Terms and Conditions
Terms & Conditions for Website Use
By using this Site, you agree to comply with these Terms and Conditions.
SITE CONTENTS AND OWNERSHIP
This Site contains copyrighted material, trademarks and other proprietary information, including, but not limited to, text, images, illustrations, designs and photographs. Said copyrights, trademarks, trade dress or other intellectual property is owned, controlled, or licensed by ePlus inc. (the “Company”) or its subsidiaries and affiliates (collectively, "Companies") or are the property of their respective owners. The marks ePlus® inc., and the ePlus logo are marks of the Company. Unauthorized use of any ePlus inc. marks may be a violation of federal and state trademark laws. Portions of this site may be subject to third party copyrights.
RESTRICTIONS ON USE
We grant you permission to display, copy, distribute, download, and print in hard copy portions of this Site for the purposes of making a single copy for your personal, non-commercial use, provided that you do not modify the Site and that you maintain all copyright and other proprietary notices contained in the contents of the Site. Except in connection with placing an order or making a single copy of any portion of this Site, you may not modify, publish, transmit, display, participate in the transfer or sale, create derivative works, or in any way exploit, any of the content of this Site, in whole or in part. You may not copy, reproduce, redistribute, republish, commercially exploit, download, display, post electronically or mechanically, transmit, record, or in any manner mirror, the contents of this Site without the prior written permission of the Company or the applicable copyright owner. You acknowledge that you do not acquire any ownership rights by downloading copyrighted, or otherwise protected, material. Any links to the Site must be text-only links, clearly marked and pointed to the Site's home page and not to other web pages within the site and must display the Site on full-screen and not within a "frame" on the linking web site. The appearance, position and other aspects of the link may not be such as to damage or dilute the goodwill associated with the Company’s name and marks and may not create the false appearance that you or your organization or entity is sponsored by, affiliated with, or associated with the Company.
DISCLAIMER OF WARRANTY
THE COMPANY IS PROVIDING THIS SITE AND ITS CONTENTS ON AN "AS-IS" BASIS. ALL PRODUCTS DESCRIBED AND/OR DEPICTED ON THIS SITE ARE SUPPLIED BY THIRD-PARTY MANUFACTURERS, VENDORS AND SUPPLIERS AND ARE LIKEWISE PROVIDED ON AN "AS-IS" BASIS. THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THIS SITE, ITS CONTENTS, ITS VENDORS, OR ANY PRODUCTS YOU MAY ORDER THROUGH THIS SITE, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. ALTHOUGH THE COMPANY BELIEVES THE CONTENT TO BE ACCURATE, COMPLETE, AND CURRENT, THE COMPANY DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE ON THIS SITE IS ACCURATE, COMPLETE, OR CURRENT. WARRANTIES FOR PRODUCTS DESCRIBED AND/OR DEPICTED ON THIS SITE MAY BE PROVIDED, IF AT ALL, BY THE THIRD-PARTY MANUFACTURERS, VENDORS AND SUPPLIERS OF SUCH PRODUCTS. YOU ARE SOLELY RESPONSIBLE FOR DETERMINING THE AVAILABILITY, AND EVALUATING THE SCOPE, OF ANY SUCH THIRD-PARTY WARRANTIES.
LIMITATION OF LIABILITY
IN NO EVENT SHALL THE COMPANY BE LIABLE IN CONTRACT, IN TORT (INCLUDING FOR ITS OWN NEGLIGENCE) OR UNDER ANY OTHER LEGAL THEORY (INCLUDING STRICT LIABILITY) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, LOST PROFITS OR REVENUES, AND LOSS OF USE, DATA, OR SIMILAR ECONOMIC LOSS, ARISING OUT OF OR IN CONNECTION WITH THE USE, COPYING, OR DISPLAY OF THE CONTENTS OF THIS SITE OR PRODUCTS PURCHASED THROUGH YOUR USE OF THIS SITE. THE COMPANY’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING ITS OWN NEGLIGENCE) OR UNDER ANY OTHER LEGAL THEORY (INCLUDING STRICT LIABILITY) SHALL IN NO EVENT EXCEED THE PURCHASE PRICE PAID BY YOU FOR ANY PRODUCT IN CONNECTION WITH WHICH LIABILITY ARISES.
The Company attempts to ensure that the information that it provides on the Site with respect to its vendors and partners is correct, but does not represent or warrant that such information is accurate, complete or current. You should visit the sites of our vendors and partners to verify any information. The use of vendor and partner names and logos on this site is not meant to imply any relationship or affiliation with the vendors and partners other than that of vendor or partner.
INFORMATION YOU SUBMIT TO THE COMPANY
You agree that any information, ideas or materials that you transmit to this Site shall be and remain the Company’s property. Except for job applications submitted via the Site, the Company will treat all submissions as non-confidential and non-proprietary, and the Company shall be under no obligation of any kind with respect to such information and shall be free to reproduce, use, disclose, and distribute such information, ideas or materials to others without limitation. Additionally, the Company shall be free to use any ideas, concepts, know-how, or techniques contained in such information for any purpose whatsoever including, but not limited to, developing, manufacturing, or marketing products that incorporate such information. In addition, you agree that you will not post or transmit to or from this Site any material that is unlawful, threatening, abusive, libelous, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, or any other material that could give rise to any civil or criminal liability or otherwise violates any law. You are solely responsible for the content of any comments you make.
TERMS AND CONDITIONS UPDATES AND REVISIONS
THIRD PARTY LINKS AND WEBSITES
Inclusion of any linked website on our site does not imply approval or endorsement of the liked website by us. If you decide to leave our site and access this other party's site, you do so at your own risk.
ePlus®, ePlus Leasing®, eCloud®, Finance+®, Manage+®, Procure+®, Content+®, eECM®, ePlus Enterprise Cost Management®, DigitalPaper®, DirectSight®, DocPak®, ViewMark®, and OneSource® are all registered trademarks of ePlus. Other marks referenced herein are property of their respective owners. Any rights not expressly granted herein are reserved.
ePlus' products are covered by one or more of the following: U.S. Patent Nos. 6,023,683 * 6,055,516 *6,505,172 * 6,892,185 * 6,182,127 * 6,510,459 * 7,047,211 * 7,185,069 * 7,254,581 * 7,526,494 *7,552,134 *7,644,015 *7,647,373* 7,716,084 * 7,904,348 * and corresponding foreign patents and patents pending.
Customer Terms and Conditions for Products and/or Services
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).
ePlus Technology as Buyer - Purchase Order Terms & Conditions
1.APPOINTMENT OF RESELLER. The party furnishing the products or supplies under this order (the “Seller”) and ePlus Technology, inc. (“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 ePlus. 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 Product delivered to Buyer shall be F. O. B. Buyer’s ship-to address set forth in the 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 any portion or all 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 do 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. Seller further warrants that title to the Product is fee and clear of all liens and encumbrances, and, unless noted in the PO, the Product is newly manufactured tangible personal property eligible for depreciation deductions available under the Internal Revenue Code of 1986, as amended. 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. In the event that 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, on an after tax basis, 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, agrees that Buyer has not granted and shall not grant any security interest in the Product to Seller.
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 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.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.
12.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 or national origin. Seller will take affirmative action to insure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin.
13.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.
14.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.
15.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.
IGX Global - Terms And Conditions For Purchasing Products And Services
IGXGlobal UK Limited is a company registered in England, company number 05551268, with a registered office at Camburgh House, 27 New Dover Road, Canterbury, Kent, CT1 3DN and with offices at One Aldgate, London, EC3N 1LP (“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”).
- “Affiliate” means a person, company or organisation that controls, is controlled by or is under common control with a Party.
- “Party” means IGX or Customer, and “Parties” means both IGX and Customer.
- “Product” means third-party IT related hardware equipment, peripherals and/or software together with manufacturer maintenance, support and other third party services as resold by IGX to Customer.
- “Purchase Order” means each purchase order issued pursuant to which Customer purchases Products or Services, as accepted by IGX. Purchase Orders may be issued in hard copy or electronic format and include purchase authorizations submitted through IGX’s OneSource IT electronic procurement portal.
- “Services” means professional services provided by IGX, as defined in the applicable SOW.
- “SOW” means a work order or statement of work identifying Services to be provided by IGX, including a detailed task list or specifications, the estimated period of performance, the fixed price or hourly rate to be paid by the Customer for the Services, together with any milestones and other information or criteria regarding the scope of work as mutually agreed by the Parties.
2. PURCHASE OF PRODUCTS.
- Products are purchased upon Customer’s issuance of a Purchase Order, subject to acceptance by IGX. The Purchase Order shall constitute an offer by Customer to purchase Products on the terms and conditions of this Agreement. Acceptance may be given either in writing (including email), or by IGX’s performance, such as procuring the Products, arranging for shipment, and/or invoicing. All references herein to IGX or Customer, as the case may be, shall refer to an Affiliate of such Party to the extent such Affiliate issues or accepts a Purchase Order, in which case a contract is formed between such Affiliate and the other Party (or its Affiliate) subject to these Terms. A Purchase Order must include (a) location where the Products are to be delivered and any special delivery instructions; (b) description of the Products, including quantity and Product numbers; (c) manufacturer or third party maintenance and support for equipment and programs, if applicable; (d) any installation or other professional services to be provided by IGX pursuant to a related SOW; (e) name and address of the Customer contact person for billing and name of the entity to be billed; (f) desired delivery date for the Products; and (g) any other special terms and conditions; provided, however, that such special terms and conditions do not conflict with this Agreement. In the event of a conflict between the terms and conditions of the Purchase Order and this Agreement, the provisions of Section 14.A shall apply.
- Customer agrees to abide by all product licensing provisions or end user agreements imposed by the manufacturer or software publisher. Customer shall not reverse engineer, disassemble, decompile, or otherwise reduce to human perceivable form or attempt to discover the source code for the computer software (except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties) or remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the software. Customer represents and warrants that any Products purchased according to the terms of this Agreement are for Customer’s internal use only and are not for resale or further distribution. Customer agrees to indemnify, defend and hold harmless IGX from and against any and all third party claims, liabilities, costs and expenses relating to or arising from a breach of this Section 2.B by Customer.
- Cancellations or partial cancellations of orders for Products or Services require written confirmation from IGX. All cancellations are subject to manufacturer policies and guidelines and IGX’s ability, pursuant to those policies and guidelines, to cancel orders to its manufacturers. Customer is responsible for all liabilities, costs, expense, damage and loss suffered, incurred or paid by IGX related to cancellations by Customer.
- IGX shall use reasonable commercial efforts to meet any delivery dates specified in the Purchase Order, but any such dates shall be estimates only and time shall not be of the essence for delivery of Products. Shipment shall be Ex Works. Customer shall be responsible for and pay all shipping, freight, and insurance charges unless otherwise agreed by the Parties, as well as any taxes, levies, duties or similar charges.
- Title to Products shall pass to Customer on receipt by IGX of Customer’s payment in full in cleared funds of all sums due to IGX in relation to the Product(s) which are the subject of the Purchase Order and any other Product(s) and/or Services IGX has supplied to Customer in respect of which payment has become due. Until title to the Product(s) passes to Customer: (i) Customer may use the Product(s) in the ordinary course of its business; (ii) Customer shall store the Product(s) separately from other goods held by Customer, maintain such Products in satisfactory condition, keep them insured against all risks for their full price from the time of delivery, notify IGX immediately if Customer suffers an Insolvency Event and provide IGX with such information concerning the Product(s) as IGX may request from time to time; (iii) if Customer suffers an Insolvency Event, then without prejudice to any other rights IGX may have, IGX may at any time require Customer to deliver up the Product(s) and, if Customer fails to do so promptly, enter any premises of Customer or any third party where such Product(s) are stored in order to recover them.
- Except for damaged packaging upon visual inspection, Customer shall not refuse delivery of Product shipments and, in the case where a Product shipment has been refused, IGX reserves the right to charge handling and restocking fees. If damaged Products are accepted from the carrier, such damage should be noted on the carrier delivery record. Customer should save the Product and original packaging and notify IGX to arrange for carrier inspection and pickup of damaged Products. Customer shall notify its designated account executive of any damaged shipping containers within two (2) days of receipt. The Parties agree that two (2) days is a reasonable period of time to allow for visual inspection of the container, and Customer’s failure to provide such notice within that period shall constitute acceptance. Customer also shall notify IGX of order shortages or concealed damages within seven (7) business days of delivery. These timeframes are necessary for IGX to be able to provide timely assistance to Customer in obtaining the benefit of any manufacturer warranties as well as filing shipping claims.
- Customer shall be responsible, at its own expense, for preparing prior to delivery a suitable installation site. Unless otherwise specified, Customer shall be responsible for installing and connecting the Products within Customer’s environment compatible to manufacturer’s specifications provided by IGX to Customer.
- Approvals for unused, unopened returns are subject to manufacturer return policies and guidelines and IGX’s ability to return Product to its vendors. Such Products must be complete and in manufacturer’s original packaging with no visible damage. IGX shall not be required to accept return of a Product without an approved return merchandise authorization (“RMA”) number, which may be obtained by contacting the Customer’s designated account executive. An RMA number is valid for (10) days from issuance, unless other arrangements are made between the Parties, and any items received at an IGX return facility without an RMA number or after the RMA validity period will be sent back to Customer at Customer’s expense. The RMA number is to be clearly noted on a shipping label affixed to the outer shipping box. Writing, markings or stickers, except shipping labels, on the manufacturer box will void an authorized return. Except in the event of an IGX or vendor error, Customer will be responsible for shipping charges associated with Products being shipped for return, exchange or replacement. Returns must be made via an authorized shipping 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 IGX. At IGX’s 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” Products be returned directly to them, or they may limit the return timeframe. Products found not to be defective after testing by IGX or manufacturer technicians may be subject to return at Customer’s expense. If a Product is not returnable under manufacturer guidelines, IGX will make commercially reasonable attempts to repair or replace the Product through the manufacturer warranty. Customer should contact its designated IGX account executive for further manufacturer warranty details. In any event, IGX will work with its vendors to facilitate returns for the Customer.
- If Customer receives a Product solely for evaluation purposes in accordance with an IGX quotation and applicable manufacturer authorizations, Customer may elect to purchase such Product at the end of the evaluation period identified on the quotation or otherwise in writing by IGX (the “Evaluation Period”). If Customer elects not to purchase the Product, Customer shall, on or before the end of the Evaluation Period, (i) in the case of software, either delete the software and return all originally accompanying materials or, (ii) in the case of hardware, request and obtain from IGX an RMA number for such Product; pack the Product and all originally accompanying materials in the original IGX containers; and return the Product to IGX or its designate, F.O.B. destination with RMA referenced, in the same condition as originally delivered to Customer. Customer shall be responsible for shipping and insurance charges. Products not returned as specified above by the end of the Evaluation Period shall be deemed to have been purchased by Customer at IGX’s then current list price and payment shall be due in accordance with this Agreement.
3. PURCHASE OF SERVICES.
- Customer may, from time to time, purchase IGX’s Services pursuant to a mutually acceptable SOW. The SOW shall constitute an offer by Customer to purchase Services. The SOW shall only be deemed to be accepted by IGX, when IGX issues written acceptance of the SOW, at which point and on which date a contract between the Parties in respect of the Services ordered shall come into existence on and subject to the terms and conditions of the SOW and this Agreement. The sole authority to commence effort by IGX or to obligate payment by Customer in respect of the Services shall be a written SOW executed by both Parties. In the event of a conflict between the terms and conditions of the SOW and this Agreement, the provisions of Section 14.A shall apply.
- Customer acknowledges that in order for IGX to perform Services, Customer may need to make certain personnel or other resources available to IGX in a timely manner. Customer agrees that it will cooperate in providing information or personnel upon IGX’s request, and Customer acknowledges that its failure to do so may prevent IGX from meeting milestones under a SOW. IGX shall use reasonable commercial efforts to meet any performance dates specified in the SOW, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services. IGX shall not be liable for any failure to perform the Services to the extent such failure is caused by Customer’s lack of cooperation or other neglect or default in relation to the Services.
- Customer is responsible for all content, material, message or data made available or transmitted in accordance with the provision of Services and for its compliance with all applicable laws, regulations, ordinances and codes and acceptable use policies of any third-party vendors or websites. In the event that Customer provides IGX with access to computer programs, specifications, content or other Customer-provided materials (“Customer Materials”), Customer represents and warrants to IGX that it owns or is duly authorized to grant such access to the Customer Materials. The Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Materials. In particular, if the access to and/or use of the Customer Materials by IGX in performing the Services constitutes the processing of personal data (within the meaning of the Data Protection Act 1998 as amended or replaced), Customer and IGX acknowledge and agree that: (i) IGX shall process such personal data as a data processor and Customer shall be the data controller and retain sole responsibility for obtaining the consent of the relevant data subjects to the processing of the personal data by IGX and for the security of such personal data; (ii) IGX shall process any personal data under this Agreement or a SOW only in accordance with Customer’s instructions; and (iii) any personal data processed by IGX under this Agreement or a SOW may be transferred or stored outside the EEA or the country where Customer is located in order for IGX to carry out the Services and its other obligations under this Agreement.
- IGX, in performing the Services, will be making recommendations and providing advice, but all decisions as to implementing such advice and recommendations shall be made by and shall be the sole responsibility of the Customer and IGX shall be entitled to rely on all such decisions of Customer. IGX is providing Services to assist Customer in support of the initiatives and activities described in the SOW and shall not assume any cost or schedule liability unless expressly agreed. Customer is the governing authority of all activities and project directives and retains full responsibility for the leadership, review, and approval of actions taken and deliverables completed by IGX in support of Customer.
- IGX’s managed services solutions may be purchased pursuant to a separate master managed services agreement executed by the Parties. Manufacturer maintenance, support and similar third party services that are purchased from IGX as a reseller (and not pursuant to an IGX SOW) are subject to the terms of this Agreement applicable to Products.
4. PRICING AND PAYMENT.PRICING AND PAYMENT.
- Pricing and Payment Terms. The pricing for each order shall be as set forth on the applicable Purchase Order. Unless otherwise agreed in writing for a particular order, IGX will invoice (i) for Products upon shipment without regard to any related Services, and (ii) for Services upon completion of such Services or of an applicable milestone under a SOW, and Customer shall be obliged to pay such invoice(s). Payments shall be due net thirty (30) days from the date of IGX’s invoice and shall be made in Pounds Sterling by (1) cheque drawn on a UK bank; or (2) bank transfer or automated clearing house (ACH) transfer to an account specified by IGX. Customer shall bear all related bank fees and charges. Customer acknowledges that IGX may participate in and retain the benefit of vendor incentive plans, rebate programs, or other programs with, among others, its travel providers wherein IGX may receive benefits, such as frequent flier miles or other consideration. If Customer does not indicate for which item of equipment to apply payment, IGX reserves the right to apply payments to customer’s balance at its discretion. All amounts due under this Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). If any deduction or withholding is required by law Customer shall pay to IGX such sum as will, after the deduction or withholding has been made, leave IGX with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding. If Customer is required by law to make a deduction or withholding, Customer shall, within seven (7) days of making the deduction or withholding, provide a statement in writing showing the gross amount of the payment, the amount of the sum deducted and the actual amount paid.
- Expense Reimbursement. Whenever Services are provided by IGX at a location requested by Customer other than at an IGX location, IGX shall be reimbursed for all actual and reasonable travel and living expenses (“Expenses”) provided such Expenses are in accordance with a standard reimbursement policy, the terms of which are set forth as follows:
(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.
- Taxes.IGX will furnish Customer with invoices showing separately itemized amounts due in respect of any and all sales, use, excise, value added, or similar taxes associated with the purchase of Products or Services, under applicable law (however, specifically excluding taxes on IGX’s net income) (“Taxes”), if any, or, in lieu thereof, Customer shall provide IGX with a tax exemption certificate acceptable to the applicable taxing authorities. Tax exemption certificates must be furnished to IGX prior to Product shipment or commencement of Services. Otherwise Customer shall pay or reimburse IGX for all Taxes due under this Agreement and IGX shall remit those amounts to the appropriate taxing authority. All persons furnished by IGX shall be considered solely employees of IGX, and IGX is responsible for compliance with applicable laws, rules, and regulations relating to employment of labor, working hours and conditions, payment of wages and employment, National Insurance and other payroll taxes including contributions from such employees when required by law.
- Late Payments. If Customer fails to make any payment due to IGX under this Agreement or any SOW by the due date for payment, then, without limiting IGX’s remedies under Section 13, Customer shall pay interest on the overdue amount at the rate of one percent (1%) per month, or the maximum rate permitted by the Late Payment of Commercial Debts (Interest) Act 1998 if less. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. Customer shall pay the interest together with the overdue amount. In the event IGX must resort to collection, Customer shall be responsible for all costs including legal fees. IGX reserves its right to review and revise either the credit or the payment terms based on Customer’s financial condition or payment history at the time of such review, and Customer agrees to provide all relevant information. IGX may suspend Services or stop filling Product orders in the event of nonpayment.
- Third Party Financing Arrangements. If the “Bill To” party on a Purchase Order is different from the “Ship To” party, Customer shall be responsible for all payments and late fees if the “Bill To” Party fails to make payment. In any case where Customer receives Products or Services but the purchase authorisation is provided from a third party to be billed pursuant to a lease or financing arrangement, payment of the invoice is Customer’s responsibility in the event such third party fails to make timely payment.
- Communications. Any communications concerning disputed debts, including any instrument tendered as full satisfaction of the disputed debt, should be sent to IGX and copied to the General Counsel, ePlus Technology, inc., in accordance with Section 11.
- Installment Payments. If IGX agrees to furnish Products or Services that require multiple payments or any payment to be made more than ninety (90) days from the date of the initial invoice (such as a multi-year maintenance contract with scheduled annual payments), then the following applies:
- The obligation to make the payments is non-cancelable and may not be terminated early. Customer agrees that its payment obligations to IGX are absolute and unconditional in all events.
- Customer shall be in default upon failure to pay any sum within five (5) days of the due date, or failure to perform or observe any other obligation. If Customer defaults, IGX may do any or all of the following: (A) terminate this Agreement for material breach, (B) require Customer to stop using and return to IGX the Products or Services, (C) require Customer to pay to IGX on demand an amount equal to the sum of (1) all payments and other amounts then due and past due, (2) all remaining payments for the remaining term discounted at a rate of 2% per annum, (3) interest at the rate of one percent (1%) per month on the amounts specified in Sub-sections (1) and (2) above until the date paid, and (4) all other amounts that may later become due in connection with the applicable Products or Services, and/or (D) exercise any other remedy available to IGX or its assignee under law.
5. CONFIDENTIALITY OBLIGATIONS.
- “Confidential Information” means the terms of this Agreement together with all data, reports, analyses, compilations, records, pricing and evaluation of all or any portion of the transactions contemplated by this Agreement, provided that Confidential Information must be marked with an appropriate legend or, if not in written or tangible form, identified as confidential at the time of disclosure and summarized and delivered to the other Party within three (3) days following disclosure.
- Notwithstanding any expiration of this Agreement or its termination for any reason, each Party shall protect the Confidential Information of the other Party from unauthorized disclosure to any third party until three (3) years from the date of its receipt. Information about Customer's needs may be disclosed by IGX to applicable manufacturers, distributors and other suppliers as required for IGX to receive discounts, commissions, rebates, or other consideration pursuant to agreements with its vendors.
C. Confidential Information does not include information that:
(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.
- IGX represents and warrants that Services it performs pursuant to a SOW will be performed with reasonable care and skill in accordance with industry standards generally prevailing among providers of similar services under similar circumstances. Customer shall notify IGX of any noncompliance with the foregoing warranty prior to completion of the Services or within five (5) business days thereafter, failing which Customer shall be deemed to have accepted the Services provided pursuant to the relevant SOW. Notwithstanding anything to the contrary in this Agreement, Customer understands that IGX shall bear no responsibility for the performance, repair or warranty of any of Customer’s software or equipment or any software, hardware product or service provided to Customer by a third party and/or vendor, and Customer shall look solely to the third party provider for all remedies and support with regard to such products or service.
- IGX does not provide warranties on Products it does not manufacture, whether with respect to design, performance, specifications, functionality or compatibility with Customer’s system or otherwise. Without limiting the foregoing disclaimer, IGX does not warrant that such Products cannot cause or are free from susceptibility to security or data breaches. Any Product warranty and any rights to indemnification for claims or losses related to a Product must come directly from the manufacturer. To the extent authorized, however, IGX will pass through to Customer any transferable Product warranties, indemnities, and remedies provided to IGX by the manufacturer.
- ALL WARRANTIES PROVIDED HEREIN ARE PERSONAL TO, AND INTENDED SOLELY FOR THE BENEFIT OF, CUSTOMER AND DO NOT EXTEND TO ANY THIRD PARTY. THE WARRANTIES SET OUT IN THIS SECTION 7 ARE IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS IN RELATION TO THIS AGREEMENT AND IGX HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH PRODUCTS SOLD OR SERVICES OR DELIVERABLES PROVIDED INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON‑INFRINGEMENT OR OTHERWISE.
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.
- Term. This Agreement shall commence on the Effective Date and shall, unless otherwise terminated as provided in this Agreement, continue for an initial period of 12 months and, thereafter, this Agreement shall automatically renew for successive twelve (12) month periods unless or until a Party provides written notice to the other of its intention to terminate in accordance with the provisions of this Agreement.
- Termination. At any time that there is no uncompleted SOW or non-cancelable order outstanding (but not otherwise), either Party may terminate this Agreement for any or no reason on fifteen (15) days written notice to the other Party. Either Party may terminate this Agreement and/or any SOW with immediate effect on giving written notice to the other Party if: (i) the other Party commits a material breach of this Agreement and/or the SOW (including without limitation failure to pay any amount due) and such breach is not remediable or has not been remedied within thirty (30) days of receipt of notice to remedy such breach; or (ii) the other Party suffers an Insolvency Event. IGX may terminate this Agreement and/or any SOW with immediate effect on giving written notice to Customer if Customer fails to pay any amount due to IGX by the due date for payment and such payment remains outstanding seven (7) days after Customer receives written notice to make such payment. If a breach by its nature cannot reasonably be cured within such thirty (30) day period, then without prejudice to the non-breaching Party’s rights and remedies, the breaching Party shall commence to cure the breach within such period, and then diligently prosecute such cure to completion.
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.
- Entire Agreement; Order of Precedence. This Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes and extinguishes all prior or contemporaneous agreements, promises, assurances, undertakings, commitments, warranties, representations, understanding, proposals, discussions, and communications, whether oral or in writing, relating to its subject matter undertakings and commitments. Neither the terms of any Purchase Order, invoice, or other instrument documenting a payment or transaction issued by a Party in connection this Agreement, nor any other act, document, usage, custom, or course of dealing shall modify the terms of this Agreement. Terms printed on or referenced by Customer’s Purchase Orders, offers to buy, terms and conditions and the like shall have no effect. In the event of a conflict between this Agreement and a SOW, the SOW shall control, but only with respect to the Services set forth therein. Each Party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
- Relationship of the Parties. The relationship created hereunder between the Parties shall be solely that of independent contractors. No representations or assertions shall be made or actions taken to imply or establish any agency, fiduciary, joint venture, partnership, employment or other relationship hereunder. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
- Assignment and Subcontracting. Except any assignment by IGX of its right to receive payments, neither Party shall sell, assign, subcontract, transfer or otherwise deal with its rights or obligations under this Agreement, in whole or in part, without the other Party’s prior written consent or as expressly permitted by this Agreement. Any such attempted assignment or dealing shall be void. IGX reserves the right to subcontract with other individuals and businesses for the performance of Services under this Agreement, but such subcontracts shall not constitute assignment of IGX’s obligations or rights hereunder.
- Severability.If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of any provision or part-provision under this Section will not affect the validity and enforceability of any other provision or part-provision of this SOW.
- Governing Law and Jurisdiction.This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
- Force Majeure. Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if the delay or failure to perform any of its obligations under this Agreement results from an event or circumstance (a “Force Majeure Event”) resulting from a judicial or government decree or regulation which is not such Party’s fault, communication line failure, power failure, any natural disaster or act of God, war, terrorism, invasion, insurrection, riot, the order of any civil or military authority, fire, flood, earthquake, weather, lockouts, strikes, the unavailability of personnel due to injury, sickness, death or termination of employment, either voluntary or involuntary, or, without limitation, any other cause beyond such Party’s reasonable control, the Party so affected shall promptly give notice to the other Party and shall use reasonable commercial efforts to resume performance. Upon delivery of such notice, all obligations under this Agreement shall be immediately suspended. If the period of nonperformance exceeds fifteen (15) days, the Party receiving notice of a Force Majeure Event may, by giving written notice, terminate this Agreement or any SOW. Delays in delivery due to Force Majeure Events shall automatically extend the delivery date for a period equal to the duration of such events. A Force Majeure Event, however, shall not apply to or extend Customer’s obligation to pay for Products or Services.
- Survival of Terms. The provisions of Sections 4, 5, 6, 7, 8, 9, 13.C, 14 and 15 shall survive the expiration or termination of this Agreement and/or a SOW for any reason.
- Counterparts.This Agreement may be executed in counterparts, each of which shall be deemed an original and all such counterparts shall constitute one and the same Agreement. Transmission of an executed counterpart of this SOW (but for the avoidance of doubt not just a signature page) by fax or email (in PDF, JPEG or other agreed format) shall take effect as delivery of an executed counterpart of this SOW. If either method of delivery is adopted, without prejudice to the validity of the agreement thus made, each Party shall provide the other with the original of such counterpart as soon as reasonably possible thereafter. No counterpart shall be effective until each Party has executed and delivered at least one counterpart.
- Variation. This Agreement may be modified only by means of a duly executed written amendment. Neither the terms of any purchase order, invoice, or other instrument documenting a payment or transaction that is issued by either Party in connection this Agreement, nor any other act, document, usage, custom, or course of dealing shall modify the terms of this Agreement. This Agreement shall be enforceable in accordance with its terms when signed by each of the Parties hereto.
- Third Party Rights. No one other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
- No waiver. No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
- Customer shall: (i) comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including the Bribery Act 2010 (“Relevant Requirements”); (ii) comply with IGX’s ethics and anti-bribery policies as may be notified to Customer in writing from time to time (“Relevant Policies”); (iii) have and shall maintain in place throughout the term of this Agreement its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements and the Relevant Policies, and will enforce them where appropriate; (iv) promptly report to IGX any request or demand for any undue financial or other advantage of any kind received by Customer in connection with the performance of this Agreement; and (v) immediately notify IGX in writing if a foreign public official becomes an officer or employee of Customer or acquires a direct or indirect interest in Customer, and Customer warrants that it has no foreign public officials as direct or indirect owners, officers or employees at the date of this Agreement.
- Customer shall ensure that any person associated with Customer who is performing services or providing goods in connection with this Agreement does so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on Customer in this Section 15 (“Relevant Terms”). Customer shall be responsible for the observance and performance by such persons of the Relevant Terms, and shall be directly liable to IGX for any breach by such persons of any of the Relevant Terms.
- For the purpose of this Section 15, the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively. For the purpose of this Section 15, a person associated with Customer includes any agent, delegate or subcontractor of Customer.
Code of Conduct
Description of Revisions: Revisions include: Specifically addressing data privacy and workplace privacy; Clarifying the Ethical Reporting section to separately address Business Records and Public Disclosures; Clarifying the Conflict of Interest section to be simpler and to reference the Company’s Related Person Transaction Policy; Updating the Gifts language to reference the Company’s Gifts Policy; Updating the Improper Payments language to be broader, and to specifically reference the Foreign Corrupt Practices Act and the U.K. Bribery Act. Additional changes to improve readability were made to several sections, including the Political Process, Equal Opportunity and No Harassment sections.
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:
The Code applies to all of our employees, officers and directors regardless of location or position.
You should follow this Code in letter and in spirit, along with any applicable laws, regulations and other ePlus policies and procedures.
You may never violate this Code, or any Corporate Policy, simply because someone directs you to do so. If you receive such a request you must refuse, and you should follow the reporting procedures detailed within the Code.
In addition to governing conduct among employees, the Code governs conduct between employees and customers, competitors, and the numerous business providers who assist ePlus every day, including vendors and contractors.
The Code has been approved by the ePlus Board of Directors. Because we want our customers, business partners and investors to understand how we do business, and what they can expect from us, the Code is published on our corporate website, and also in the ePlus Employee Handbook.
Amendments and Waivers
ePlus will publicly disclose all material amendments and any waivers for senior financial officers, executive officers or directors, to the extent required by law.
Compliance with Laws, Rules and Regulations
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:
Agreements to fix prices, bid rigging, market allocation and collusion (including price sharing) with competitors;
Boycotts, certain exclusive dealing arrangements and price discrimination agreements; and
Unfair trade practices, including bribery, misappropriation of trade secrets, deception, intimidation and similar unfair practices.
ePlus complies with all applicable environmental laws, rules and regulations. You should strive to utilize resources appropriately and efficiently and dispose of all waste in accordance with applicable laws, rules and regulations.
Contributions of Company funds or the use of Company assets or facilities for the benefit of political parties or candidates is prohibited unless approved in advance by the Chief Financial Officer or the General Counsel.
All employees may participate personally in the political process and support political parties and candidates of their choice. You should not in any way suggest that ePlus endorses or supports a political activity or view, however, you may disclose ePlus as your employer, if requested, on a political donation form.
Customers, suppliers, and government agencies rely upon the integrity of our business records. All business records, such as timecards, purchase orders, invoices, expense reports, certifications and financial records must accurately reflect the transactions of the Company in accordance with all applicable requirements. We will not create or permit false or misleading entries to be made in the records of the Company under any circumstances.
ePlus requires full, fair, accurate, timely and understandable disclosure in reports and documents that are filed with, or submitted to, the U.S. Securities and Exchange Commission and in other public filings and communications. The standards for accounting and financial reporting require the proper recording of, and accounting for, revenues, costs, expenses, assets, and liabilities. If you have responsibility for, or any involvement in, these areas, you must understand and adhere to these rules and prepare all reports, books and records of ePlus with care and honesty, and adhere to all internal control policies and procedures.
Violations of laws associated with accounting and financial reporting can result in fines, penalties, and imprisonment and they can lead to a loss of public faith in the Company. If you become aware of any action related to accounting or financial reporting that you believe may be improper, you should submit your concerns to the Chief Financial Officer or General Counsel. Alternatively, employees can use the ePlus internal web-based communication channel, VOICE IT, or call the Hotline, which is managed by a third-party service provider. Callers have the option to remain anonymous.
Employees are entitled to reimbursement for reasonable business-related expenses, but only if those expenses were actually incurred and fall within the parameters detailed within the ePlus Travel and Expense Policy. Business expense reports must be accurate, include all supporting documentation, and be submitted in a timely manner. Submitting an expense account for meals not eaten, miles not driven, airline tickets not used, or any other expense not incurred as submitted, is dishonest reporting.
ePlus typically does not possess personal information, except with regard to our employees. We take appropriate steps to protect information relating to individuals, whether they are employees, customers, investors or vendor partners. We are responsible for collecting, processing and transferring personal data only for lawful and legitimate business purposes, and use care in safeguarding the confidentiality and security of personal data, and in respecting personal privacy.
As an ePlus employee, it is important that you understand that ePlus may take the following steps when you access any ePlus network or system, or use any device, regardless of ownership, to conduct ePlus business:
Access, search, monitor, and archive all data and messages sent, accessed, viewed, or stored;
Conduct physical, video, or electronic surveillance (as permitted by law); and
Review IM, phone, and similar records, and web-surfing history.
ePlus employs, trains, promotes and compensates individuals based on merit, job-related qualifications and abilities. ePlus is committed to providing equal opportunity without regard to race, color, religious creed, sex, gender, gender expression, gender identity, transgender, sexual orientation, national origin, age, marital status (including same-sex marriages), genetic predisposition/carrier status, disability or any other classification proscribed under federal, state or local law.
Any kind of harassment by or against our employees is prohibited. All employees must comply with our Sexual Harassment Policy. Prohibited conduct includes the making of unwelcome sexual advances or engaging in any other conduct with sexual overtones which interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment. All instances of sexual harassment should be reported, and will be investigated, as described in the Sexual Harassment Policy.
Health and Safety
ePlus is committed to providing employees with a safe and healthy work environment. All employees have a responsibility for maintaining the health and safety of the work environment by following environmental, safety and health rules and practices, and for reporting accidents, injuries, and unsafe equipment, practices or conditions.
All employees are expected to perform their company-related work in a safe manner, free from the influence of alcohol, illegal drugs or controlled substances.
We all deserve to work in an environment that is free from violence or hostility. ePlus will not tolerate any threatening, hostile or abusive behavior by employees, or from anyone with whom an ePlus employee comes into contact in the course of doing business for ePlus.
You must report any instance of violence, hostile behavior or possession of weapons on Company property to your supervisor or Human Resources immediately. In cases of imminent danger, you should call 911 or local law enforcement first, and then the General Counsel, Human Resources, or your manager. Supervisors are expected to inform the VP of Human Resources or the General Counsel no later than 24-hours after any reports or act or threat of violence, even if the situation has been addressed and resolved.
We expect our leaders to set an example and be role models in every respect. As leaders, you must ensure that employees have sufficient information to comply with laws and policies, and create a culture that promotes the highest standards of ethics and compliance. This culture must encourage all employees to raise concerns when they arise. We must never sacrifice ethical and compliant behavior in the pursuit of business objectives or generate an environment where employees are fearful to raise concerns.
Working with Others
Relations with Government Officials and Employees
You may not make any payments to or for the benefit of any government official or employee in order to secure business or to obtain special concessions. Relations with government representatives, even where personal friendships may be involved, must be legal, in good taste and such that full public disclosure would in no way damage ePlus’ reputation.
Relations with Contractors and Vendors
Relationships with our contractors and vendors are to be managed in a fair and reasonable manner, consistent with applicable laws and ethical business practices. The selection of contractors and vendors will be made on the basis of objective criteria, including quality, technical excellence, price, delivery, adherence to schedules, service and maintenance of
adequate sources of supply. Purchasing decisions will be based on the vendor’s ability to meet our needs, and not on personal relationships and friendships.
Authority to make ePlus Commitments
The ePlus management system and contracting processes are designed to help ePlus protect its assets and to provide the appropriate controls needed for ePlus to run its business effectively with its customers, business partners, vendors and other third parties. Authorities are defined within the ePlus ‘Authority Matrix’.
Commitments must be visible to ePlus accounting to help ensure the accuracy of ePlus’ financial results. Making business commitments outside of the most current and internally published Authority Matrix is prohibited.
Conflicts of Interest
Any employee activity that may involve a conflict of interest, or may reasonably create an appearance of a conflict of interest, must first be approved by the Chief Financial Officer, with the assistance of the Chief Compliance Officer or Company legal counsel, and must be in compliance with the Company’s Related Person Transaction Policy.
Examples of Conflicts of Interest include:
Holding a significant and undisclosed financial interest in a current or reasonably anticipated customer, supplier or competitor of ePlus, or serving as an employee consultant or director of that business. (Holding a small amount, such as less than 5%, of the publicly-traded stock of our suppliers or customers would not constitute a conflict of interest.)
Directing ePlus business to a supplier owned or managed by a relative.
Accepting “spiffs” from vendors other than in accordance with our Gift Policy.
Using confidential ePlus information for personal benefit, or for the benefit of others.
Performing work or rendering services for any entity who does, or seeks to do, business with ePlus, outside the normal course of your employment, without the approval of the Chief Financial Officer or the Chief Compliance Officer (or the Board of Directors, if you are an executive officer).
Although the exchange of gifts and entertainment can promote a successful working relationship and goodwill, you must follow all applicable laws and company rules and procedures. You
should assume that any gift given or received will be made public, and should not offer or accept any gift that might reasonably be viewed negatively if disclosed.
ePlus has a Gift Policy that addresses common gift situations, and with which all employees are required to comply. ePlus also has an online reporting tool for employees to report gifts given or received that are not otherwise addressed under the policy. The Gift Policy can be found on eConnect, in the Human Resources’ policies section.
It is never appropriate to offer or receive bribes, kickbacks or improper payments. This prohibition applies to dealings with current and potential customers, suppliers, representatives, consultants or other business partners seeking to establish a relationship with ePlus. Many countries and U.S. states have laws prohibiting bribery of government officials and commercial bribery. In particular, employees should be aware of, and comply with, the U.S. Foreign Corrupt Practices Act and U.K. Bribery Act.
If you are unsure if a payment or gift is inappropriate or illegal, you should seek guidance from the General Counsel.
Personally Gaining From Corporate Opportunities
You owe a duty to ePlus to advance its legitimate interests. You cannot take any business opportunity you learn of as a result of your employment or use any ePlus property for your personal benefit or for the benefit of a family member. For example, you should not acquire any interest in a company when you know that ePlus may take or is taking steps to acquire an interest in that company. If you learn of a business opportunity you are interested in pursuing that is within ePlus’ existing or proposed lines of business, you should inform your supervisor, ePlus’ Chief Financial Officer or, in the case of executive officers, the Board of Directors. You should not personally pursue the business opportunity until ePlus decides not to pursue it and grants approval for you to do so.
Participation on Boards of Directors
It is a conflict of interest to serve as a director of a company that is in competition with ePlus.
Employees and officers should not serve as a director of any other for-profit company, other than on behalf of ePlus, without the approval of the Chief Financial Officer or, in the case of the Chief Financial officer, the Chief Executive Officer. In the case of any employee who is also a director of ePlus, service as director of any other for-profit company must be approved by ePlus’ Board of Directors.
Confidential and Proprietary Information
Customers, vendors, and others disclose confidential information to ePlus for business purposes. Each employee has a responsibility to protect and maintain the confidentiality of this information. Failure to properly protect customer and third-party information may damage our relationships with these important business partners, and may result in legal liability.
ePlus owns all information, in any form (including electronic information), that is created or used in support of its activities. This information is a valuable asset and ePlus expects you to protect it from unauthorized disclosure. This information includes ePlus customer, vendor, business partner and employee data. Federal, state and foreign laws may restrict the use of this information and may penalize you if you use or disclose it. You should protect information pertaining to ePlus’ competitive position, business strategies and information relating to negotiations with employees or third parties and share it only with employees who need to know it in order to perform his or her job. Nothing in this policy shall be deemed to interfere with employee disclosure rights protected by law.
Intellectual Property and Proprietary Information
You should carefully maintain and manage the intellectual property rights of ePlus to which you have access, including patents, trademarks, copyrights, licenses and trade secrets, to preserve and protect their value. In addition, you should respect the intellectual property rights of others. If you violate other’s intellectual property rights, you and ePlus could face substantial liability, including criminal penalties. Intellectual property that you create during the course of your employment belongs to ePlus. You must share any innovations or inventions you create with your supervisor so that ePlus can take steps to protect these valuable assets.
Federal and state securities laws and ePlus’ policies prohibit you from:
Purchasing or selling ePlus securities while you know material, nonpublic information about ePlus; and
Disclosing material, nonpublic information, except as permitted by law.
In order to better protect non-public information, all confidential Company business information and information of our customers, vendors and business partners, should be disseminated internally only on a “need-to-know” basis. For more information, employees should refer to the ePlus Insider Trading Policy which is posted on the Corporate Intranet and is included as an Appendix to the ePlus Employee Handbook.
Because of the complexity of insider information and insider trading, and the severity of the punishments involved, which can include criminal prosecution, you should seek the advice of
ePlus’ General Counsel on any questions regarding this subject. In some cases, you may want to retain an attorney on your own to advise you.
Requests for information from the media, analysts, attorneys, law enforcement officers and others.
What may appear to be an innocent request for information could result in serious harm to our company. Be alert to requests for information from outside of ePlus.
You should not initiate contact with the media, analysts, attorneys or others.
If you receive a request for information from these sources, you must direct the caller to the Company’s main telephone number (703) 984-8400 or 888-482-1122. The call will then be directed to the General Counsel, the Chief Financial Officer, or the Investor Relations Department.
To avoid inadvertent disclosure, never discuss with any unauthorized person confidential information. Furthermore, you should not discuss such information even with authorized ePlus employees if you are in the presence of others who are not authorized, for example, at a trade show reception or in a public area. You should also not discuss such information with family members or with friends, who might innocently or unintentionally pass the information on to someone else.
If you ever suspect or know that you or someone else has inadvertently disclosed information that is confidential or non-public, you must contact the General Counsel immediately.
Protection and Proper Use of Company Assets
ePlus’ assets include our physical assets and our extremely valuable proprietary information, such as ePlus’ intellectual property and ePlus confidential information, noted in the previous section.
Care should be taken to ensure that assets are not misappropriated, loaned to others, or sold or donated, without appropriate authorization. ePlus will take appropriate steps, including legal measures, to protect its assets.
You have an obligation to care for and protect the equipment that has been provided to you. If you use ePlus equipment at your home or off site, you must take precautions to protect it from
theft or damage, just as if it were your own. If you leave ePlus employment, you must immediately return all Company-owned equipment.
How To Report Possible Violations
You should report suspicions to only those people who absolutely need to know. This protects people from allegations that may not be proven and prevents the possible destruction of evidence. The Company does not allow retaliation for reports made in good faith.
You have several options available for voicing you concerns:
Start by talking with your immediate manager. ePlus managers have a duty to promote an open and honest environment where members of their teams can feel comfortable about voicing their concerns without fear of retaliation.
If you do not feel comfortable discussing your concern with your manager, or after seeking assistance you do not feel the outcome resolved your issue, please contact a Human Resources representative.
If you do not feel comfortable with either of the first two options, or after seeking assistance, you do not feel the issue was appropriately addressed or resolved, please contact the Chief Financial Officer or the General Counsel.
In addition to the options already listed, you can submit comments or concerns via the Company’s internal web-based communication channel “VOICE IT”. VOICE IT submissions are received by HR and the General Counsel.
Also, ePlus has retained the services of an external provider, to manage a confidential Whistleblower Hotline for ePlus employees. The Hotline is available 24 hours a day, 7 days a week. Your concern will be documented by the third party. An independent ePlus Board member, the General Counsel and the Vice President of Human Resources receive details of all ePlus-related calls made, directly from the third-party provider.
Non-ePlus employees should contact the Company’s main telephone number (703) 984-8400 or 888-482-1122. The call will then be directed to the General Counsel, the Chief Financial Officer, or the Investor Relations Department.