TERMS AND CONDITIONS FOR THE PURCHASE OF SERVICES
1.
Definitions. In
these terms and conditions ("Terms and Conditions") the following words have
the meanings stated:
"Company" iS3
Tech Services, LLC
"Contract" Any contract for the purchase of Services by the Company from
the Supplier, which shall include these Terms and Conditions and a SOW, as defined below
"Goods" Any
goods and materials supplied by the Supplier in connection with the Services
"Order" The
Company's purchase order to the Supplier in respect of the Services
"Services" The
services that Supplier is to perform for Company under this Contract, including
any Goods supplied pursuant thereto
"Party" Either
the Supplier or the Company. Parties shall mean both the Supplier and the
Company
"SOW" Means
the Statement of Work describing the Services to be performed by Supplier and
compensation terms agreed to in exchange for the performance of the Services
"Supplier" Means
the supplier to whom the Order is issued
2.
Formation of
contract; No Partnership or Employee Relationship
2.1
Formation. A Contract shall be formed when the Company accepts
the quotation supplied by the Supplier by issuing the Supplier an Order.
2.2
Content. Each purchase of Services which is so accepted shall
constitute an individual legally binding Contract between the Company and the
Supplier and shall include these Terms and Conditions together with any
specifications, drawings or conditions referred to in it, and all additional
terms and conditions in the Order or implied by law. The Contract is liable to cancellation
unless the Order is accepted by the Supplier within 10 working days of the date
of the Order. Acceptance shall be by means of any written acknowledgment
whether or not it seeks to impose new conditions (unless clearly stated on its
face to be a counter-offer) or Supplier's commencement of performance of the
Services. In the case of any conflict, these Terms and Conditions shall prevail
unless expressly agreed by the Company in writing.
2.3
Amendment of
Terms and Conditions. No variation or
amendment of the Contract or oral promise or commitment related to it shall be
valid unless committed to writing and signed by or on behalf of both Parties.
2.4
No partnership
or joint venture. Nothing in this
Contract is intended, or shall be construed, to create a partnership, joint venture,
or employer-employee relationship between the Parties. Neither Party has
authority to act on behalf of the other or to enter into any contract, incur
any liability, or make any representation on behalf of such Party.
2.5
No benefits. Supplier will not be entitled to any of the benefits
that Company may make available to its employees including, but not limited to,
group health or life insurance, stock options, profit sharing, or retirement benefits.
2.6
Taxes and
Withholdings. Supplier is solely
responsible for all taxes and withholdings, severance and redundancy pay,
benefits (including, without limitation, vacation or holiday accrual, sick
leave, holidays, pension or profit sharing contributions, stock options, etc.),
and other similar obligations, in respect of itself and its employees, whether
statutory or otherwise, with respect to payments made by Supplier relating to
the performance of the Services and its receipt of compensation under this
Contract.
2.7
Tax and
Withholding Indemnity. In addition to
any other indemnity obligations, Supplier will defend, indemnify, and hold
Company harmless from any and all claims made by any person or any entity on
account of an alleged failure to satisfy any obligation specified in Sections
2.5 and 2.6.
2.8
Personnel. At Company's direction, Supplier will remove any
Supplier personnel or a subcontractor of Supplier from performance under the
terms of this Contract.
3.
Price and Payment
3.1
The Supplier shall:
3.1.1
Provide a fixed price for all works in the
quotation (the "Contract Price");
3.1.2
Break down costs
on a line by line basis for material;
3.1.3
Show labor and
material costs separately;
3.1.4
Include all tax on
quotes;
3.1.5
Include all
shipping and custom handling charges on quotes.
3.2
The Supplier shall invoice the Company in
respect of the Services within thirty (30) days of completion. Where the
Supplier enters into a sub-contract with a supplier or contractor for the
purpose of performing its obligations under the Contract, it shall ensure that
a provision is included in each such sub-contract which requires payment to be
made of all sums due by the Supplier
to the sub-contractor within a specified period not exceeding thirty (30) days from
the receipt of a valid invoice and provides for the adoption of the Terms and
Conditions into the sub-contract.
3.3
The Supplier shall
ensure that:
3.3.1
Company's Order
number is referenced on all invoices;
3.3.2
The amount
invoiced does not exceed the amount of Company's Order;
3.3.3
Each invoice only
references one Order number;
3.3.4
The invoice descriptions, quantity, units, unit
price, vendor name, billing address and currency must match the Order;
3.3.5
Mark the Company's Order numbers with hours
expended and any part numbers on all invoices, advice notes, statements,
correspondence packages and packing.
3.4
Terms of payment
are 30 days from the end of the month following receipt of the Supplier's invoice unless otherwise specified in the
Contract.
3.5
Without prejudice
to any other remedy, the Company may suspend or delay payment if the Supplier
fails to comply with clauses 3.1-3.3 and failure by the Supplier to submit an
invoice within 60 days of completion of the contract may result in non-payment
of the Supplier's invoice.
3.6
All Change Orders
must be in writing, signed by both Company and Supplier, and set forth the
specific changes in order to be binding.
4.
Services
4.1
Supplier shall
supply the Services during the period specified by the Company in accordance
with the Order. The Company may inspect and examine the manner in which the Supplier
supplies the Services at any time, on giving the Supplier reasonable notice.
4.2
If the Company
informs the Supplier in writing that the Company reasonably believes that any
part of the Services does not meet the requirements of the Company or differ in
any way from those requirements, the Supplier shall at its own expense
re-schedule and carry out the Services in accordance with the requirements of
the Contract within such time as may be specified by the Company.
5.
Manner of Carrying
out the Services.
5.1
Supplier shall at
all times perform services in a quality manner, and where applicable shall
maintain accreditation with any relevant authorization body. Supplier shall
perform its obligations under the Contract in accordance with the applicable
law and good industry practice.
5.2
Supplier shall
ensure that all staff or subcontractors it engages supplying the Services shall
do so with all due skill, care and diligence and shall possess such qualifications,
skills and experience as are necessary for the proper supply of the Services.
Supplier shall be liable to Company for any failure to deliver the Services to
the required standards, notwithstanding that it has used a subcontractor to
provide the Services on its behalf.
6.
Recovery of Sums Due
6.1
Wherever under the
Contract, or any other claim, any sum of money is recoverable from or payable
by the Supplier (including any sum which the Supplier is liable to pay to the
Company in respect of any breach of the Contract), the Company may unilaterally
deduct that sum from any sum then due, or which at any later time may become
due to the Supplier under the Contract
or under any other agreement or contract with the Company as a right of offset.
6.2
Any overpayment by
either Party, whether of the Contract Price or otherwise, shall be a sum of
money recoverable by the Party who made the overpayment from the Party in
receipt of the overpayment.
6.3
The Supplier shall
make all payments due to the Company without any deduction whether by way of
set-off, counterclaim, discount, abatement or otherwise unless the Supplier has
a valid court order requiring an amount equal to such deduction to be paid by the
Company to the Supplier.
6.4
All payments due
shall be made within a reasonable time unless otherwise specified in the
Contract, in cleared funds, to such bank account as the recipient Party may
from time to time direct.
7.
Termination/rejection
7.1
Supplier Default. If the Supplier defaults in any of its obligations under
the Contract, becomes insolvent, has a receiver appointed, or is compulsorily
or voluntarily wound up, or if the Company has a bona fide belief that any of
such events may occur, the Company shall be entitled, at its discretion,
without prejudice to any other remedy, to suspend the performance of or
terminate the Contract and in the event of termination to keep or take
possession of any Goods or of any items belonging to the Company and to enter
any premises of the Supplier for that purpose.
7.2
Conformance of Services. If any Services supplied do not conform to the Contract on any grounds in the Company's discretion, the Company
shall be entitled, without prejudice to any other remedy, to exercise any one
or more of the following rights:
7.2.1
Reject the Services
in whole or in part;
7.2.2
Permit the
Supplier to complete the Services in a manner acceptable to Company and conform
to the Contract; and
7.2.3
Carry out or have
carried out at the Supplier's expense such work as is necessary to conform the
Services to the Contract.
7.3
Accounting on
Termination. If the Company terminates
the Contract or rejects any Services, the Supplier shall return all payments
already made for the rejected Services. Where on termination the Company elects
to keep or take any Services it shall account to the Supplier for them at a
proportion of their price or their value to the Company whichever is less but
otherwise no compensation shall be payable to the Supplier on termination or rejection.
7.4
Waiver. None of the demands for payment, or the acceptance
of payment, or the failure by Company to enforce any of the terms or conditions
contained herein at any time or for any period will (i) release or exonerate,
or (ii) in any way affect the liability of the Supplier, or (iii) be a waiver of:
7.4.1
Any or all of the
Terms and Conditions;
7.4.2
The right of the
Company at any time afterwards to enforce each and every term and condition contained herein; or
7.4.3
Any penalty
attached to their non-performance.
8.
Warranty. The Supplier shall, at its own
expense, make good any defects which under proper use appear in the Services
during a period beginning on the acceptance of the Services and ending one (1)
year after their completion, or such other defects period stipulated by the
Company in the Order.
9.
Indemnification
and Loss
9.1
Indemnification
and Loss. The Supplier shall be liable
to the Company and indemnify the Company in relation to any direct loss
suffered as a result of:
9.1.1
Defects in the
Services;
9.1.2
Direct damage to
tangible property caused by failure of Supplier's Services;
9.1.3
Direct damage or
financial loss arising from any advice given or omitted to be given by the
Supplier to the Company, or any loss caused directly or indirectly by any act
or omission of the Supplier; and
9.1.4
Any direct loss
suffered by the Company caused by any third party legal action or threat to
take legal action against the Company due to the Services infringing
intellectual property rights.
10. Insurance
10.1
Insurance. The Supplier shall be at all times fully insured with
a reputable insurer against all insurable liability under the Contract
including (but not limited to):
10.1.1
Employee liability
insurance of at least $2,000,000 (two million dollars);
10.1.2
Public liability
insurance of at least $2,000,000 (two million
dollars).
10.2
Evidence of
Insurance. To the extent permitted by
the insurance conditions, the Supplier must provide to the Company upon request
sufficient evidence of the existence, together with details relating to the
existence of the insurance coverage that it is obliged to have and maintain
under clause 10.1.
10.3
Indemnification by
Supplier. Supplier shall defend,
indemnify and hold Company harmless from and against any and all claims, losses, damages, liabilities, settlement,
costs, or expenses (including legal expenses and the expenses of other
professionals) (collectively "Claim") as incurred, arising out of or in
connection with any (i) act or omission of Supplier (including its
Subcontractors) in the performance of the Work; or (ii) any infringement (or
alleged infringement) of a third party's Intellectual Property Rights or any
other rights; (iii) any Claim by any employee or their representative arising
directly or indirectly from any act, fault or omission (or any alleged act,
fault or omission) of the Supplier in respect of the employees at
any time, and (iv) to the fullest extent permitted by law, any Claim alleging
that Supplier's employees or agents, or their representatives, are entitled to
any form of compensation or damages from Company, due to bodily injury
(including death) or illness suffered by Supplier's employees or agents while
performing the Services.
10.4
Indemnification by
Supplier. Supplier shall defend,
indemnify and hold Company harmless from and against any and all claims, losses, damages, liabilities, settlement,
costs, or expenses (including legal expenses and the expenses of other
professionals) (collectively "Claim") as incurred, arising out of or in
connection with any (i) act or omission of Supplier (including its
Subcontractors) in the performance of the Work; or (ii) any infringement (or
alleged infringement) of a third party's Intellectual Property Rights or any
other rights; (iii) any Claim by any employee or their representative arising
directly or indirectly from any act, fault or omission (or any alleged act,
fault or omission) of the Supplier in respect of the employees at
any time, and (iv) to the fullest extent permitted by law, any Claim alleging
that Supplier's employees or agents, or their representatives, are entitled to
any form of compensation or damages from Company, due to bodily injury
(including death) or illness suffered by Supplier's employees or agents while
performing the Services.
10.5
Indemnification
Procedure. Company will provide
Supplier with prompt written notice of the Claim and permit Supplier to control
the defense, settlement, adjustment, or compromise of any Claim. Company may
employ counsel at its own expense to assist it with respect to any Claim. Company
will have no authority to settle any Claim on Supplier's behalf.
10.6
No Limitation
of Remedy. Nothing in this Section
shall limit any other remedy of the parties.
11. Designs and intellectual property
11.1
Ownership. The Goods, trademarks used in relation to or relating
to the Services, and all patterns, designs, drawings and other documents
prepared in connection with the Order or the Contract or supplied to the
Company and copyright and design right and all other intellectual property
rights in those documents shall belong to the
Company.
11.2 Use.
Supplier shall use all drawings
and documents only for the purposes of the Contract and shall return them delivery paid to the Company on the Company's
request at any time or if no request is made
on the completion of the Contract.
11.3 Errors. The Supplier shall be responsible
for any errors or omissions in any drawings, calculations or particulars
supplied by it whether or not such information has been approved by the
Company.
12. Confidentiality
12.1
Confidential
Information. The Supplier shall not at
any time whether before or after the termination of the Contract divulge or use
any unpublished technical information derived from the Company or any other confidential information in relation to
the Company's affairs or business or method of carrying on business. Supplier
shall have no obligation with respect to information
which: (i) was rightfully in possession of or known to Supplier without any
obligation of confidentiality prior to receiving it from Company; (ii) is, or
subsequently becomes, legally and publicly available without breach of this
Contract; (iii) is rightfully obtained by the Supplier from a source other than
the Company without any obligation of confidentiality; (iv) is developed by or
for the Supplier without use of the Confidential Information and such
independent development can be shown by documentary evidence; (v) becomes
available to Supplier by wholly lawful inspection or analysis of products
offered for sale; or (vi) is disclosed by Supplier pursuant to a valid order
issued by a Court or government agency.
12.2
Ownership of
Records. All records in any medium
(whether written, computer readable or otherwise) including accounts,
documents, drawings and other papers including private notes concerning the
Company and all copies and extracts of them made or acquired by the Supplier in
the course of the Contract are the property of the Company, and the Supplier
shall:
12.2.1
Use them only for
the purposes of the Company; and
12.2.2
Return them to the
Company on demand at any time and without demand on the termination of the
Contract
13. No
Solicitation. During the term of the Contract and for a
period of twelve (12) months after expiration or termination of the Contract,
Supplier agrees not to solicit, recruit, engage or otherwise employ or retain,
on a full-time, part-time, consulting, work-for-hire or any other kind of
basis, any agent, employee or independent contractor of Company, whether or not
said person has been assigned to perform tasks under this Agreement. In the
event such employment, consultation or work for hire event occurs, Supplier
agrees that work-for-hire shall be entitled to an agency commission to be the
greater of either (a) 25% of said person's starting salary with Customer, or
(b) 25% of fees paid to said person over a twelve (12) month period if engaged
by Customer as an independent contractor. In the event of (a) above, payment of
the commission will be due within 30 days of the employment starting date. In the event of (b) above, payment will be
due at the end of any month during which the independent contractor performed
services for Customer. In the event of nonpayment in connection with this
Section 13, Company shall be entitled to seek all remedies under law and
equity.
14.
Assignment and sub-contracting
14.1 Assignment and sub-contracting. The Supplier shall not, without first obtaining the Company's
written consent (which shall not be unreasonably withheld) assign or
sub-contract the Contract in whole or in part and it shall be a condition of
any such consent to any assignment or sub-contracting of the Contract that the
Supplier shall:
14.1.1
Insure and be
responsible for the compliance by any sub-contractor with the terms of the Contract;
14.1.2
Include in the
sub-contract, provisions consistent with these conditions for the benefit of
and enforceable by the Company; and
14.1.3
Furnish the
Company with copies of any sub-contract upon the Company's request at any time.
15. Law and jurisdiction.
These Terms and Conditions shall be governed by Georgia law and the
Supplier consents to the exclusive jurisdiction of the courts of Gwinnett
County, Georgia in all matters regarding them, without regard to conflict of law provisions contained therein. All
claims, disputes, and matters in question arising out of, or relating to this
Agreement or the breach thereof, except for claims, which have been waived by
the making or acceptance of final payment, shall be submitted to non-binding
mediation. In the event that such mediation fails to resolve the dispute, either
party may file a lawsuit in Gwinnett County, Georgia. In the event Company
refers the Contract to an attorney to recover any amounts owed by Supplier to
Company hereunder, the parties agree that the amount to be recovered, and any
judgment to be entered, shall include interest at the rate of 1.5% per month
from the date payment is due, and Supplier shall pay Company's legal fees.
16.
Notices
16.1
Notice. Any notice given under these terms and conditions
shall be in writing and may be served:
16.1.1
By hand;
16.1.2
By email or
facsimile transmission (the latter confirmed by post); or
16.1.3
By any other means
which any party specifies by notice to the others as a means by which it is
willing to accept service.
16.2
Address. Each party's address for the service of notice is the
address contained in the Contract or such other address as he specifies by
notice to the others.
16.3
Service. A notice is deemed to have been served:
16.3.1
If it was served
in person, at the time of service;
16.3.2
If it was served
by post, 48 hours after it was posted; and
16.3.3
If it was served
by email or facsimile transmission, at 09:00 AM on the first working day after
the time of transmission unless the parties sending and receiving the notice
agree an earlier time of service.
17. Time of essence. The time of performance of the
Parties' obligations under these Terms and Conditions shall be of the essence.
18. Third parties.
The parties intend that no term of this document may be enforced by any
person who is not a party to this Contract.