Consulting General Terms and Conditions
IT1 Consulting General Terms and Conditions
By visiting or using this Website in any way or by purchasing products or services from this Website, you are entering into an agreement with iT1 Source LLC (iT1) and its affiliates to be bound by the then-current version of these General Terms and Conditions, which may also be referenced as the “Website Terms and Conditions”, the “Terms and Conditions of Sale”, and the “General Terms and Conditions”. By accessing this Website you acknowledge acceptance of these Terms and Conditions and you agree to be bound by all applicable laws. iT1 has the right, in its sole discretion, to revise these General Terms and Conditions at any time without notice.
- Permits/Licenses. Client will notify IT1 of all appropriate permits and licenses required to perform this Agreement. Upon notification by Client, IT1, at Client’s expense, shall obtain only such permits and licenses, unless otherwise agreed to in a Statement of Work or Change Order.
- Resources to be Provided by Client. Client shall provide and make available to iT1 the following resources in (a) and (b) below, and such other additional necessary resources, as iT1 may from time to time reasonably request in connection with iT1’s performance of the Services:
- Qualified Client personnel or representatives who will be designated by Client to consult with iT1 on a regular basis in connection with the Services or Deliverable, and certain Client information necessary to enable iT1 to perform the Services or provide the Deliverable.
- Should it be necessary for iT1in the performance of the Services or provision of a Deliverable to temporarily remove any personal property of Client from Client’s premises or access its computers or network, it may do so only upon the express written approval of an authorized representative of Client.
- Independent Contractor. At all times in its performance of the services under this Agreement, IT1 will be acting solely as an independent contractor and IT1 and Client shall not be partners, employees or franchisees of each other. Client shall exercise no control, other than as specified herein, over the activities or operations of IT1. The parties understand and agree that the Client is in no way associated with or otherwise connected with the performance of services under this Agreement by IT1, nor the employment by IT1 of labor or the incurring by IT1 of expenses in connection herewith.
- Personnel. Personnel provided by either party to perform the Services or provide a Deliverable hereunder will at all times be considered employees or agents of the party providing such personnel and will not for any purpose be considered employees or agents of the other party. Each party shall assume full responsibility for the actions or inactions of the personnel it provides, and shall be solely responsible for the supervision, direction and control, salaries, workers’ compensation coverage, disability and other insurance, benefits, as well as all other legal obligations required by law relating to its personnel.
- Excused Performance. IT1’s obligation under this Agreement is to abide by the terms and conditions set forth in the Statement of Work. Neither party shall be liable for any failure, inability or delay to perform hereunder, other than the payment of amounts due to iT1, if such failure, inability or delay is due to circumstances beyond its reasonable control, including but not limited to, acts of God, war, strike, lockout, labor disturbance, social conflict, flood, fire, explosion or sabotage.
- Subcontracting. In order to provide services in some areas not served directly by an iT1 Consulting Service Center, iT1 may subcontract for on-site services provided to Client with subcontractors chosen at iT1’s sole discretion. Such subcontracting will not release iT1 from any of its obligations set forth in a SOW.
- Non-Solicitation. Client agrees during the term of this Agreement and for a period of 90 days after its termination, not to solicit, directly or indirectly (through individuals, subsidiaries, holding companies, partnerships, subcontractors, or any other financially related firms), nor to tender an offer for employment, nor place on their payrolls any employee who is or was, within ninety days prior to the time of such solicitation, on iT1’s or it’s subcontractor’s payroll. In the event Client hires or contracts with an iT1 employee in violation of the terms of this paragraph, the Client agrees to pay iT1 as liquidated damages, and not as penalty, an amount equal to one quarter of the employee’s annual compensation. This provision for liquidated damages shall not limit remedies against the Client for any other breach of this Agreement. Client will require all agencies and/or subcontractors working on the Client’s premises with iT1 employees, or its’ subcontractors, to execute a document indicating their agreement to the terms of this paragraph. In the event of a violation of this provision by a subcontractor or other third party on Client’s premises, the Client agrees not to use the services of such individual(s) hired by such subcontractor or third party.
- No Implied Transfer of Intellectual Property Rights. Client and iT1 shall retain ownership of, and all right, title and interest in and to, their respective intellectual property (“IP”). No licenses for any rights or interests under any patent, license, copyright, trade name, trademark or any other source of intellectual property rights are implied or granted by iT1 to Client under this Agreement. Any responsibility for licensing or other intellectual property rights in any software or hardware included in the Deliverables shall be and remain the sole responsibility of the manufacturer. Client agrees to seek all remedies associated therewith against only the manufacturer. As between the parties, and subject to the terms and conditions of this SOW and any other applicable Agreement, iT1 Consulting retains ownership of all IP Rights in all Products provided to Client that have been previously developed or owned by iT1 (“iT1 Consulting Proprietary Technology”). The Client acquires no rights to iT1 Consulting Proprietary Technology except for the licenses or ownership interests expressly granted under this Agreement or any SOW.
- Sales/Use Tax Exemptions. Client acknowledges that it holds Sales/Use Tax licenses for the states in which services under this Agreement will be performed and Client agrees to provide IT1 with any appropriate Sales/Use tax exemption license. Client shall pay or reimburse IT1 for any and all sales, use, transaction privilege, gross receipts and like taxes including without limitation penalties and interest imposed upon IT1 or upon this Agreement or upon the providing of products or services under this Agreement, and Client shall indemnify IT1 from the failure to pay or remit any such taxes. Client agrees to indemnify and hold IT1, its officers, directors, owners, employees, agents, successors and assigns harmless for, from and against any and all liabilities, damages, penalties, deficiencies, losses, costs and expenses whatsoever arising out of or resulting, in whole or in part from (a) any tax liability, including without limitation, federal, state, county or city taxes (as specified herein) and any assessment, penalties and interest associated therewith; and (b) any actions, suits, proceedings, demands, judgments, costs, legal expenses and other expenses incident to any of the foregoing.
- Confidential Information. During the term of this Agreement, the parties may receive or learn information that is confidential (“Confidential Information”) of the other party. Except as expressly specified in this Agreement, the party receiving such Confidential Information shall: (i) maintain in strictest confidence such Confidential Information; (ii) not use or disclose any such Confidential Information to any person outside that party’s business organization and only disclose or permit the use of the other party’s Confidential Information on a need to know basis; and (iii) return such Confidential Information to the Originating Party upon the expiration or termination of this Agreement, or destroy the same. Each party hereto acknowledges that all rights, title and interests in the Originating Party’s Confidential Information is and will remain the exclusive property of the Originating Party. If any portion or all of this provision is not permitted by applicable law, then such provisions will be reformed to the maximum time and/or geographic limitations permitted by applicable law. This provision will survive termination of this Agreement and will remain in full force and effect. For purposes of the Agreement, Confidential Information means any and all confidential or proprietary information, including without limitation, documentation, tools, diagnostics, computer maintenance information, software and software information, software source code, personnel, products, testing techniques, customers, pricing, terms of sales, trade secrets, pay practices, records, files, manuals, materials, supplies, vendors, computer programs, job specifications, costing, and other information relating to the operations or business of Originating Party. Confidential Information shall not include information which: (i) is or becomes part of the public domain through no act or omission of the receiving party; (ii) was in the receiving party’s lawful possession prior to the disclosure and had not been obtained by the receiving party either directly or indirectly from the Originating party; (iii) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; (iv) is independently developed by the receiving party; or (v) is disclosed by operation of law. The foregoing notwithstanding, the non-Originating Party shall be entitled to disclose Confidential Information to the extent required by law or judicial order, provided that prior written notice of such required disclosure is furnished to the Originating Party as soon as practicable in order to afford the Originating Party an opportunity to seek a protective order. For purposes of this Agreement, the term Originating Party means the party hereto from which the source information was originally obtained, regardless of the form (including without limitation written, verbal, software-based, or visual) by the non-Originating Party, and the non-Originating party shall mean all other parties to this Agreement.
- Limits of Remedy and Liability. Neither iT1 nor Client shall be liable to the other for any special, indirect, incidental, or consequential damages, including loss of profits or data, regardless of legal theory under which such damages are sought. The exclusive remedy of Client and the entire liability of IT1 in contract, tort or otherwise hereunder is the repair or exchange of any equipment or part thereof which IT1 determines to be defective or inoperative due to the fault of iT1, or at IT1’s sole and absolute discretion, monetary compensation not exceeding the contract amount. Client agrees to indemnify and hold IT1, its officers, directors, owners, employees, agents, successors and assigns harmless for, from and against any and all liabilities, damages, penalties, deficiencies, losses, costs and expenses whatsoever arising out of or resulting, in whole or in part, from any error, omission, negligence, breach of warranty, covenant condition or representation made in this Agreement by Client or in any statement, document, schedules or certification furnished pursuant hereto, or the negligent or intentional actions, or failure to act where necessary, of Client, its agents and/or its employees.
- Default. In the event a material breach of this Agreement is not cured within thirty (30) days, after written notice thereof given by the party not in default, in addition to all other rights and remedies either party may have at law or in equity, the non-defaulting party may, at its option, terminate this Agreement as of a date specified in a written notice of termination. In addition, if the material breach involves Client’s failure to make required payments under this Agreement, then IT1 may, in its sole discretion, elect to suspend services while Client remains in default rather than terminating this Agreement. In such a case, Client will remain fully responsible for all charges accruing under this Agreement.
- Waiver, Amendments, and Modifications. Any waiver, consent or approval whatsoever by any party of any breach or default under this Agreement, or any waiver on the part of any such party of any provisions or conditions of this Agreement, must be in writing and is effective only to the extent specifically set forth in such writing and with respect to the party against whom it is being enforced. No waiver of any term, provision or condition of this Agreement, in any one or more instances, will be deemed a waiver of any other term, provision or condition of this Agreement.
- Termination. This Agreement may be terminated by iT1 for any reason, or no reason, by giving Client 30 days’ notice. In addition, this Agreement may be terminated at any time by either party, by giving 30 day written notice of termination or upon the occurrence of any one of the following events:
- Any default by the other party under this Agreement which is not cured within the cure period, as specified in Section 6.13.
- The cessation of business activities by either party or if the other party is adjudicated as bankrupt or makes a general assignment for the benefit of creditors under any insolvency act, or if a permanent receiver or trustee in bankruptcy is appointed for the property of the party and such adjudication, assignment or appointment is not vacated within sixty (60) days.
- If there is a substantial change in the legal or effective control of either party; a merger, consolidation or reorganization by either party in which either party is not the surviving entity; or the sale, lease or conveyance of substantially all of either party’s property, assets or business, unless the rights and responsibilities of the other party under this Agreement are assigned pursuant to Section 6.19 below.
- Survival of Rights. Neither the expiration nor termination of this Agreement shall release either party from the obligation to pay any amount which may then be owing to the other party or from the obligation to perform any other duty or discharge any other liability prior to the effective date of such expiration or termination.
- Dispute Resolution and Choice of Law. This Agreement will in all respects be governed by, and construed in accordance with, the laws of the State of Arizona, including all matters of construction, validity and performance, without respect to conflicts of law. Client and iT1 shall attempt to settle any claim or controversy arising out of the Agreement through consultation and negotiation. If the parties are unable to settle their dispute within ten (10) days, then either party may thereafter initiate an action to interpret this Agreement or enforce its rights thereunder. All such actions (whether by litigation or arbitration) will be filed and prosecuted in Maricopa County, Arizona, and Client expressly consents to personal jurisdiction and venue in the state and federal courts located in Maricopa County, Arizona. In the event that an action is filed involving this Agreement, the unsuccessful party shall be liable for all reasonable attorneys’ fees and other costs and expenses incurred by the other party.
- Warranty Exclusion IT1 MAKES NO REPRESENTATION OF IMPLIED OR EXPRESS WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AS APPLICABLE HEREUNDER. ANY ISSUES RELATED TO WARRANTIES OR LICENSING SHALL BE AND REMAIN THE SOLE RESPONSIBILITY OF THE MANUFACTURER.
- Notices. All notices given under any of the provisions of this Agreement shall be deemed to have been given by the notifying party if mailed by first class mail to the receiving party addressed to its or his mailing address set forth above, or such other address as the parties may designate in writing. Additionally, notices sent by any other means (i.e. fax, overnight mail, etc.) may be acceptable subject to written confirmation of both the transmission and receipt of the notice. If notice by a party is given by e-mail, such notice shall be deemed to have been properly given if sent by registered email to the signatory of this Agreement or such other person as has been designated in writing by a party to receive notices.
- Miscellaneous. Client may assign this Agreement in whole or in part only with the prior written consent of iT1, which consent will not be unreasonably withheld. iT1 may assign this agreement in whole or in part or all or part of the payments hereunder to the extent that iT1 obligations to the customer are not affected. The provisions of this Agreement are severable, and the invalidity, in whole or in part, of any provision of this Agreement will not affect the validity or enforceability of any other of its provisions. This Agreement and all documents referenced herein is intended by the parties to constitute the entire agreement and understanding between the parties with regard to the subject matter hereof and is a complete and exclusive statement of the terms and conditions thereof, and will supersede any and all prior oral and written correspondence, conversations, negotiations, agreements and understandings relating to the same subject matter, other than as expressly provided herein.