and governed by this Agreement and subject to the terms and conditions set forth herein. In the event of any conflict between the provisions in this Agreement and any Quote or Statement of Work, the terms of such Quote or SOW shall prevail if so expressly stated in such Quote or SOW. This Agreement may be modified only by a written instrument signed by an authorized representative of each party. It is intended that this Agreement shall not violate any applicable law and the unenforceability or invalidity of any provision shall not affect the force and validity of the remaining provisions and such invalid provisions shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. NWN shall not be responsible for delays or failures to perform any of its obligations herein due to any cause beyond its reasonable control, including but not limited to riot, acts of war, unavailability of raw materials, failures of suppliers, telecommunications or power failure, natural disasters or acts of God. Performance times under this Agreement and any Quote or SOW issued hereunder shall be considered extended for a period of time equivalent to the time lost because of any delay which is excusable hereunder. Any required notices shall be given in writing at the address set forth below or such other address either party may provide by written notice. Notice shall be deemed to have been given upon receipt.
14. U.S. GOVERNMENT CONTRACTS. If the Products to be furnished under this contract are to be used in the performance of a U.S. Government contract or subcontract, and a U.S. Government contract number shall appear on Customer’s purchase order, those clauses of the applicable U.S. Government procurement regulations which are required by Federal Statute to be included in U.S. Government subcontracts are incorporated herein by reference.
Standard Terms and Conditions of Sale and Quotation
Rev. 1.0 May 2014