1. PLEASE READ THESE TERMS AND CONDITIONS VERY CAREFULLY. The customer (“Customer”) and ePlus Technology, inc. (“ePlus”) hereby agree to the following terms and conditions, which will be incorporated by reference into any contract for provision of product and/or service by ePlus. These Terms and Conditions (these “Terms”) represent the complete and final agreement between the customer and ePlus for the matters set forth herein. By placing an order with ePlus or an ePlus affiliate for products or services Customer agrees to be bound by and accepts these Terms unless Customer and ePlus have entered into a separate written agreement signed by a senior corporate officer of ePlus (a “Written Contract”), in which case the Written Contract will govern. Customer may issue an ordering document or purchase order for administrative purposes only. Additional or different terms contained in any such purchase order will be null and void. Terms contained in purchase orders, offers to buy, terms and conditions, and the like shall have no effect; any additional or different terms or conditions in any form delivered by Customer are hereby deemed to be material alternations and notice of objection to them and rejection of them is hereby given. In no event shall ePlus’ performance under a purchase order, statement of work or similar instrument be deemed to constitute acceptance of any terms and conditions other than as set forth herein. ANY DESCRIPTION OF THE TYPES OF PRODUCTS OR SERVICES AND RESULT THEREOF POSTED ON THE EPLUS WEB SITE DO NOT CONSTITUTE PART OF THE AGREEMENT BETWEEN EPLUS AND CUSTOMER.
2.Orders. Orders are not binding until accepted by ePlus. As order delivery times are estimates only, ePlus is not liable for any delays that are beyond its control. Approvals for order cancellations, suspensions or alterations are subject to manufacturer policies and guidelines and ePlus’ ability, pursuant to those policies and guidelines, to cancel/suspend orders to its suppliers. Prior to the shipment, except for products that have been irreversibly configured or customized, customer may cancel, suspend or alter all or a portion of an order. An alteration includes: (i) changing a location for delivery, (ii) modifying the quantity of the product to be delivered, (iii) changing the requested delivery date, or (iv) correcting any typographical or clerical errors.
3.Pricing. Prices for products and services shall be as identified in an order accepted by ePlus. ePlus strives to provide its customers with pricing that is competitive based on the circumstances at the time that an order is placed. However pricing is subject to variation based on manufacturer discounts and price list changes, order volume, specific services and personnel provided, the circumstances and needs of each customer, and other factors. EPLUS CANNOT AND DOES NOT MAKE GUARANTEES REGARDING THE PRICING OR RELATED TERMS APPLICABLE TO AN ORDER. NO COMPARATIVE PRICE GUARANTY, PRICE WARRANTY, “MOST FAVORED CUSTOMER” PROVISION OR SIMILAR PRICING COMMITMENT SHALL APPLY TO ORDERS ACCEPTED BY EPLUS, AND ANY SUCH TERMS THAT MAY BE SET FORTH IN A PURCHASE ORDER OR SIMILAR INSTRUMENT ARE HEREBY REJECTED.
4.Title, Ownership and Inspection. Title to product is retained by ePlus until the product is paid for in full by the customer. Subject to full and final payment and except for any confidential or proprietary materials in which ePlus or its supplier(s) has a pre-existing intellectual property interest (“Existing Materials”), any and all deliverables provided as a result of the performance of services (the “Work Product”), shall be deemed to be a “work for hire”. To the extent that Existing Materials are incorporated in Work Products, ePlus grants to customer and its Affiliates a royalty-free, irrevocable, worldwide, non-exclusive, perpetual right to use, modify and prepare derivative works of such Existing Materials and to use and display such Existing Materials, with full rights to authorize others to do the same but subject to any supplier restrictions and only to the extent required to utilize the Work Product in accordance with the ownership rights granted in this Agreement. Loss or damage that occurs during shipping by a carrier selected by ePlus shall be ePlus’ sole responsibility; loss or damage that occurs during shipping by a carrier selected by customer shall be customer’s sole responsibility. If damaged products are accepted from the carrier, such damage should be noted on the carrier delivery record. Customer should save the product and the original box/packaging and notify ePlus to arrange for a carrier inspection and a pickup of damaged products. Please notify your account executive of any damaged shipping containers within the first two (2) days of receipt. Two (2) days is considered a reasonable period of time to conduct the visual inspection of the shipping container, and failure to provide such notice will constitute acceptance in full. Customer also shall notify ePlus of any order shortages or any concealed damages within seven (7) business days. These notification timeframes are necessary so that ePlus may assist customer on a timely basis in obtaining the benefit of any manufacturer warranties as well as filing any shipping claims with the carrier, as applicable.
5.Payment. Unless otherwise agreed to in a Written Contract, payment terms are net 30 from date of invoice. Customer shall bear applicable federal, state, municipal and other government taxes (such as sales, use and similar taxes). Unless specified, prices do not include tax, shipping or handling. Tax exemption certificates must be supplied prior to shipment if they are to be honored. Late payment charges of 1.5% per month, or the maximum amount allowed by law (whichever is less), will apply to any amount not received by the due date. In the event ePlus must resort to collection, customer will be responsible for all collections costs, including legal fees. If the "Bill To" party is different from the "Ship To" party, the "Ship To" party is responsible for all payments and late charges if the "Bill To" party fails to make payment. In any case where Customer receives products or services but the purchase authorization is provided from a third party to be billed pursuant to a lease or financing arrangement, payment of the invoice will be Customer’s responsibility in the event such third party fails to make timely payment. . Any communications concerning disputed debts, including any instrument tendered as full satisfaction of the disputed debt, are to be sent to the Office of General Counsel, ePlus Technology, inc., 13595 Dulles Technology Drive, Herndon, VA 20171.
6.Product Returns. Approvals for unused, unopened returns are subject to manufacturer return policies and guidelines and ePlus’ ability to return product to its vendors. Such products must be complete and in manufacturer’s original packaging, with no visible damage. ePlus will not be required to accept any return of sold products without an approved return merchandise authorization (“RMA”) number, which may be obtained by contacting the customer’s account executive. A RMA is valid for ten (10) days from the ePlus issuance date, unless other arrangements are made between the parties at the time of ePlus’ RMA approval. The ePlus RMA number is to be clearly noted on a shipping label affixed to the outer shipping box and any items received into an ePlus return facility without an RMA number or after the elapsed time period will be sent back to the customer at the customer’s expense, unless otherwise agreed to under a Written Contract. Any writing, markings or stickers, except shipping label, on the box will void any authorized return. Except in the event of an ePlus or vendor error, customer will be responsible for shipping charges associated with any products being shipped for return, exchange or replacement. Products exchanged or replaced will be shipped back to customer, at customer’s expense. Returns must be made via an authorized carrier that allows the package to be tracked, and customer must insure all returned products. Products not eligible for return include, but are not limited to, items that were at end-of-life cycle at the time of order, used or opened software, used consumables, custom configured and built to order products, and products not purchased through ePlus. At ePlus’ discretion, restocking fees may be charged for items which do not qualify for return under this policy. Some manufacturers require that defective or Dead on Arrival (DOA) products be returned directly to them, or they may limit the timeframe in which products can be returned; therefore, products that are inoperable at initial use may be eligible for DOA return to or replacement by the manufacturer, subject to the manufacturer’s product defective/DOA return policies. If the product is not returnable under manufacturer guidelines, ePlus will make every attempt to repair or replace the product through the manufacturer’s warranty. Customer should contact its ePlus account executive for further details on the manufacturer warranties. ePlus technicians test products returned as DOA or defective. Products found not to be defective may be subject to return at the customer’s expense. In any event, ePlus will work with its vendors to facilitate returns for the customer.
7.Services. Services provided by ePlus or its subcontractor shall be pursuant to an applicable statement of work executed by the ePlus and Customer. All services shall be deemed accepted upon completion or within five (5) business days of delivery to Customer of a milestone or completion certificate as may be provided in an applicable statement of work. Certain services including, but not limited to maintenance, support, extended manufacturer warranty service, and other services provided under a manufacturer’s SKU identified in a purchase order, are sold by ePlus as a reseller without a statement of work. ("Third Party Services"). For such Third Party Services, the third party service provider shall be solely responsible for providing the services to the Customer, and Customer will look exclusively to such third party for any loss, claims, liability or damages arising from or related to the provision of such Third Party Services. Customer hereby releases ePlus and each of its affiliates from any and all claims arising from or relating to the purchase, sale or performance of any such Third Parties Services.
8.Warranties. In the event ePlus performs services pursuant to a statement of work, ePlus represents and warrants that such services will be done in a skillful and workmanlike manner according to those industry standards generally prevailing among consultants performing similar services under similar circumstances. Customer shall notify ePlus of any noncompliance with the foregoing warranty prior to completion of the services or within five (5) business days thereafter. ePlus or its supplier will pass through to customer any and all applicable hardware or software product warranties of the manufacturer. ePlus does not provide any warranties on products which it does not manufacture, whether with respect to its design, performance, specifications, functionality or compatibility with customer’s system. No statement or affirmation by ePlus or its agents, by action or word, shall constitute a warranty and Customer agrees torely solely on the manufacturers’ warranties. ePlus will not be liable for any damage, loss, cost or expense for breach of warranty. As ePlus has no control over the manufacturing of the products sold herein, it cannot and does not indemnify customer for claims by third parties that products infringe any patent, copyright, trademark or trade secret; however, ePlus will pass through any such indemnities it receives from the manufacturer or supplier. EPLUS HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, RELATED TO PRODUCTS SOLD OR SERVICES PROVIDED BY THIRD PARTIES INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THIS DISCLAIMER, HOWEVER, DOES NOT AFFECT THE TERMS OF THE MANUFACTURER’S WARRANTY, IF ANY.
9.End User Agreements. Customer agrees to abide by all product licensing provisions or end user agreements imposed by the manufacturer or publisher.
10.LIMITATION OF LIABILITY. Customer expressly waives any claim that it may have against ePlus or any of its affiliates in connection with product liability or alleged infringement of any patent, copyright, trade secret or other intellectual property rights (each a “Claim”) with respect to any Product and also waives any right to indemnification from ePlus or its affiliates against any such Claim made against Customer by a third party. EPLUS’ LIABILITY TO CUSTOMER, IF ANY, WILL BE LIMITED TO DIRECT DAMAGES, WHICH WILL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER TO EPLUS FOR THE SPECIFIC PRODUCT(S) OR SERVICE(S) DIRECTLY CAUSING THE DAMAGES GIVING RISE TO A PROVEN CLAIM, AS ESTABLISHED BY A FINAL JUDGMENT. IN NO EVENT SHALL EPLUS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THESE TERMS AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOST DATA OR FOR ANY DAMAGES OR SUMS PAID BY CUSTOMER TO THIRD PARTIES, EVEN IF EPLUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY WHETHER ANY CLAIM IS BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY OR CONTRIBUTION, THE FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE.
11.Credit References; Purchase Money Security Interest. This authorizes ePlus to investigate all credit references and any other matters pertaining to the customer's financial responsibility. Customer grants ePlus a purchase money security interest in all equipment ePlus provides to customer hereunder, as permitted by law. Upon payment in full for any item of equipment and any interest applicable to it, ePlus’ security interest in that item of equipment shall be released automatically. Customer agrees that upon acceptance of any order ePlus may file financing statements in such places as are necessary to perfect its security interest. Where customer indicates how to apply payment, each payment for each item of equipment shall be applied to that item of equipment only. If customer does not indicate how to apply payment, ePlus reserves the right to apply payments to customer’s balance at its discretion.
12.Confidentiality. “Confidential Information” means these terms and conditions and any related documents delivered hereunder, together with all data, reports, compilations, pricing and evaluation of all or any portion of the transactions contemplated hereunder, except for information that (1) becomes publicly available other than through a breach of these terms and conditions; (2) is lawfully received by the receiving party from a third party without breach of these terms and conditions, provided that the receiving party is not obligated under separate agreement to hold such information in confidence; or (3) is independently developed by or for the receiving party without access to Confidential Information. The parties agree, for a period of three (3) years after the expiration or termination of these terms and conditions, to protect each other’s Confidential Information from unauthorized disclosure to any third party. Confidential Information must be in writing or other tangible form, marked with an appropriate legend. If not in written or tangible form, it must be identified as confidential at the time of disclosure and summarized and delivered to the other party within a reasonable time following disclosure.
13.Export Compliance. Customer agrees to comply with all export and import laws and restrictions and regulations of any United States or foreign agency or authority, and not to export or re-export the product(s) in violation of any such restrictions, laws or regulations, or without all necessary approvals. In addition to the other legal and regulatory compliance requirements, and not in limitation thereof, customer and ePlus represent and warrant that they are knowledgeable about and agree to comply with the economic and trade sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury, including all implementing Executive Orders and regulations, and will maintain compliance with such laws, Executive Orders and regulations
14.Modifications; Governing Law and Dispute Resolution. These Terms are subject to change without prior notice, except that the version of these Terms posted at the time Customer places an order will govern the order in question, unless otherwise agreed in writing by ePlus and Customer. No course of prior dealings between the parties and no usage of trade will be relevant to determine the meaning of these terms and conditions or any purchase order or invoice, or any document in electronic or written form that is signed and delivered by each of the parties for the performance of services. These terms and conditions shall be governed by the laws of the Commonwealth of Virginia and any dispute shall be decided in its state or federal courts unless ePlus, at its discretion, elects to file suit where the customer (1) has an office (2) has property (3) where the products were delivered or (4) where the products are located. Customer agrees to submit to jurisdiction of the state and federal courts in each of the above locations.
15.The following terms and conditions only apply to transactions with payments due beyond net 90 day payment terms.
(a) The obligation to make the payments is non-cancelable and may not be terminated early. Customer agrees that its payment obligations to ePlus are absolute and unconditional in all events
(b) Customer representations and warranties. Customer represents and warrants for the benefit of ePlus and its assigns that, as of the time of issuance of a Customer purchase order: (i) Customer is a corporation in good standing under the laws of the state of its incorporation; (ii) has adequate corporate power to enter into and perform the terms; and (iii) the Customer purchase order has been duly authorized, executed and delivered by Customer and constitutes a valid, legal and binding obligation.
(c) Payments. Payments and other charges are payable as set forth in the Customer purchase order or in such other document as executed between ePlus and the Customer. If Customer pays late, Customer shall also pay a late fee of 5% of the amount that is late per month (or the maximum rate allowable by law, if less) until the date paid.
(d) Security Interest. Customer hereby grants a security interest in the products and all proceeds thereof and authorizes ePlus to record (and amend, if appropriate) a UCC financing statement to protect ePlus’ interests.
(e) Assignment. Customer shall not sell, transfer, assign or sublease, these Terms or Customer’s obligation to make payments. ePlus may, without notice to Customer, assign its rights to receive payments hereunder to a third party assignee (the “Assignee”), in which case the Assignee will have all of ePlus’ rights but none of its obligations. Customer agrees not to assert against the Assignee any claim, defense or offset Customer may have against ePlus and Customer acknowledges that the Assignee makes no representations or warranties with respect to the products or services and the Assignee disclaims any and all warranties, express or implied, including without limitation, the implied warranties of merchantability and fitness for a particular purpose.
(f) Taxes. Customer is responsible for all taxes and governmental charges relating to the products, services or these Terms (collectively, with such taxes, “Governmental Charges”). If ePlus pays any Governmental Charges, Customer agrees to reimburse ePlus or its Assignee upon demand.
(g) Default and Remedies. Customer will be in default if, with respect to these Terms, (i) Customer fails to pay any sum within 5 days of the due date, (ii) fails to perform or observe any other obligation, (iii) any representation or warranty made by Customer to ePlus in connection with these Terms shall be untrue in any material respect, or (iv) a change of control of Customer shall occur. If Customer defaults, Customer agrees ePlus may do any or all of the following: (A) cancel these Terms, (B) require Customer to stop using and return to ePlus or its Assignee the products or services, (C) require Customer to pay to ePlus on demand an amount equal to the sum of (i) all payments and other amounts then due and past due, (ii) all remaining payments for the remaining term discounted at a rate of 3% per annum, (iii) interest at the rate of 1.5% per month on the amounts specified in clauses “i” and “ii” above until the date paid, and (iv) all other amounts that may later become due hereunder, and/or (E) exercise any other remedy available to ePlus or its Assignee under law. Customer also agrees to reimburse ePlus or its Assignee on demand for all reasonable expenses of enforcement (including, without limitation, reasonable attorneys’ fees).
1. SCOPE. The party furnishing the products or services under this order (the “Seller”) and ePlus Technology, inc. or its affiliate to which such products or services are furnished (“Buyer”) hereby agree to these terms and conditions, which will be incorporated by reference into any purchase order (“PO”) or contract for acquisition of product and/or service (collectively the “Product”) by Buyer. Seller hereby appoints Buyer as a non-exclusive reseller of its products and/or services, and grants to Buyer and its affiliates the right to resell the products and services to end-user(s).
2. ACKNOWLEDGEMENT OF DELIVERY. Seller shall promptly process POs and forward complete information with respect to delivery and/or installation of Product to Buyer. If such is not received by Buyer within 30 days from the date of the PO, Buyer shall have the right to cancel the PO. No liability hereunder shall result to either party from delay in performance, non-performance, or non-acceptance of delivery caused by circumstances beyond the control of the party affected including, without limitation, acts of God, fire, flood, war, government regulations, directions or requests, accidents or labor strikes or interruption.
3. PRICE, PAYMENT, and TAXES. The total price of Product, including, without limitation, such items as transportation charges, taxes to be paid by Buyer and all other costs applicable in such transaction shall be as set forth in the PO. The prices granted by Seller to Buyer are comparable to or better than the prices offered by Seller to similar Buyers. If Seller shall enter into an arrangement with any other buyers that provides lower discounts or prices, Seller shall immediately offer the same to Buyer and agrees to enter into any requisite contract, amendment or other document to effectuate the same. Seller acknowledges that it shall bear all risk of loss with respect to such Product until such acceptance. Payment shall be made upon invoicing Buyer 45 days after Buyer’s receipt of such notice of acceptance. Unless otherwise contracted in a separate active agreement, Buyer will receive a two (2) percent discount if the invoice is paid within fifteen (15) days of receipt of invoice. Buyer may also elect to remit the invoice by credit card. Seller agrees to report and pay to the appropriate taxing authority any and all taxes (including penalty and interest. if any) assessed against the manufacture and/or sale of Product
4. SHIPMENT, DELIVERY, INSPECTION. Time is of the essence. Seller shall immediately notify Buyer in the event that Seller’s timely performance under the PO is or is likely to be delayed. Such notice shall not constitute a waiver by Buyer of any of Seller’s obligations hereunder. All Products shall be delivered DDP (Incoterms 2023) to the ship-to address set forth on Buyer’s PO without charge to Buyer for crating or storage; otherwise, Seller will drop ship Product to the address specified on Buyer’s PO. End user license agreements, if applicable, shall be shipped by Seller with the Product and Buyer will not alter or remove such end user license agreement. All customs, duties, costs, taxes, insurance premiums, and other expenses relating to such transportation and delivery shall be paid solely by Seller. Buyer may reject all or part of any shipment of non-conforming products within 60 days of receipt and may return such rejected products to Seller for, at Buyer’s sole option, replacement, refund, or credit. Payment to Seller for Product prior to timely rejection shall not be deemed as acceptance by Buyer and shall be subject to adjustment for errors, shortages, defects, or other failure of Seller. Buyer may cancel PO at any time prior to shipment. No Product(s) received by the end user shall be deemed accepted until the end user has had a reasonable opportunity to inspect the Product, which shall be no less than 30 days. Buyer may revoke acceptance if (1) acceptance was reasonably induced by the difficulty of discovering the non-conformity or by Seller’s assurances of conformity or cure and (2) acceptance is timely revoked.
5. RETURNS. When a nonconforming Product is discovered by Buyer’s end-user, Buyer shall have 30 days from notice by end-user to, at Buyer’s discretion, obtain a replacement, refund or credit. If the Seller fails, neglects or refuses to provide a replacement where so elected, the Buyer or end user shall then have the right to procure a corresponding quantity of such Product(s), and deduct from any monies due or that may thereafter become due to the Seller, the difference between the price stated in the PO and the actual cost thereof to the end user.
6. WARRANTY. Seller warrants and guarantees that the Product sold to Buyer hereunder shall be fit for the purpose and use intended and shall operate and function satisfactorily and reliably and free from defects and known susceptibility to security breach. Seller further warrants that title to the Product is free and clear of all liens and encumbrances. Seller further warrants and agrees that Product shall in all respects comply with any warranties and representations as to kind, quality, and description made by Seller. Seller agrees to provide and maintain adequate service on Product sold hereunder in accordance with Seller’s published terms or any representations made by Seller. If any Product is found to be defective in material or workmanship, or otherwise not in conformity with Seller’s published specifications, warranties and/or representations, Seller agrees on receipt of such notice from Buyer to promptly cure such defect or non-conformity. Should Seller fail promptly to cure such defect or non-conformity, Buyer shall have the right in addition to any other rights which it may have hereunder or by law, to reject or to revoke acceptance and return such Product at Seller’s expense. Seller shall bear all risks after notice of rejection or revocation. If Buyer is named or joined in a lawsuit by any third party alleging any claims relating to the Product, Seller agrees to defend, protect and save Buyer harmless from all damages, claims and demands resulting therefrom, and covenants that Seller shall, upon request, defend or assist in the defense, at Seller’s expense, of any such lawsuit. Seller waives any security interest it may have in the Product.
7. INDEMNITY. Seller guarantees that the Product sold hereunder, and the sale to Buyer shall not infringe any U.S. or foreign patents or copyrights, and Seller agrees to defend, protect and save harmless Buyer against all suits and from all damages, claims and demands resulting from such alleged infringements, and covenants that Seller shall, upon request, defend or assist in the defense, at Sellers expense, of any such suit. Seller agrees to indemnify Buyer against all loss on account of claims of injury to persons (including death) or damage to property which may result in any way from malfunction of Product or otherwise from any act or omission of Seller, its agents or employees. Seller represents and warrants that there are not claims or liabilities for royalties, license of any other encumbrances on the products supplied hereunder, and Seller shall indemnify, defend and hold Buyer and its affiliates, officers, directors, agents, employees, successors and customers harmless against any such claims and liabilities. Seller shall indemnify, hold harmless, and defend Buyer against any alleged or actual defect in any products; all loss liability and damages arising from acts or omissions of Seller’s agents, employees or subcontractors; and all claims of infringement of any patent, trademark, copyright or misappropriation of any trade secret or infringement of any other intellectual property right. Seller shall maintain such public liability, property damage and employer’s liability and compensation insurance as will protect Seller and Buyer from said risks and from any claims under any applicable Worker’s Compensation or Occupational Disease Acts.
8. BUYER’S LIABILITY TO SELLER IS LIMITED TO DIRECT DAMAGES, WHICH WILL NOT EXCEED THE AMOUNT PAID BY BUYER TO SELLER FOR THE PRODUCT. IN NO EVENT SHALL BUYER BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THESE TERMS AND CONDITIONS OR ANY PO, INCLUDING BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOST DATA OR FOR ANY DAMAGES OR SUMS PAID BY SELLER TO THIRD PARTIES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT; AND SHALL APPLY WHETHER BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY OR CONTRIBUTION, FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE.
9. CONFIDENTIALITY. “Confidential Information” means these terms and conditions and any related documents delivered hereunder, together with all data, reports, compilations, pricing and evaluation of all or any portion of the transactions contemplated hereunder, except for information that (1) becomes publicly available other than through a breach of these terms and conditions; (2) is lawfully received by the receiving party from a third party without breach of these terms and conditions, provided that the receiving party is not obligated under separate agreement to hold such information in confidence; or (3) is independently developed by or for the receiving party without access to Confidential Information. The parties agree, for a period of three (3) years after the expiration or termination of these terms and conditions, to protect each other’s Confidential Information from unauthorized disclosure to any third party. Confidential Information must be in writing or other tangible form, marked with an appropriate legend. If not in written or tangible form, it must be identified as confidential at the time of disclosure and summarized and delivered to the other party within a reasonable time following disclosure.
10. COMPLIANCE WITH LAWS. Seller agrees to comply with all export and import laws and restrictions and regulations of any United States or foreign agency or authority, and not to export or re-export the Product in violation of any such restrictions, laws or regulations, or without all necessary approvals. In addition to the other legal and regulatory compliance requirements, and not in limitation thereof, Seller represents and warrants that it is knowledgeable about and agree to comply with the economic and trade sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury, including all implementing Executive Orders and regulations, and will maintain compliance with such laws, Executive Orders and regulations. Seller agrees and warrants that all Product sold hereunder shall be produced and sold in full compliance with all applicable Federal, State, and local laws and regulations including, without in any way limiting the generality of the foregoing, the requirements of the Federal Fair Labor Standards Act of 1938, as amended.
11. PROCUREMENT INTEGRITY. Seller shall not furnish Counterfeit Goods to Buyer.
a. Counterfeit Goods are defined as goods or separately-identifiable items or components of goods (“Goods”) that: (i) are an unauthorized copy or substitute of an Original Equipment Manufacturer or Original Component Manufacturer (collectively, “OEM”) item; (ii) are not traceable to an OEM sufficient to ensure authenticity in OEM design and manufacture; (iii) do not contain proper external or internal materials or components required by the OEM or are not constructed in accordance with OEM design; (iv) have been re-worked, re-marked, relabeled, repaired, refurbished, or otherwise modified from OEM design but not disclosed as such or are represented as OEM authentic or new; or (v) have not passed successfully all OEM required testing, verification, screening, and quality control processes. Notwithstanding the foregoing, Goods or items that contain modifications, repairs, rework, or re-marking as a result of Seller’s or its subcontractor’s design authority, material review procedures, quality control processes or parts management plans, and that have not been misrepresented or mismarked, shall not be deemed Counterfeit Goods. Counterfeit Goods shall be deemed nonconforming to this Contract.
12. PUBLIC SECTOR CERTIFICATION. Seller certifies, for itself and all its subcontractors, that as of the date of each PO, Seller is not under suspension or debarment by any state or any governmental entity, instrumentality, or authority and, if Seller cannot so certify, then it agrees to submit, a written explanation of why such certification cannot be made. By acceptance of a PO hereunder, Seller accepts all mandatory government flowdown clauses as may be applicable under Buyer’s prime contract with an end user for the ordered Product(s).
13. CODE OF CONDUCT AND APPLICABLE LAW COMPLIANCE. Seller shall comply with all applicable United States federal, state, and local laws, rules regulations and orders in effect on the date of any applicable order, and with Buyer’s Business Partner Code of Conduct and will promptly report to Buyer any suspected violation of the Code by any party. The Code, and how to report violations, can be found on Buyer’s website, www.eplus.com. Seller agrees to indemnify and hold Buyer harmless against any loss or liability due to Seller’s violation or non-compliance with such laws and regulations and the Code of Conduct.
14. EQUAL EMPLOYMENT OPPORTUNITY. During the term of this PO, Seller will not discriminate against any employee or applicant for employment because of race, color, appearance, religion, sex, national origin or any other classification protected by applicable law. Seller will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin.
TERMINATION. If Seller ceases to conduct its operations in the normal course of business (including inability to meet its obligations as they mature) or if any proceeding under the bankruptcy or insolvency laws is brought by or against Seller, or a receiver for Seller is appointed or applied for, or an assignment for the benefit of creditors is made by Seller, Buyer may terminate any PO by written notice to Seller, without liability except for Product previously delivered and/or installed (as applicable) and accepted by Buyer.
16. RECORDS. Seller shall, at no cost to Buyer, maintain records sufficient to substantiate the accuracy of invoices, deliverables and Services performed hereunder (collectively "Records"). Upon prior written notice, Seller will provide to Buyer, its agent, or authorized representative access to such Records, so that it may verify compliance of Seller in performance under this Agreement, or to enable Buyer to meet applicable prime contract, legal or regulatory requirements. Seller shall, at no cost to Buyer, maintain and make available to Buyer all Records for a period of at least three (3) years after the date of final payment by Buyer to Seller or longer if required by law. Buyer shall have the right to audit any and all records of Seller relating to this Agreement and any PO hereunder. Seller agrees that such records will be available for audit by Buyer or its agents during normal business hours upon reasonable notice. If discrepancies from these terms and conditions are found, Seller shall reimburse Buyer for (i) discrepancies and (ii) audit costs if discrepancies are greater than five (5) percent of the PO amount. Reimbursements will be made within thirty (30) days after completion of the audit.
17. COMPLETE AGREEMENT. These terms and conditions incorporate all representations, promises and statements made in connection with this purchase of Product and the negotiation thereof and no such representation, promise or statement not contained herein shall be binding on the parties. These terms and conditions may not be varied or altered nor the provisions waived, except by agreement in writing executed by duly authorized agents of both parties. Any conditions of sale appearing on Seller’s order acknowledgement or invoice which may conflict with the conditions of these terms and conditions shall be deemed omitted, modified or altered to conform hereto, unless such conditions, modifications or alternations are agreed to in writing by both parties as aforesaid. Conditions of this PO and/or terms and conditions shall also be binding upon and inure to the benefit of Seller’s and Buyer’s respective executors, successors, legal representatives and assigns.
18. GOVERNING LAW. These terms and conditions shall be governed by the laws of the Commonwealth of Virginia and any dispute shall be decided in its state or federal courts unless Buyer, at its discretion, elects to file suit (1) where the Seller has an office or property (2) where the Products were delivered or (3) where the Products are located. Seller agrees to submit to jurisdiction and venue of the state and federal courts in each of the above locations.
IGXGlobal UK Limited is a company registered in England and Wales, company Global number 05551268 and Capital number 09964867, with a registered office at Camburgh House, 27 New Dover Road, Canterbury, Kent, CT1 3DN and with offices at 131 Finsbury Pavement, London EC2A 1NT (“IGX”).
Whenever your company or organisation (“Customer”) places an order that is accepted by IGX, the Parties agree that such order shall be governed by either (i) the applicable written agreement signed by authorized representatives of each Party, or (ii) if there is no such agreement, then these Terms and Conditions for Purchasing Products and Services (this “Agreement”).
2. PURCHASE OF PRODUCTS.
3. PURCHASE OF SERVICES.
4. PRICING AND PAYMENT.PRICING AND PAYMENT.
(i) Fees for out-of-pocket expenses will be invoiced to Customer on a monthly basis.
(ii) Itemization is required for all expenses.
(iii) Time for travel under 50 miles will not be billable.
(iv) The following guidelines shall apply for out-of-pocket expenses:
• Lodging: For less than one month, a single hotel room at prevailing commercial rates within a reasonable distance from job location.
• Meals: Actual cost not to exceed forty Pounds Sterling (£40) per day.
• Air Travel: Actual cost for commercial coach or economy class.
• Ground Transportation: Commercial shuttle services or hotel transportation to and from the airport should be used whenever practicable. Taxi service will only be used if such transportation is not available or in emergencies.
• Auto Rental: Actual cost for commercial standard size automobile, including operating expenses.
5. CONFIDENTIALITY OBLIGATIONS.
(i) is or becomes publicly available other than through a breach of this Agreement; or
(ii) was in the possession of the receiving Party at the time of disclosure or later becomes available from a third party without breach of this Agreement; or
(iii) is independently developed by or for the receiving Party without access to Confidential Information, as evidenced by its records; oris independently developed by or for the receiving Party without access to Confidential Information, as evidenced by its records; or
(iv) the receiving Party has received written permission from the other Party to disclose; or the receiving Party has received written permission from the other Party to disclose; or
(v) the receiving Party is required to disclose pursuant to a valid order of a court of competent jurisdiction or other governmental body thereof; provided, however, that the receiving Party shall (to the extent permitted by applicable law) first give notice to the disclosing Party and make a reasonable effort to obtain a protective order requiring that the Confidential Information so disclosed will be used solely for the purposes for which the order was issued.the receiving Party is required to disclose pursuant to a valid order of a court of competent jurisdiction or other governmental body thereof; provided, however, that the receiving Party shall (to the extent permitted by applicable law) first give notice to the disclosing Party and make a reasonable effort to obtain a protective order requiring that the Confidential Information so disclosed will be used solely for the purposes for which the order was issued.
D. Confidential Information shall remain the exclusive property of the disclosing Party and shall be returned to the disclosing Party promptly upon request except for electronic copies maintained in a secure location in accordance with the receiving Party’s standard electronic backup procedures.
E. Each Party acknowledges and agrees that it would be difficult to fully compensate the other Party for damages resulting from the breach or threatened breach of the foregoing provisions and, accordingly, the non-breaching Party may seek temporary and injunctive relief, including temporary restraining orders, preliminary injunctions and permanent injunctions to enforce such provisions. This provision with respect to injunctive relief shall not, however, diminish a Party’s right to claim and recover damages.
6. OWNERSHIP OF WORK PRODUCT AS A RESULT OF SERVICES.
A. Subject to full and final payment by Customer of all sums due to IGX, and except for any confidential or proprietary materials in which IGX or its suppliers have a pre-existing intellectual property interest (“Existing Materials”), any and all analyses, evaluations, reports, memoranda, letters, processes, methods, programs, and manuals and any improvements, enhancements, or modifications to any of the foregoing, which are developed, prepared or conceived by IGX specifically for Customer in the performance of Services (“Work Product”), shall be and remain the exclusive property of Customer.
B. To the extent that Existing Materials are incorporated in the Work Product, subject to full and final payment by Customer of all sums due to IGX, IGX hereby grants to Customer a royalty-free, irrevocable, worldwide, nontransferable, non-exclusive, internal use, perpetual license to use, modify and prepare derivative works of such Existing Materials and to use and display such Existing Materials, but only to the extent required to utilize the Work Product in accordance with this Agreement. Except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties, Customer shall not (except as expressly permitted under this Agreement) disclose, provide access to, sublicense, disassemble, decompile, reverse engineer, modify, create derivative works of, or transfer to an affiliate or third party, any of IGX’s or its licensor’s Existing Materials without the prior written consent of IGX. Nothing in this Section 6 shall limit IGX’s ownership of patent, copyright or other intellectual property or trade secret rights in any information developed independently of this Agreement even though such information may have been used in connection with IGX’s performance under this Agreement. IGX or its employees or subcontractors may provide similar services to others and use or disclose to others the general knowledge, skill and experience that IGX and they have developed over the years, including under this Agreement.
7. REPRESENTATIONS AND WARRANTIES; DISCLAIMERS.
8. LIMITATION OF LIABILITY.
A. NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE IGX’S LIABILITY FOR: (A) DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF IGX OR ITS OFFICERS, EMPLOYEES, WORKERS, AGENTS OR SUBCONTRACTORS. IN NO EVENT SHALL IGX BE LIABLE FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY LOSSES OR DAMAGES, LOST DATA, COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES OR LOST PROFITS OF ANY KIND, EVEN IF FORESEEABLE, ARISING OUT OF OR CONNECTED WITH THIS AGREEMENT. IGX’S AGGREGATE LIABILITY HEREUNDER, IF ANY, SHALL BE LIMITED TO DIRECT DAMAGES, WHICH SHALL NOT EXCEED THE GREATER OF THE AMOUNT PAID BY CUSTOMER UNDER THIS AGREEMENT IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE ACT, OMISSION OR OTHER EVENT GIVING RISE TO THE LIABILITY OR THE AMOUNT PAID FOR THE PRODUCT OR SERVICE DIRECTLY CAUSING SUCH DAMAGES..
B. No action whatsoever arising out of transactions under this Agreement may be initiated by either Party more than one (1) year after the cause of action accrued, except for payments owed. In no event shall IGX be liable for claims by a third party. Each Party acknowledges that this Section 8 sets forth a reasonable allocation of liability between them, and that IGX’s pricing is offered in reliance on the warranty disclaimers and liability limitations and exclusions set forth in this Agreement.
9. NON-HIRING OF EMPLOYEES. Customer acknowledges that IGX and its Affiliates have invested significant resources in the training of its employees and that these employees are a valuable resource. Therefore, if IGX or one of its Affiliates provides Services under this Agreement, Customer agrees that during the term of this Agreement and for a period of twelve (12) months thereafter, Customer shall not solicit for hire or hire employees of IGX or such Affiliate (or anyone who has been employed by IGX or the Affiliate within the month prior to the date of solicitation). Should such a hiring take place, Customer shall pay to IGX or the Affliate a fee in an amount equivalent to ten percent (10%) of the employee’s total annual compensation (“Finder’s Fee”). The Parties hereby acknowledge that they have had the opportunity to obtain independent legal advice on the effect of this Section and agree that the amount of the Finder’s Fee represents a fair and reasonable sum in the circumstances.
10. EXPORT COMPLIANCE. Customer shall be solely responsible for complying with import and export control laws and regulatory requirements with respect to import and export of (i) its technology or technology licensed to Customer by third parties, and (ii) services or deliverables rendered by IGX in a different jurisdiction for the benefit of the Customer. Customer agrees not to export or re-export Products in violation of any restrictions, laws or regulations of the United Kingdom, United States of America, or any foreign agency or authority without all necessary approvals.
11. NOTICES. Notices required or permitted to be given under this Agreement shall be in writing and delivered in person or by a nationally recognized overnight carrier that obtains a receipt to the respective Party’s address set forth in the introductory paragraph of this Agreement or to such other address as the Party from time to time may have designated by written notice. Notices shall be deemed given when delivery is confirmed or on the date of first refusal. Notices of default may first be given orally if followed by written notice according to this Section 11. A copy of each notice to IGX shall be delivered simultaneously to the General Counsel of its parent company, ePlus Technology, inc., at 13595 Dulles Technology Drive, Herndon, VA 20171 USA, with copy to Vice President, Contracts at the same address.
12. PRESS RELEASES. Any press release, announcement, publication or any other media release regarding this Agreement shall be mutually agreed upon in writing by the Parties prior to release. Neither Party shall make any representations or warranties about the other Party that the other Party has not first approved in writing.
13. TERM AND TERMINATION.
For the purposes of this Section 13.B, an “Insolvency Event” means: the occurrence of any of the following in respect of a party: (a) that Party stops or suspends its business or payment of its debts or is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986) or otherwise becomes insolvent or (being a partnership) suffers bankruptcy orders being made against any one of its partners; (b) an administrator, administrative receiver, receiver or manager, liquidator or other similar officer is appointed in respect of that party or a notice of intention to appoint an administrator in respect of that Party is given; (c) a winding up order or bankruptcy order is made against that Party or that Party passes a resolution or makes a determination for it to be wound up; (d) a judgment, order or award made against that Party is outstanding and not discharged within 10 days or any distress, execution, sequestration or similar process is levied on or commenced against any of the assets of that party and not lifted, withdrawn or discharged within 10 days; (e) any arrangement, compromise or composition of that Party’s debts is proposed or made by or with that Party; or (f) any event occurs in relation to that Party in any jurisdiction in which it is incorporated, resident or carries on business which is analogous to any of those stated in this definition.
C. Effect of Termination. Termination does not relieve Customer’s obligations to pay all accrued fees, including all charges for Products ordered prior to such termination. Termination of a SOW shall not modify the term of this Agreement or the term of any other SOW. Customer agrees that upon termination of a SOW it shall pay IGX for all fees and costs incurred in the performance of its Services up to and including the effective date of termination. Termination of this Agreement shall be without prejudice to the rights and remedies of each Party accrued at the date of Termination. Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
14. GENERAL PROVISIONS.
Description of Revisions: Revisions include: Specifically referencing the Company’s Anti-Slavery and Human Trafficking Policy; Updating the Equal Opportunity section to be broader.
ePlus requires all employees to use their judgment, to be accountable for their actions, and to conduct business with integrity.
The ePlus Code of Conduct outlines the standards of ethical behavior ePlus expects of you in performing the duties of your position with ePlus. Throughout this document, we will abbreviate these standards as the “Code.”
You should keep in mind these important considerations when reading this Code:
Obeying the law, both in letter and in spirit, is the foundation on which ePlus’ ethical standards are built. All employees and officers must respect and obey the laws, rules and regulations of the cities, states and countries in which we operate, whether or not specifically addressed in the Code. Although employees and officers are not expected to know the details of each of these laws, rules and regulations, it is important to know enough to determine when to seek advice from supervisors, managers or other appropriate personnel.
If a law conflicts with a policy in this Code, you must comply with the law. If you have any questions about conflicts, please discuss with your manager, HR, the Chief Financial Officer or General Counsel for additional guidance. You may also seek advice from any attorney or other advisor you select, at your expense.
You must comply with applicable antitrust and similar laws that regulate competition in the countries in which we operate. These laws prohibit: