SUN MANAGEMENT INC.
STANDARD TERMS AND CONDITIONS
The following terms and conditions are incorporated in and made a part of all Quotes provided by Sun Management, Inc. (“Sun Mgt”) and these Standard Terms and Conditions (“Terms”) are incorporated in and made a part of all Quotes, Statements of Work (SOW), Master Service Agreements (MSA), and Blanket Purchase Agreements (BPA), agreed to between Sun Management and its Customers and clients (“Clients”). Sun Mgt agrees to supply, and Client agrees to purchase, deliverables and/or services subject to the following terms and conditions.
1. ORDERS AND STATEMENTS OF WORK
a. Orders. Client may purchase Offerings by submitting an Order based on a Quote by Sun Mgt. All Orders for software, services, or goods must reference a Sun Mgt provided Quote number and for services a Statement of Work (SOW) must be signed by the customer. When accepted by Sun Mgt, the “Order Effective Date” will be the date of the Order. All Orders will be governed by and incorporate these Terms. For clarity, Sun Mgt will not be obligated to provide any Services or Training, ship any Hardware, or activate any Solution Subscriptions until Client has issued a valid Order for those Offerings. Each Order shall be subject to acceptance by Sun Mgt, and Sun Mgt may accept or reject any Order, in its sole discretion. The information furnished by Client to Sun Mgt on which Sun Mgt based its Quote and/or SOW is accurate and complete in all material respects.
b. Statements of Work. Each Statement of Work (SOW) will incorporate and be governed by these Terms. The “Statement of Work Effective Date” will be the date both Client and Sun Mgt have agreed to the SOW. By executing the SOW the customer agrees to the specific services listed as tasks in the SOW. Sun Mgt will not be obligated to perform any Professional Services until a SOW describing those Professional Services has been agreed by both parties or an Order listing those Professional Services has been accepted by Sun Mgt.
c. In the event an MSA or BPA’s Terms and Conditions are modified, and agreed to by both Sun Mgt and respective Client, the MSA or BPA will become the prevailing document.
2. PAYMENT TERMS:
Payment terms are NET30 days from date of invoice. Freight charges may be constructed on the basis of standard carrier tariffs and may not reflect actual transportation costs. 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 will incur a 3% upcharge. Any charges not disputed by Client in good faith within thirty (30) days of the receipt of an invoice therefore will be deemed approved and accepted by Client. Client shall be responsible for any sales, use or similar taxes now or hereafter imposed on Client by law with regard to the Services provided pursuant to a SOW, whether or not the law requires Sun Mgt to collect such taxes from Client to remit to the taxing authority. Client shall pay all of Sun Mgt’s reasonable attorney’s fee, costs, expenses and costs of collection incurred in collecting unpaid amounts due, regardless of whether suit is filed.
3. SHIPMENT AND DELIVERY:
Delivery of product deliverables will be made FOB origin. Sun Mgt will comply with all reasonable written shipping and handling instructions received prior to shipment. Client shall examine all deliverables promptly upon receipt thereof. No later than 5 days after receipt, Client must notify Sun Mgt 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.
4. CONFIDENTIAL AND PROPRIETARY INFORMATION:
All information disclosed by one Party to the other and all documents submitted by one Party to the other, whether in written, graphic, oral, photographic, electronic or any other form, shall be deemed “Confidential Information,” which includes, without limitation, reports, materials, know-how, methods, techniques, inventions, processes, trade secrets, improvements, procedures, manuals, personnel data, financial information, computer technical expertise, and other intellectual properties and assets relating to: (i) the disclosing Party’s business operations, methods, software, or pricing; or (ii) the research, development, manufacture, characteristics, use, testing, packaging, labeling, storage, distribution, processing, or products to which the Services pertain, the Work Product (as hereinafter defined), each Party’s Intellectual Property (as hereinafter defined), personal information, any other research, compilations, specifications, data, studies, reports, technical information, papers or other documents prepared or derived from the Services and all proprietary information of a Party during the Term hereof, whether or not marked or designated as confidential, and such other information as a Party may disclose to the other during the Term. The foregoing restriction shall not apply to information (i) shown by the disclosing Party to be in the public domain at the time of receipt or that it came into the public domain thereafter through no act of the disclosing Party in breach of these Terms or of any other party in breach of any other obligation of confidentiality owing to the disclosing Party, or (ii) was contained in written record in the disclosing Party’s files prior to the date of its receipt, or (iii) was disclosed by the disclosing Party in response to a legal or administrative mandate by order of a court or administrative body, after the disclosing Party promptly notifies the other Party and provides a reasonable opportunity for other Party to oppose such order, unless such notice by is prohibited by law.
5. FORCE MAJURE.
Sun Mgt shall be excused from performance and shall not be liable for delays due to causes beyond its reasonable control (collectively, “Force Majeure Events”). Such Force Majeure Events include, without limitations, malicious acts of third parties, acts of God, service, data and broadband outages/interruptions, changes in local, state or federal laws or regulations, fires, strikes, floods, epidemics, pandemics, quarantine restrictions, terrorism, cyber-attacks, riot or other civil unrest, war, acts of violence, freight embargoes, delays or interruptions in transportation, labor unrest or strikes, or Sun Mgt’s inability to obtain labor, materials or good facilities despite reasonable commercial efforts. If a Force Majeure Event occurs, Sun Mgt shall, as soon as reasonably practicable:
(a) notify the Client of the Force Majeure Event and its impact on performance; and
(b) use reasonable efforts to resolve any issues resulting from the Force Majeure Event and perform its obligations hereunder.
Each party agrees to abide by all laws and regulations applicable to its performance of its obligations under these Terms. Neither party has made, and will not make, any direct or indirect payment, offer to pay, or authorization to pay, any money, gift, promise to give, or authorization of the giving, of anything of value to any government official, or the immediate family of any such official, for the purpose of influencing an act or decision of the government or such individual in order to assist, directly or indirectly, Client or Sun Mgt in obtaining or retaining business, or securing an improper advantage. If Client delivers the Products to its Client who may use the Products outside the United States, Client will advise its client that the Products are controlled for export by the U.S. Department of Commerce and that the Products may require authorization prior to export from the United States or re-export.
Sun Mgt and Client are independent contractors. Nothing stated in these Terms or any Order or SOW will be construed as creating the relationship of employer/employee, franchisor/franchisee, partners or principal/agent between the parties. Neither party will make any warranty, guarantee or representation, whether written or oral, on the other party’s behalf. Nothing in these Terms or any Order or SOW shall be construed as creating a joint venture, partnership, franchise, agency, employer/employee, or similar relationship between the Parties, or as authorizing either Party to act as the agent of the other.
8. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without regard to its principles of conflict of laws. Each party hereby consents to personal jurisdiction in the Commonwealth of Virginia, and to the personal jurisdiction of the courts thereof and the United States District Courts sitting therein, and agrees that any and all litigation relating to this Agreement shall be maintained in the Circuit Court for Arlington County, Virginia, or, if applicable jurisdictional requirements are satisfied, the United States District Court for the Eastern District of Virginia, in the Alexandria Division, and each party hereby waives all objections to jurisdiction or venue or forum non conveniens with respect to any litigation filed in such courts.
All notices, requests, demands, and other communications must be in writing and may be given by: (i) personal delivery; (ii) registered or certified mail, return receipt requested; or (iii) nationally recognized courier services to the party at its official corporate address. Notices must be sent to: Sun Management, Inc., 2000 14th St. N., Ste. 770, Arlington, VA 22201
Client may not assign or delegate its rights or duties under these Terms, by operation of law or otherwise, in whole or in part, without the prior written consent of Sun Mgt. Any direct or indirect change of control of Client will be deemed an assignment. Any attempted assignment by Client without that consent will be null and void without any force or effect. Sun Mgt’s affiliates may perform its obligations arising under these Terms. These Terms will be binding upon and, except as otherwise provided herein, will inure to the benefit of the parties hereto and their respective successors and assigns.
If any provision of these Terms is held to be unenforceable, the enforceability of the remaining provisions will not in any way be affected. Failure or delay of either party to exercise a right under these Terms will not operate as a waiver, nor will any single or partial exercise of a right preclude any other future exercise of that right. The parties agree to use electronic signatures and that their respective electronic signatures will be legally enforceable.
12. PUBLIC SECTOR.
When purchasing Products for resale to or in support of public sector Clients, including those in the federal, state, and local governments and education markets, Client agrees to provide all applicable public sector Client requirements to Sun Mgt at the time that Client requests a quote or places an order. The Client shall send those terms to Sun Mgt, along with the order or request for quote including the procuring or receiving government agency and if available the applicable prime contract number. Sun Mgt’s receipt of those terms does not constitute acceptance of said terms or acceptance of an order. Client understands and agrees that Sun Mgt is a “value added” reseller of “Commercial Items” as defined in Federal Acquisition Regulation (“FAR”) 2.101. Client further agrees that, for federal contracts, Client will only flow-down to Sun Mgt the clauses that are required to be inserted in a subcontract for Commercial Items, as set forth in FAR 52.244-6(c)(1) or an applicable agency FAR supplement. To the extent that Client believes that additional FAR and/or agency FAR supplemental clauses apply because they are mandatory flow-downs to which the Client has agreed to with its Federal government Client, Client shall list those clauses, and the basis for their inclusion, in the email to Sun Mgt. Client will receive only those rights in technical data provided by the Vendors. In no event will Client receive unlimited rights in data, software, or intellectual property rights provided by the Vendors or any other third party.
13. NO WAIVER.
Failure or delay of either party to exercise a right or power under these Terms will not operate as a waiver thereof, nor will any single or partial exercise of a right or power preclude any other future exercise of that right or power.
No termination of these Terms will affect any rights or obligations of either party which: (i) are vested pursuant to these Terms as of the effective date of such termination; or (ii) by their sense and context are intended to survive completion of performance or termination of these Terms, including, without limitation, Confidentiality, Warranties / Indemnities, and Limitation of Liability, all of which will survive.
15. ENTIRE AGREEMENT/AMENDMENT.
These Terms are intended to be the sole and complete statement of the obligations and rights of the parties as to all matters covered in these Terms, and supersede all previous understandings, agreements, negotiations and proposals. These Terms may be modified by Sun Mgt from time to time in its sole discretion. No modification of these Terms in effect at the time Client places its Order or agrees to an SOW will be binding unless the modification is in writing and signed by authorized representatives of Client and Sun Mgt.
16. LIMITATION OF LIABILITY.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SUN MGT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY MATTER, INCLUDING, WITHOUT LIMITATION, THE MERCHANTABILITY, SUITABILITY, ORIGINALITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR RESULTS TO BE DERIVED FROM THE USE OF, ANY GOODS, SERVICE, SOFTWARE, OR OTHER MATERIALS PROVIDED UNDER THIS AGREEMENT. SUN MGT DOES NOT REPRESENT OR WARRANT THAT THE OPERATION OF ANY SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. CLIENT AGREES THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SUN MGT IS NOT AND WILL NOT BE LIABLE FOR ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES BASED ON PERSONAL INJURY, PROPERTY DAMAGE, BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY. SUN MGT IS NOT RESPONSIBLE FOR CLIENTS BUSINESS INTERRUPTION, LOSS OF PROFITS, LOSS OF SALES, LOSS OF SAVINGS OR REVENUE, LOSS OF USE OF THE PRODUCT OR ANY ASSOCIATED EQUIPMENT; LOSS OF PRODUCTIVITY, COST OF CAPITAL, COST OF ANY SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES, CLIENT DOWNTIME, THIRD PARTY CLAIMS INCLUDING ANY PRIVACY VIOLATION, PROPERTY DAMAGE, DAMAGES DUE TO DELAYS, COSTS RESULTING FROM THE INCORPORATION OF SUN MGT’S PRODUCTS OR SERVICES INTO OTHER PRODUCTS, COSTS OF ADDRESSING DATA LOSS, COSTS OF RESPONDING TO OR REMEDIATING RANSOMWARE, SPYWARE OR THIRD-PARTY “HACKS,” DEFECT INVESTIGATIONS, BUSINESS GOODWILL, NETWORK SECURITY, DATA BREACHES , EXTRA WORK, AND PUNITIVE DAMAGES. CLIENT EXPRESSLY AGREES THAT SUN MGT’S SOLE AND MAXIMUM LIABILITY FOR DAMAGES FOR ANY CAUSE WHATSOEVER SHALL BE LIMITED TO THE LESSER OF THE AMOUNTS THAT CLIENT HAS PAID SUN MGT FOR GOODS OR WORK DURING THE NINETY (90) DAY PERIOD PRIOR TO THE OCCURRENCE OF THE EVENT(S) GIVING RISE TO SUCH DAMAGES, OR $10,000.00, PROVIDED THAT SUN MGT IS DETERMINED TO BE LIABLE FOR THE SAME. CLIENT IS PRECLUDED FROM SEEKING ANY OTHER DAMAGES OR MONETARY REMEDIES AGAINST CONSULTANT.