This Inside Sales Terms and Conditions (“Agreement”) for Arrow SI Services (as defined below) is made by and between Arrow Systems Integration, Inc. (“Arrow SI”) and the customer identified in the applicable Inside Sales Order Form (“Customer”). Arrow SI, or its providing affiliate or subcontractors, may sell and/or license, install, and maintain Equipment and/or CPE (as defined below), or otherwise perform services for Customer at Customer locations within the continental United States as described in the applicable Order Form (individually and collectively, the “Arrow SI Services”). The Arrow SI Services provided herein are for Customer’s use and not available for resale.
1. Definitions. 1.1 Purchase of Equipment: 1.1.1 “Hardware” means the new Customer premise equipment, cables, connectors, and/or upgrades ordered by Customer and provided by Arrow SI as described in the applicable Order Form submitted by Customer and subsequently accepted by Arrow SI. 1.1.2 “Software” means the new software ordered by Customer and provided by Arrow SI as described in the applicable Order Form submitted by Customer and subsequently accepted by Arrow SI. 1.1.3 “Equipment” means the Hardware and/or Software collectively. 1.1.4 “Project Price” means the price of the Equipment and/or related Arrow SI Services, as identified in the applicable Order Form. 1.2 Services: 1.2.1 “Maintenance Services” means Arrow SI’s break fix maintenance service offering identified in the applicable Order Form, including but not limited to Arrow SI Maintenance Services and Prism Assist Maintenance Services. 1.2.2 “Support Services” means other Arrow SI-provided recurring services, as defined in the applicable Order Form, including but not limited to Partnership Services, Prism Assist OneCall Services, Onsite Technical Assistance, and Microsoft Residency Services. 1.2.3 “CPE” means the pre-purchased Customer owned Customer premise equipment, cables, connectors, and/or software described in the applicable Order Form for Maintenance Services or Support Services. Software for purposes of this section shall mean embedded software, unless non-embedded software is explicitly identified in the applicable Order Form. 1.3 General: 1.3.1 “Order Form” means an order for applicable Arrow SI Services made during the term of this Agreement, on the forms, including any applicable exhibits, supplied by Arrow SI, submitted by Customer and subsequently accepted by Arrow SI. Arrow SI may accept an Order Form by beginning to perform the Arrow SI Services identified therein. 1.3.2 “Purchase Order” or “PO” means Customer's standard purchase order(s) used to order Arrow SI Services contemplated herein. If Customer advises Arrow SI in writing that a PO is required, Arrow SI will not accept an order until such time as Customer provides Arrow SI with such PO. The terms and conditions of this Agreement and the Order Form will supersede all terms and conditions set forth in the PO regardless of the date indicated on the PO. In the event such PO is not signed by an authorized signatory of Customer, Customer hereby acknowledges and agrees that (i) any PO submitted to Arrow SI by Customer may be relied upon by Arrow SI as binding and fully enforceable and (i) Customer hereby waives any right to dispute the validity of such purchase due to Customer’s failure to execute the applicable PO. Any additional or alternative terms and conditions (including payment terms) accompanying or printed on such PO shall be without effect unless such alternative conditions are expressly agreed to in writing by both parties. 1.3.3 “Premises” means the Equipment or CPE installation location as identified in the applicable Order Form. 1.3.4 “Time and Material Services” means the Arrow SI Service offered on a time and material basis.
2. Term. The term of this Agreement shall commence on the date the Order Form is fully executed and shall remain in full force and effect through the expiration of the Order Form.
3. Invoicing and Charges. 3.1 Arrow SI shall submit invoice(s) to Customer for all charges due under this Agreement in accordance with the terms of this Agreement and the applicable Order Form. Customer will pay the amount invoiced within thirty (30) days after the date of the applicable invoice. In the event a partial order of Equipment is Delivered to Customer, Arrow SI may elect to invoice Customer for the portion of the Equipment actually delivered, and then any Equipment Delivered later, additions, subtractions, taxes and other residual charges will be reconciled and invoiced via a subsequent invoice. Customer may use a credit card to pay invoices up to $50,000.00 (or such other amount as determined by Arrow SI in its sole discretion). Any and all enrollment fees, subscription charges, surcharges or other similar fees associated with electronic invoicing requested by Customer and agreed to in writing by Arrow SI will be the Customer’s responsibility. Customer may not withhold payment of any amount invoiced based on abatement, reduction, set-off, defense, counterclaim or recoupment in connection with any past, present or future claim Customer may allege against Arrow SI for charges not covered under this Agreement or against the manufacturer of any equipment or any other third party. In the event Arrow SI does not receive full payment when due, Arrow SI, in its sole discretion, may assess an additional charge against Customer in the amount of one and one-half percent (1½%) per month or the maximum rate allowed under applicable law, whichever is less, on any unpaid amounts. Amounts paid in advance or in excess of the amount invoiced will be credited to Customer’s account and, for a period of up to twelve (12) months from the date the credit is issued, such credit may be applied to outstanding or future invoices; provided, however, that if this Agreement expires or is earlier terminated and there are no outstanding amounts owed or invoiced, upon Customer’s written request, any unused portion of the advance or excess payment(s) will be refunded to Customer. In order to defray the cost of customer account administration, any credit balances or other sums owed to Customer which remain unclaimed by Customer for a period greater than twelve (12) months will become the property of Arrow SI. 3.2 All charges are exclusive of shipping, handling, and any federal, state and local sales, use, excise, utility and gross receipts taxes, other similar tax-like charges, and tax-related surcharges, which Customer agrees to pay; provided that in the event Customer provides Arrow SI with a tax exemption certificate, Arrow SI agrees to exempt Customer in accordance with law, effective on the date the exemption certificate is received by Arrow SI. Taxes based on Arrow SI’s net income shall be the sole responsibility of Arrow SI. 3.3 Failure to remit payment when due may result, upon Customer notification, in interruption or cancellation of Arrow SI Services under this Agreement. Customer shall be liable for the payment of all fees and expenses, including attorney’s fees, reasonably incurred in collecting, or attempting to collect, any charges owed hereunder. Arrow SI may refuse to ship any Equipment, provide Services or fulfill an Order Form if: (i) Customer provides false information to Arrow SI regarding Customer’s identity, creditworthiness, or its planned use of the Equipment; (ii) any outstanding balance is due for Equipment purchased under this Agreement; (iii) Arrow SI no longer offers the Equipment or provides Arrow SI Services on the CPE or other equipment on a commercial basis; or (iv) Customer is identified as a suspect party and/or a restricted party in Arrow SI’s global trade compliance system. Any deposit Customer provides to Arrow SI with an Order Form will be promptly returned to Customer if Arrow SI declines to accept the Order Form.
4. Confidential Information. Commencing upon Customer’s execution of the Order Form and continuing for a period of three (3) years from the earlier of: (a) the completion of the Order Form; or (b) the termination of this Agreement, each party shall protect as confidential, and shall not disclose to any third party, any confidential information received from the disclosing party or otherwise discovered by the receiving party during the Term, including, but not limited to, the pricing and terms of this Agreement, and any information relating to the disclosing party's technology, business affairs, and marketing or sales plans (collectively the "Confidential Information"). The parties shall use Confidential Information only for the purpose of this Agreement. The foregoing restrictions on use and disclosure of Confidential Information do not apply to information that: (c) is in the possession of the receiving party at the time of its disclosure and is not otherwise subject to obligations of confidentiality; (d) is or becomes publicly known, through no wrongful act or omission of the receiving party; (e) is received without restriction from a third party free to disclose it without obligation to the disclosing party; (f) is developed independently by the receiving party without reference to the Confidential Information, or (g) is required to be disclosed by law, regulation, or court or governmental order.
5. Limitation of Liability and Limited Warranty. 5.1 Neither party will be deemed to be negligent, at fault or liable in any respect for any delay or failure in performance resulting from acts of God, war, accidents, labor disputes, strikes, power interruptions or outages, manufacturer delays, inability to secure equipment as a result of end-of-life issues, or any other cause beyond the reasonable control of the party delayed; provided, however, that such acts or events shall not relieve Customer of its obligation to make payments for invoiced amounts. In no event shall Arrow SI be obliged to provide credits for service interruptions to Customer’s network telecommunication services. 5.2 EXCEPT AS SPECIFICALLY SET FORTH HEREIN OR IN THE LIMITED WARRANTY SECTION OF THE APPLICABLE ORDER FORM, ARROW SI MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO THE HARDWARE, SOFTWARE, MAINTENANCE SERVICES, SUPPORT SERVICES, TIME AND MATERIAL SERVICES, ANY OTHER EQUIPMENT OR RELATED PRODUCT, SOFTWARE OR DOCUMENTATION. ARROW SI SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. ARROW SI SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM OR RELATED TO ALLEGED VIOLATIONS OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS. WITHOUT LIMITING ANY OF THE FOREGOING, ARROW SI DOES NOT WARRANT THAT THE SOFTWARE WILL OPERATE ERROR FREE OR UNINTERRUPTED, OR WILL MEET CUSTOMER'S REQUIREMENTS. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THE APPLICABLE ORDER FORM, THE SOFTWARE AND DOCUMENTATION ARE PROVIDED "AS IS". NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS AGREEMENT IS INTENDED TO LIMIT OR DIMINISH THE WARRANTIES AND SUBLICENSES, IF ANY, OF THE EQUIPMENT MANUFACTURER, WHICH PASS THROUGH ARROW SI AND INURE TO THE BENEFIT OF CUSTOMER. ARROW SI MAKES NO REPRESENTATION OR WARRANTY THAT THE EQUIPMENT AND/OR CPE IS TECHNICALLY IMMUNE FROM OR PREVENTS FRAUDULENT INTRUSIONS INTO AND/OR UNAUTHORIZED USE OF THE EQUIPMENT AND/OR CPE (INCLUDING ANY INTERCONNECTION TO A LONG DISTANCE, INTERNET OR ANY OTHER COMMUNICATIONS NETWORK). 5.3 NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, TREBLE, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF USE OR LOST BUSINESS, REVENUE, PROFITS, OR GOODWILL, ARISING IN CONNECTION WITH THIS AGREEMENT, EQUIPMENT, CPE, RELATED PRODUCTS, DOCUMENTATION AND/OR THE INTENDED USE THEREOF, UNDER ANY THEORY OF TORT, CONTRACT, INDEMNITY, WARRANTY OR STRICT LIABILITY, EVEN IF THE PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. 5.4 WITHOUT LIMITATION OF THE PROVISIONS OF SECTION 5.3 ABOVE, THE TOTAL LIABILITY OF ARROW SI, TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT OF DIRECT DAMAGES PROVEN BY CUSTOMER UP TO: (A) THE TOTAL PROJECT PRICE FOR THE SPECIFIC PRODUCT OR FIXED OR HOURLY LABOR PROJECT; OR (B) SIX (6) MONTHS OF CHARGES FOR THE RECURRING SERVICE, FORMING THE BASIS OF THE CLAIM OR CAUSE OF ACTION. ARROW SI SHALL NOT BE LIABLE FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY CUSTOMER’S USE OF REASONABLE DILIGENCE. THE FOREGOING LIMITATION APPLIES TO ALL CAUSES OF ACTIONS AND CLAIMS, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, INDEMNITY, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS. CUSTOMER ACKNOWLEDGES AND ACCEPTS THE REASONABLENESS OF THE FOREGOING DISCLAIMERS AND LIMITATIONS OF LIABILITY. NO CAUSE OF ACTION UNDER ANY THEORY WHICH ACCRUED MORE THAN TWO (2) YEARS PRIOR TO THE INSTITUTION OF A LEGAL PROCEEDING ALLEGING SUCH CAUSE OF ACTION MAY BE ASSERTED BY EITHER PARTY AGAINST THE OTHER. HOWEVER, NOTHING IN THIS SECTION 5.4 SHALL LIMIT ARROW SI’S LIABILITY: (A) IN TORT FOR ITS WILLFUL OR INTENTIONAL MISCONDUCT, OR (B) FOR BODILY INJURY OR DEATH PROXIMATELY CAUSED BY ARROW SI’S NEGLIGENCE, OR (C) LOSS OR DAMAGE TO REAL PROPERTY OR TANGIBLE PERSONAL PROPERTY PROXIMATELY CAUSED BY ARROW SI’S NEGLIGENCE.
6. Termination. Either party may terminate this Agreement for Cause. As to payment of invoices, “Cause” shall mean the Customer’s failure to pay any invoice within thirty (30) days after the date of the invoice. For all other matters, Cause shall mean a breach by the other party of any material provision of this Agreement, provided that written notice of the breach has been given to the breaching party, and the breach has not been cured within thirty (30) days after delivery of such notice. Neither party may cancel or terminate an Order Form without Cause once it is submitted by Customer and subsequently accepted by Arrow SI, except as otherwise stated in the applicable Order Form.
7. Time and Material; Moves, Adds and Changes; Other Additional Charges. In the event Customer requests Arrow SI to: (i) move, add or change the configuration of Customer's Equipment and/or CPE (“MAC”); (ii) bring Customer’s Premises in compliance with the specifications identified in the applicable Order Form; (iii) respond to service requests not otherwise covered by the applicable Maintenance Services and/or Support Services; or (iv) provide engineering support provided by Arrow SI’s engineering support staff (collectively referred to as “T&M Services”), the service description for such T&M Services located at service-descriptions.arrowsi.com (or such other website as determined by Arrow SI from time to time) shall apply, unless otherwise agreed to by the parties in writing.
8. Miscellaneous. 8.1 Subcontracting. Arrow SI may subcontract any or all of the work to be performed by and under the terms and conditions of this Agreement. Arrow SI will be responsible for the work of such subcontractors and for the fulfillment of the terms and conditions of the Agreement. 8.2 Notices. 8.2.1 Any notices or other communication required to be given to the other party under this Agreement will be given in writing and either (i) delivered in person, (ii) sent by overnight courier service, properly addressed and prepaid, (iii) sent by United States Postal Service certified or registered mail, return receipt requested, properly addressed and with the correct postage; or (iv) sent by email to the email address identified below. Notices will be deemed delivered and effective (i) the day of delivery if in person, (ii) the day of delivery if sent by courier service; (iii) three (3) business days after the date of mailing; or (iv) if sent by email, upon the receipt of an acknowledgment from the recipient, provided that if such notice is sent after 5pm Central time, on a weekend or Arrow SI holiday, such notice shall be deemed to have been sent on the next business day. Addresses may be changed by giving written notice in accordance with this Section 8.2. 8.2.2 Notices to Customer are to be sent to the address set forth on the Order Form. Notices to Arrow SI are to be sent as follows: Arrow Systems Integration, Inc., 1820 Preston Park Blvd., Ste. 2800, Plano, TX 75093, Attn: Contract Administration; email@example.com; with a courtesy copy to firstname.lastname@example.org. 8.3 Applicable Law. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of Texas without regard to its choice or conflicts of law principles. 8.4 Independent Contractor Status. Arrow SI’s relationship to Customer in the performance of this Agreement is that of an independent contractor. Nothing contained in this Agreement shall be deemed or construed as creating a partnership, joint venture or fiduciary relationship between Arrow SI and Customer. 8.5 Export and Legal Compliance. 8.5.1 Customer shall comply with all laws and regulations, including but not limited to import and customs laws and regulations. 8.5.2 Customer acknowledges that certain equipment, software and technical data, which may be provided hereunder, may be subject to export and re-export controls under the U.S. Export Administration Regulations and/or similar regulations of the U.S. or any other country. Customer shall not export or re-export any such equipment, software, technical data or any direct product thereof in violation of such laws. 8.5.3 To the extent not exempt, each party shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity, or national origin. Moreover, these regulations require that each party take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability. 8.6 Survival. The rights and responsibilities of the parties hereto under the provisions, which by their nature extend beyond any such expiration or termination, shall survive expiration or earlier termination of this Agreement. 8.7 Assignment. Neither party may assign this Agreement or any of its rights hereunder without the prior written consent of the other party, which consent will not be unreasonably withheld or delayed; provided that Arrow SI may assign this Agreement, in whole or in part, or any of its rights hereunder to an affiliate or successor without the written consent of or notification to Customer. 8.8 Use of Service Marks, Trademarks and Name. Neither Arrow SI nor Customer shall: (i) use any service mark or trademark of the other party; or (ii) refer to the other party in connection with any advertising, promotion, press release or publication unless it obtains the other party’s prior written approval. Under no circumstance shall a party, as a result of this Agreement, obtain any ownership interest or other right in any patents, pending patents applications, trade secrets, copyrights, names, trademarks, tradenames, servicemarks, logos or other intellectual property rights. 8.9 Modifications; Invalidity; Waiver. Except as otherwise provided herein, modification or amendment to this Agreement shall not be valid or effective unless in writing and signed by both parties. The invalidity or non-enforceability of any particular provision of this Agreement shall not affect the other provisions, which shall be valid and enforceable to the fullest extent permitted by law. No waiver of any of the provisions of this Agreement shall be binding unless it is in writing and signed by the party granting the waiver. No waiver shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, and no waiver shall be deemed, or shall constitute, a continuing waiver. 8.10 Entire Agreement. This Agreement and Arrow SI accepted Order Forms, and/or other forms supplied by Arrow SI constitute the entire understanding between the parties concerning the subject matter hereof. No prior or contemporaneous representations, expressions, or agreements, either written or oral, or any handwritten modifications, any course of dealing, usage of trade or course of performance under this or other agreements shall alter the terms of this Agreement. 8.11 Counterparts, Signatures. This Agreement, and any subsequent documentation, may be signed in counterparts, all of which upon execution and delivery will be considered an original and together will constitute one agreement. Electronic signatures, signed facsimiles or scanned copies of this Agreement, and any subsequent documentation, will legally bind the parties to the same extent as ink signatures or original documents.