ORDER AND ACCEPTANCE
- Applicability. Each quotation (“Quotation”) and/or Statement of Work (“SOW”) (collectively referred to as “Offer Documents”) issued by Clutch Solutions, LLC. (“Clutch Solutions”) is an offer to sell software, hardware, or Services Sold by Part Number (“Products”), and/or professional services, Service Desk services, or staffing services (“Services”) to the purchaser (“Customer”) for its own internal use and not for resale. Unless otherwise specified in writing, all Offer Documents are governed by these Terms and Conditions of Sale (“Terms of Sale”). As used in these Terms of Sale, the term “Services Sold by Part Number” refers to services, which, although ordered from Clutch Solutions, are procured from and supplied by a third party (i.e., Clutch Solutions does not directly perform or control the work) and are therefore considered Products. Offer Documents shall be deemed accepted by Customer upon Clutch Solutions’ receipt of a purchase order, a signed Offer Document, a signed third-party lease agreement for the purchase of Products and/or Services, or through any other conduct that evidences the existence of a contract with respect to the Products and/or Services that are the subject of the Offer Documents. Acceptance of the Offer Documents and these Terms of Sale is expressly limited to the terms contained in the Offer Documents and these Terms of Sale. Clutch Solutions rejects any terms and conditions contained in Customer’s forms that are additional to or different from those set forth in the Offer Documents or in these Terms of Sale.
Additional Terms for Product Sales
- Product Returns and Warranty Assistance.
- Customer acknowledges that Clutch Solutions is reselling all Products purchased by Customer and that Products are manufactured and/or delivered by a third party.
- To the extent available, Clutch Solutions shall pass through to Customer the manufacturer’s warranties for each Product and agrees to facilitate the manufacturer’s return policies. In no event will Clutch Solutions provide return or warranty coverage beyond that provided by the manufacturer. Products that are accepted for return are subject to the manufacturer’s applicable restocking fees.
- Customer acknowledges that the terms and conditions governing the use of Products shall be solely between Customer and the manufacturer of such Products.
- Product Use and Product Warranty Disclaimer. Customer will not use the Products for use in life support, life-sustaining, nuclear, or other applications in which failure of such Products could reasonably be expected to result in personal injury, loss of life, or catastrophic property damage. Customer agrees that Clutch Solutions is not liable for any claim or damage arising from such use.
CLUTCH SOLUTIONS MAKES NO WARRANTIES OF ANY KIND WITH REGARD TO THE PRODUCTS. CLUTCH SOLUTIONS DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.
- Shipment and Risk of Loss for Product Sales. All shipments of Products to Customer will be FOB point of shipment. Insurance coverage, freight charges, transportation costs, and all other expenses applicable to shipment to Customer’s identified point of delivery will be the responsibility of Customer. Risk of loss will pass to Customer upon delivery of the Products to the common carrier (regardless of who pays such common carrier) or Customer’s representative at the point of shipment.
- Product Security Interest. Customer grants Clutch Solutions a security interest in the Products detailed in the Quotation as security for payment in full. Customer authorizes Clutch Solutions to file and/or record any documents it deems necessary to perfect this security interest.
Additional Terms for Service Sales
- Limited Warranty for Services. Except for staffing Services, Clutch Solutions represents and warrants that Services will be performed in a good and workmanlike manner according to the generally accepted standards of the industry to which the Services pertain. All Services will be deemed to be in accordance with this warranty if not rejected by Customer in a reasonably detailed writing within five (5) days of performance of the Services. In the event Services are not in conformance with this warranty, Clutch Solutions will take the steps necessary to correct the deficiency at no charge. THIS IS CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THIS WARRANTY.
- Limited Warranty for Staffing. For staffing Services only, Clutch Solutions represents and warrants that any consultant provided to Customer will have the qualifications and hold the certifications represented to Customer by Clutch Solutions. Clutch Solutions makes no other representations or warranties with respect to the staffing Services to be provided.
- Service Warranty Disclaimer. EXCEPT AS PROVIDED FOR UNDER SECTIONS 6 AND 7, CLUTCH SOLUTIONS MAKES NO WARRANTIES OF ANY KIND WITH REGARD TO THE SERVICES. CLUTCH SOLUTIONS DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. ALL SERVICE WARRANTIES ARE VOID IF THE SERVICE IS MODIFIED BY ANY PARTY OTHER THAN CLUTCH SOLUTIONS OR ITS AUTHORIZED AGENT.
- Clutch Solutions Property. Clutch Solutions property, including without limitation, equipment, software, and tools which may be furnished or utilized by Clutch Solutions in the performance of Services shall remain the property of Clutch Solutions and shall be immediately returned to Clutch Solutions upon its request or upon completion of the Services.
- Service Work Assignments. Clutch Solutions retains the right to assign such personnel, including subcontractors, as it deems appropriate to the performance of Services. Clutch Solutions shall be fully responsible for the acts of all subcontractors to the same extent it is responsible for the acts of its own employees.
- Customer Coordination for Service Sales. Customer will provide a primary point of contact and make available all technical matter, data, information, operating supplies, and computer system(s), as reasonably required by Clutch Solutions. Where applicable, Clutch Solutions will assign a primary contact person for the Services.
Terms Applicable to All Sales
- Price and Payment. The prices set forth in any Offer Documents are exclusive of all taxes, duties, licenses, and tariffs, payment of which shall be Customer’s obligation. Prices quoted are firm for thirty (30) days unless otherwise specified in the Offer Documents. Payment is due thirty (30) days from the date of invoice. In the event Customer chooses to finance their purchase using a third party, Customer remains liable for payment to Clutch Solutions until Clutch Solutions receives complete payment from such third party. Where the Offer Documents include the purchase of both Products and Services, the transactions shall be deemed to be separate for the supply of Products and the supply of Services. No default or delay in the delivery of Products shall relieve Customer’s payment obligation for Services delivered by Clutch Solutions and no default or delay in the delivery of Services shall relieve Customer’s payment obligation for Products delivered by Clutch Solutions. All payments will be made in US currency. Out-of-pocket expenses will be charged as incurred. Estimates are not binding. Customer will pay interest in the amount of one and one half percent (1.5%) per month, or the maximum allowed by law, whichever is lower, on any outstanding balance owed.
- Confidential Information. All information that is not generally known to the public that is disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) or that is otherwise learned by the Receiving Party in the course of its discussions or business dealings with, or its physical or electronic access to the premises of, the Disclosing Party, that by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as confidential, shall be considered “Confidential Information” which shall be held in strict confidence by the Receiving Party for three (3) years from the date of disclosure and shall be used only for purposes of the delivery of Products or Services. Except as required by law, no Confidential Information shall be disclosed to a third party without the prior written consent of the Disclosing Party. If the Receiving Party is legally required to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party shall notify the Disclosing Party immediately in writing, provide the Disclosing Party with a copy of such order, and shall cooperate in seeking a reasonable protective order. If a protective order is not granted, the Receiving Party will disclose only such Confidential Information as is legally required and will use its best efforts to obtain confidential treatment for any Confidential Information that is so disclosed. This Section shall not apply to information which is (i) in the public domain, (ii) already known to the Receiving Party, (iii) developed independently, or (iv) received from a third party without similar restriction and without breach of this or a similar agreement.
- Export. Customer agrees to comply with all export and re-export control laws and regulations as may be applicable to any transaction hereunder, including, without limitation, the Export Administration Regulations promulgated by the United States Department of Commerce, the International Traffic in Arms Regulations promulgated by the United States Department of State, and any of the regulations promulgated by the Office of Foreign Assets Control of the United States Department of the Treasury. Customer covenants that it will not, either directly or indirectly, sell, (re)export (including, without limitation, any deemed (re)export as defined by applicable law), transfer, divert, or otherwise dispose of any Product or Service deliverable, or related software or technology, to: (i) any country or region of a country (or nationals thereof) subject to antiterrorism controls, or a U.S. embargo, (ii) any destination prohibited (without a valid export license or other authorization) by the laws or regulations of the United States, or (iii) any person, entity, vessel, or aircraft identified on the Consolidated Screening List, a downloadable file of which is accessible at http://export.gov/ecr/eg_main_023148.asp(or utilize any such person, entity, vessel, or aircraft in connection with the activities listed above), without obtaining prior authorization from the competent government authorities, as required by the above-mentioned laws and regulations. Customer certifies, represents, and warrants that no Product or Service shall be used for any military or defense purpose, including, without limitation, being used to design, develop, engineer, manufacture, produce, assemble, test, repair, maintain, modify, operate, demilitarize, destroy, process, or use military or defense articles. Notwithstanding any sale of Products or provision of Services by Clutch Solutions, Customer acknowledges that it is not relying on Clutch Solutions for any advice or counseling on export control requirements. Customer agrees to indemnify, to the fullest extent permitted by law, Clutch Solutions from and against any fines, penalties, and reasonable attorney fees that may arise as a result of Customer’s breach of this Section 14.
- Limitation of Liability. NO MONETARY RECOVERY IS AVAILABLE FROM CLUTCH SOLUTIONS FOR WARRANTY CLAIMS. IN ADDITION, IN NO EVENT WILL CLUTCH SOLUTIONS’ LIABILITY ARISING OUT OF THESE TERMS OF SALE EXCEED THE PURCHASE PRICE PAID FOR THE PRODUCT OR SERVICE THAT IS THE BASIS FOR THE PARTICULAR CLAIM. FOR SERVICE DESK SERVICES, THE TOTAL LIABILITY OF CLUTCH SOLUTIONS SHALL NOT EXCEED SIX (6) MONTHS BASE CHARGE FOR THE SERVICE THAT IS THE BASIS FOR THE PARTICULAR CLAIM. CLUTCH SOLUTIONS WILL NOT, IN ANY EVENT, BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, LOST OR DAMAGED DATA, AND LOSS OF BUSINESS OPPORTUNITY), HOWEVER CAUSED, ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT OR SERVICE, OR IN ANY WAY CONNECTED TO THESE TERMS OF SALE, EVEN IF CLUTCH SOLUTIONS HAS BEEN ADVISED OF SUCH DAMAGES AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY WHETHER ANY CLAIM IS BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE, INFRINGEMENT OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY, CONTRIBUTION, OR OTHERWISE.
- Encryption. Customer shall encrypt at the application level all data that is considered sensitive data or that must be treated as confidential under state or federal law or under Customer’s contractual obligations to others, which is provided to Clutch Solutions or to which Clutch Solutions is otherwise granted access. This includes, but is not limited to, Social Security Numbers, financial account numbers, driver’s license numbers, state identification numbers, Protected Health Information (as that term is defined in Title II, Subtitle F of the Health Insurance Portability and Accountability Act, as amended (HIPAA) and regulations promulgated thereunder), and Nonpublic Personal Information (as that term is defined in Financial Services Modernization Act of 1999 (Gramm-Leach-Bliley) and regulations promulgated thereunder). In the event that Customer fails to comply with this Section 16 and a security breach results in the dissemination of unencrypted sensitive data, Clutch Solutions disclaims all liability for said breach. Customer agrees to indemnify, to the fullest extent permitted by law, Clutch Solutions from and against any fines, penalties, and reasonable attorney fees that may arise as a result of Customer’s breach of this Section 16.
- Cancelation and Termination. The purchase of Products may be canceled by Customer only upon written approval of Clutch Solutions and upon terms that indemnify Clutch Solutions against all losses related to such cancelation. Services may be terminated by either party upon written notice in the event of a material breach of these Terms of Sale by the other party which is not cured within thirty (30) days of receipt of such notice. In addition, if Customer defaults in performance of any obligation under these Terms of Sale, including the payment of any amount due, Clutch Solutions may, at its option, suspend performance, require prepayment, and/or utilize any other remedy at law or equity.
- Attorney Fees. Customer shall reimburse Clutch Solutions for any and all expenses including, without limitation, reasonable attorney fees and legal expenses, that Clutch Solutions pays or incurs in protecting and enforcing its rights under these Terms of Sale.
- Publication. Nothing contained in these Terms of Sale shall be interpreted so as to prevent Clutch Solutions from publicizing its business relationship with Customer or the nature of the Products sold to or Services performed for Customer.
- No Solicitation. Customer agrees not to solicit for employment or to employ any Clutch Solutions employee during the term of these Terms of Sale and for a period of twelve (12) months following the conclusion of Services performed under these Terms of Sale.
- Indemnification. Customer agrees to defend, at its expense, and to indemnify Clutch Solutions against any award of damages and costs based on a claim that any materials or documentation provided by Customer infringes a U.S. patent, copyright, or other intellectual property rights of any third party.
- Governing Law and Jurisdiction. The validity, construction, and interpretation of these Terms of Sale, and the rights and duties of the parties hereto, shall be governed by and construed in accordance with the laws of the State of Arizona, excluding its conflict of laws principles. Any legal action or proceeding arising under these Terms of Sale will be brought either in the federal court in the state of Arizona or state courts located in Maricopa County, Arizona, and the parties hereby irrevocably consent to the personal jurisdiction and venue therein. The U.N. Convention on the International Sale of Goods (UNCISG) shall not apply to these Terms of Sale.
- No Waiver. The failure of either party to insist upon strict performance of any of the provisions of these Terms of Sale will not be deemed a waiver of any breach or default. The remedies provided to Clutch Solutions hereunder are not a waiver of the remedies of Clutch Solutions under applicable law.
- Severability. If any provision of these Terms of Sale is unenforceable as a matter of law, all other provisions will remain in effect.
- Excusable Delay. Clutch Solutions will not be liable for any delay or failure of performance whatsoever due to acts of God, earthquakes, shortage of supplies, transportation difficulties, labor disputes, riots, war, fire, epidemics, or other circumstances beyond Clutch Solutions’ control.
- Time for Bringing Claims. Any claim by Customer against Clutch Solutions arising from or in connection with Clutch Solutions’ sale of Products and/or Services cannot be filed, made, or maintained unless filed within six (6) months after shipment or provision of the Products and/or Services in question.
- Understanding of the Parties. These Terms of Sale supersede all prior or current written or oral statements, representations, negotiations, agreements, and understandings between the parties.
- Amendment. These Terms of Sale may be amended or modified only with the written consent of the parties.
- Third Party Beneficiaries. These Terms of Sale do not confer any enforceable rights or remedies upon any person or party other than the parties.
- Compliance with Laws. The parties will comply with all applicable federal, state, and local laws, statutes, rules, and regulations.
- Independent Contractors. The parties are independent contractors and these Terms of Sale shall not create or imply an agency relationship between the parties.
- Survival. Those provisions that by their nature should survive termination will survive.