EFFECTIVE AUGUST 4, 2015
Netrix, LLC (“Netrix”) agrees to supply, and Client agrees to purchase, deliverables and/or services subject to the following terms and conditions (together with the relevant quote, the “Terms”):
1. SHIPMENT AND DELIVERY: Delivery of product deliverables will be made FOB origin. Client is responsible for insuring deliverables during transport. Netrix will comply with all reasonable written shipping and handling instructions received prior to shipment. Netrix may require COD payment. Client shall examine all deliverables promptly upon receipt thereof. No later than 5 days after receipt, Client must notify Netrix of all claimed shortages or defective deliverables, and must specify with particularity all grounds for rejection. Failure to give such notice will be deemed an acceptance of the deliverables as of the date of shipment.
2. PERFORMANCE OF SERVICES: Unless otherwise indicated in the quote, professional services and software support will be performed during standard business hours at the location where the services are performed, 8:00 am to 6:00 pm local time Monday through Friday, excluding Netrix and government holidays. Software support to Client’s site may be provided remotely and will require access to Client’s systems. Non-subscription services provided outside of normal hours will be billed at 1.5 times the hourly rates set forth in the applicable quote, and if no hourly rates are listed, 1.5 times then-current undiscounted rates. In addition to such services as are described in a quote, activities including project management, preparing recommendations and change orders, problem research and/or resolution not covered by Netrix support, development of specifications, attending meetings, writing reports, performing activities under a project plan not listed in a quote, status updates, project preparation, travel to and from Client’s facilities more than 50 miles from Netrix and/or performing administrative tasks are all billable. Client shall reimburse Netrix for invoiced actual travel and out-of-pocket expenses incurred.
3. SOFTWARE, SUBSCRIPTION AND/OR OPTIMIZATION SERVICES. If a quote includes software deliverables, subscription-based or optimization services, applicable additional terms are contained in the Additional Terms Exhibits incorporated herein by reference, which are available at www.netrixllc.com/contracts.
4. CREDIT AND PAYMENT TERMS: Client shall furnish Netrix all reasonably requested financial information for the purpose of managing Client’s credit limit. Netrix may decline credit or change Client’s credit limit at any time and require pre-payment. Where Netrix extends credit to Client, title to deliverables will not pass to Client until full payment is made. Netrix may make UCC-1 filings on product deliverables until full payment is made.
Payment terms are as stated on Netrix’s invoice. Interest in the lesser of 1.5% per month or the maximum amount allowed by law may be charged on all past due balances. Credit card (MasterCard and VISA) payments are only accepted if agreed at the time of order, and additional service fees may apply.
If Client fails to make timely payment of any amount invoiced hereunder, Netrix, in addition to any and all other rights and remedies, may immediately revoke any credit extended, terminate or suspend performance under any quote, reclaim or hold any unpaid deliverables, suspend services, and/or reduce or cancel any discounts extended to Client. Client shall reimburse Netrix for all costs of collection, including court costs, administrative charges, and reasonable attorneys’ fees. Any obligations of Netrix under any quote on credit terms will terminate without notice if Client files a voluntary petition under a bankruptcy statute, or makes an assignment for the benefit of creditors, or if an involuntary petition under a bankruptcy statute is filed against Client, or if a receiver or trustee is appointed to take possession of the assets of Client.
5. TAXES: Fees do not include taxes, duties, VAT and any other government or regulatory imposed charges (collectively, “Taxes”) or shipping, insurance and handling. Shipping, handling and insurance charges will be invoiced. For states in which Netrix is registered to do business (currently Illinois, Wisconsin, California, New York and Texas), Netrix will pay any state Taxes it is required to pay by law and invoice Client for the same (including taxes that may be assessed after termination). For all other states and all local jurisdiction taxes, Client will self-assess and pay Taxes.
6. RETURNS: Returns for convenience are not accepted on all deliverables. All items returned must be complete, unopened, unused, and in resalable condition. At Netrix’s sole discretion, opened items may be returned with a minimum of a 20% restocking fee plus return shipping to Netrix or our distributor as indicated by Netrix.. Memory products and opened software cannot be returned. All service charges including but not limited to configuration charges, delivery charges, and freight will not be credited and must be paid. Netrix requires preauthorization for the return of all products. Items not preauthorized for return will be refused or returned to Client at Client’s expense. In all events, Client shall bear the risk of loss or damage during transit.
7. DEFECTIVE RETURNS: Client must within 30 days of delivery advise Netrix of any defect in product deliverables provided and, without deduction or offset, upon obtaining proper authorization of Netrix ship defective product deliverables to such location as directed by Netrix. Netrix may reimburse the expense of shipping the defective product deliverables to its warehouse and the expense of shipping the repaired or replaced product deliverables to Client, unless such product deliverables were not defective, in which case Client shall bear all reasonable expenses incurred in inspecting, testing, and returning the product deliverables. In all events, Client shall bear the risk of loss of damage during transit. Netrix reserves the right to require Client to return defective product deliverables directly to the manufacturer for replacement according to the manufacturer’s return policy. Netrix is not obligated to repair or replace deliverables rendered defective, in whole or in part, by causes external to the deliverables, such as, but not limited to, catastrophe, power failure or transients, over voltage on interface, environmental extremes, improper use, maintenance and application of the deliverables, or use of unauthorized parts.
8. ORDER CANCELLATION POLICY: Cancellation charges may apply if an order is canceled prior to shipment or delivery to Client. Applicable Charges including but not limited to return freight to Netrix’s distributors, any non-cancellable third party charges, and configuration charges will be billed to Client upon order cancellation.
9. DUTIES UPON TERMINATION: Upon termination of these Terms, Client shall no later than the termination date erase and cease use of any subscription-based software and pay Netrix all amounts due up to the effective date of such termination, including payment of all non-cancelable items, decommissioning expenses, and payment of all amounts remaining due for the full term under services and subscriptions with a term commitment. If Client has not paid all amounts due as of the date of termination, Netrix may retain or recover any deliverables, or Client equipment hosted at Netrix, until full payment is made in addition to any other remedies it may have at law or in equity. Any termination will be without prejudice to any other right or remedy afforded to Netrix.
10. CONFIDENTIALITY: The parties may exchange information that is confidential (“Confidential Information”). Confidential Information of each party includes its trade secrets, methods, processes or procedures, financial, technical and nonpublic business information, information about employees and clients, and all other information identified in writing as confidential. Confidential Information of Netrix includes all proposals, pricing, contract terms, software owned by Netrix, data definitions, database structures, training materials, help system content and any guides or other documentation, and any information about Netrix suppliers, employees and contractors. Confidential Information does not include information which: (a) is or becomes a part of the public domain through no act or omission of the recipient; (b) was in the recipient’s lawful possession prior to the disclosure from a source other than disclosing party; (c) is lawfully disclosed to recipient by a third party without restriction on disclosure; (d) is independently developed by recipient without use of disclosing party’s Confidential Information; or (e) is disclosed by operation of law. Each recipient shall protect the disclosing Party’s Confidential Information from disclosure to any unpermitted third party using at least a reasonable degree of care, and each recipient agrees to use the disclosing Party’s Confidential Information only for the purpose of performance under these Terms. Notwithstanding the foregoing, Netrix may disclose the Client’s Confidential Information to its consultants, agents or employees who have a need to know and who have agreed in writing to protect such confidential information confidential at least to the extent set forth herein. The provisions of this Section 10 shall survive termination of these Terms.
(a) Netrix Warranties: Third party products and services are covered only by the original provider’s warranty, if any, and Netrix will pass through any available manufacturer warranties to Client. All services are provided “as is.” Client acknowledges that break-fix services are provided in emergency situations only at Client’s request, and Client agrees that any conflicting terms in other any agreement between Client and Netrix shall not apply to “break-fix” services. NETRIX HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND THE STATUTORY WARRANTY OF NONINFRINGEMENT. IN NO EVENT SHALL NETRIX BE LIABLE FOR DAMAGES OF ANY KIND ALLEGED TO HAVE RESULTED FROM ANY BREACH OF WARRANTY. This disclaimer of warranty may not be enforceable in all jurisdictions and if not enforceable shall be interpreted to provide the broadest possible enforceable disclaimer.
(b) Client Warranties: Client warrants to Netrix that Client has the authority to allow Netrix to use all facilities, equipment, Client software, Client Confidential Information and all other materials provided by Client; that Netrix may rely on instructions and information provided by Client and its agents, that Client will be solely responsible for compliance with all laws applicable to its industry (including laws applicable to privacy and data protection), that Client is compliant with all client-owned software licenses for software managed by Netrix, and that Client has or will secure all necessary consents, permits, permissions, clearances, authorizations and waivers necessary for the services.
(c) Exclusions: Netrix is not liable for claims involving third party product or service deliverables; Client’s data, software, hardware or systems; services not performed by Netrix; defects or changes in Client’s computer systems; Client’s failure to take reasonable security measures to protect its data and networks; modification of any deliverable by any party other than Netrix; Client’s choice of deliverables and services; claims resulting from Client’s instructions to Netrix; claims alleging infringement; and any issue that is outside the scope of services in a quote or not under the reasonable control of Netrix. Netrix is not liable for abuse, damage to or theft of Client’s equipment or data or deliverables located at Client facilities; or for claims relating to data security or privacy, intrusions into Client’s system, Sharepoint, WAN and LAN throughput, Client server and workstation performance, issues due to power, general internet and general telecommunications outages, quality of service issues not caused by Netrix, or data or packet loss not caused by Netrix
12. LIMITATION OF LIABILITY: IN NO EVENT SHALL NETRIX BE LIABLE FOR ANY LOST OR MISAPPROPRIATED DATA OR CONTENT, IDENTITY THEFT, GOVERNMENTAL FINES OR PENALTIES, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE SERVICES AND DELIVERABLES PROVIDED UNDER THESE TERMS, EVEN IF NETRIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. CLIENT ACKNOWLEDGES THAT WITHOUT THESE DISCLAIMERS AND LIMITATIONS SET FORTH IN THIS SECTION 12 THE COST OF THE SERVICES AND DELIVERABLES WOULD BE GREATER. NETRIX SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE, CLAIM OR INJURY WHICH RESULTS FROM THE USE OR APPLICATION BY CLIENT OR ANY OTHER PARTY OF DELIVERABLES AND/OR SERVICES PROVIDED HEREUNDER, UNLESS THE LOSS, DAMAGE, CLAIM OR INJURY RESULTS DIRECTLY FROM THE GROSSLY NEGLIGENT, INTENTIONALLY TORTIOUS OR FRAUDULENT ACTS OR OMISSIONS OF NETRIX. THE TOTAL LIABILITY OF NETRIX FOR ALL DAMAGES HEREUNDER IN ANY FORM OF ACTION IS LIMITED TO THE NET PURCHASE PRICE OF DELIVERABLES AND/OR SERVICES PAID FOR BY CLIENT CAUSING THE LOSS, DAMAGE, CLAIM OR INJURY.
13. SEVERABILITY: A judicial determination that any provision hereunder is invalid in whole or in part shall not affect the enforceability of all other provisions, and a court of competent jurisdiction shall interpret such a provision in a manner to be enforceable and consistent with the parties’ intentions.
14. GOVERNING LAW AND VENUE: These Terms shall be construed and governed by the laws of the State of Illinois, except for its conflicts of law principles. Any legal proceeding related to these Terms shall be brought exclusively in the State or Federal courts located in Lake or Cook County, Illinois, and the parties agree that these courts shall have subject matter jurisdiction over all such disputes.
15. NOTICES: Any notices which any party may be required, or may desire, to give hereunder shall be deemed to have been given if delivered by confirmed and prepaid overnight courier addressed:
In the case of the Netrix:
2801 Lakeside Drive – 1st Floor
Bannockburn, IL 60015
Attn: Tony Donato and General Counsel – Notice with a copy to Notice@netrixllc.com.
In the case of the Client: to the most recent address the Netrix has on file for the Client. Client agrees to notify Netrix of any and all address changes as soon as they occur.
16. EXPORT CONTROL: Client acknowledges and agrees that the goods purchased and software licensed under these Terms may be subject to restrictions and controls imposed by the United States Export Administration Act and the regulations thereunder. Client agrees to comply with all applicable export and reexport control laws and regulations, including the Export Administration Regulations maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations maintained by the Department of State. Specifically, Client covenants that it shall not, directly or indirectly, sell, export, reexport, transfer, divert, or otherwise dispose of any goods received from Netrix under these Terms to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations.
17. NON-SOLICITATION: For a period of 1 year following the termination or completion of any deliverables or Services provided by Netrix (the “Non-Solicitation Period”), Client shall not, directly or indirectly, solicit, hire, retain or otherwise engage any employee, independent contractor, consultant, sub-contractor, person or entity retained or contracted by Netrix at any time during the Non-Solicitation Period without the express written consent of Netrix. Should Client hire any employee of Netrix, a placement fee of 100% of the employee’s last full calendar year’s total annual compensation paid by Netrix shall be paid by Client within 5 business days of the applicable employee commencing work.
18. FORCE MAJEURE: Except for payment obligations hereunder, neither party shall be held responsible for failure to perform hereunder if such failure is a result of acts of god, acts of foreign or domestic enemies, or for any other matter beyond the nonperforming party’s reasonable control (each a “Force Majeure” condition). Neither party is entitled to terminate these Terms in such circumstances unless such Force Majeure event continues for a period of 30 days or more.
19. PARAGRAPH HEADINGS DESCRIPTIVE ONLY: The parties acknowledge that these Terms consist of multiple paragraphs each of which is preceded by a heading, and that the characterizations of such paragraphs are for general descriptive purposes only and are not definitive in nature.
20. ENTIRE AGREEMENT: The parties specifically acknowledge that this document embodies the whole agreement of the parties for the purchase of deliverables and services on this quote, no other communication or agreement between the parties shall apply. The parties agree that there are no promises, terms, conditions, or obligations other than those contained herein, and that these Terms shall supersede all previous communications, representations, or agreements either verbal or written, between the parties hereto for the deliverables and services in the attached quote.
21. WAIVER: The parties specifically acknowledge and agree that neither these Terms nor any provisions hereof may be amended waived, discharged or terminated orally, but only by an instrument duly acknowledged and executed in writing by the party against whom enforcement of the change is sought.
22. SURVIVAL: The provisions of Sections 4, 9, 10 and 12 through 22 shall survive termination or expiration of these Terms.