THESE TERMS AND CONDITIONS (“TERMS AND CONDITIONS”) APPLY TO YOUR ORDER AND PURCHASE OF HARDWARE, SOFTWARE, AND SOFTWARE AS A SERVICE (COLLECTIVELY, “PRODUCTS”), AND KOLME GROUP PROFESSIONAL SERVICES (“PROFESSIONAL SERVICES”) SOLD BY KOLME GROUP, LLC.  You (“Client”) accept the terms and conditions of these Terms and Conditions unless Client has a separate agreement signed by both Client and Kolme Group, LLC, in which case, that separate agreement will govern.  The Kolme Group Quote (“Quote”) applicable to and specifying the Products and/or Services that Client desires to purchase, together with these Terms and Conditions or Client agreement, as applicable, shall constitute the entire Agreement between the Parties and shall supersede all prior agreements, promises, proposals, understandings, and quotations, whether written or oral, pertaining to the Products and Services.

Kolme Group may, from time to time and at its sole option, revise these Terms and Conditions without notice by posting the revised Terms and Conditions on its web site.  The Terms and Conditions posted on Kolme Group’s web site at the time Kolme Group accepts your order will govern that purchase.  Kolme Group’s acceptance of any offer to purchase any Product or Service by Client is expressly limited to and conditional upon Client’s agreement to these Terms and Conditions, as incorporated by reference into the applicable Kolme Group Quote. Further, any deletion, addition or amendment of these Terms and Conditions (whether contained in Client’s purchase order, invoice, website or otherwise) shall have no effect and shall not constitute any part of or revision to the transaction contemplated between Kolme Group and Client unless expressly approved in writing.

  1. Product Sales. Kolme Group hereby sells and conveys to Client, and Client hereby purchases and accepts from Kolme Group, the Products and/or Professional Services as provided on the executed applicable Quote pursuant to these Terms and Conditions. Client shall pay to Kolme Group the Price (as defined in Section 2 below) for the Products and/or Professional Services and for all obligations specified herein, as full and complete consideration and on the terms set forth in these Terms and Conditions.  Payment terms are at Kolme Group’s sole discretion and are subject to Kolme Group’s approval.  Kolme Group reserves the right, by giving written notice to Client at any time before delivery, to increase the Price to reflect any increase in the cost incurred by Kolme Group which is due to any factor beyond the sole control of Kolme Group, including, but not limited to, any change in delivery dates, quantities or specifications of the Products and/or Professional Services that are requested by Client, any delay caused by any instructions of Client or any failure of Client to give Kolme Group adequate information or instructions.  Kolme Group reserves the right to cancel orders related to Product discontinuation or unavailability, and to correct pricing errors not detected until after Kolme Group’s confirmation of a transaction.
  2. Price and Payment Terms. The price of the Products and Professional Services, including, but not limited to, any purchase price, service fee, or recurring fee (collectively, “Price”) shall be set forth on the applicable Quote.  You agree to pay the total Price, plus tax.  In addition to the Price, Client is solely responsible for the payment of any applicable value added tax, excise tax, sales tax, credit card handling fees or other assessment of a similar nature (collectively, “Assessments”) which are imposed or charged with respect to the Products and/or Services. Unless Client provides Kolme Group with a duly executed sales tax exemption certification at the time of placement of the order pursuant to the applicable Quote, Kolme Group will add the Assessments, as permitted by the Agreement or as required by applicable law, to the Invoice. Invoices are due and payable within the time frame and in the currency specified on the invoice, measured from the date of invoice.  If payment is not received by Kolme Group within thirty (30) days of the payment deadline, Client shall pay to Kolme Group interest at a rate of four percent (4%) per month or the highest lawful rate permitted by law, whichever is greater. In addition to any other rights or remedies available to Kolme Group, Kolme Group shall have the right to suspend any of its obligations under the Agreement until such time that Client has paid all amounts past due in full.  Notwithstanding the foregoing, Client shall be and remain liable for the full performance of all of its obligations hereunder and pursuant to the applicable Quote.  Client will be responsible for Kolme Group’s costs of collection for any payment default, including, but not limited to, court costs, filing fees and attorneys’ fees.  The provisions of these Price and Payment Terms shall survive the termination of the Agreement.
  3. Delivery. Kolme Group will use commercially reasonable efforts to meet requested delivery times but does not guarantee delivery by a stated time and is not responsible for any damages due to delays or the failure to meet a stated delivery schedule.  Client agrees and understands that if the Product is lost or damaged in transit, Client shall nonetheless be responsible for paying the Price and all other costs it is responsible for under the Agreement. Client shall not be reimbursed by Kolme Group.  Notwithstanding anything to the contrary in this paragraph, title to software Product remains with the applicable Licensors, and software delivery occurs when it is first made available by the licensor or Kolme Group for your use.
  4. Software, Licensing, and Fees. Your use rights and obligations related to any software Products you purchase rights to hereunder are contained in the Terms of Use between you and the licensor(s), which will be provided to you at the time of the Quote or earlier, including if you purchase resold ClickUp Products, the ClickUp Terms of Use at the website (the “ClickUp Terms”). Client expressly agrees by its acceptance of these Terms and Conditions, including the ClickUp Terms. The Parties hereby acknowledge and agree that neither Kolme Group nor the Client own the software Products. Accordingly, Kolme Group shall not be responsible for the software Products or the obligations of the Client or licensor under any agreement for the software Products.  Any one-time licensing setup fees and/or monthly recurring licensing and application fees for the software Products to be paid to Kolme Group shall be indicated on the applicable Quote and shall be considered a portion of the Price for purposes of the provisions of these Terms and Conditions and shall be the sole responsibility of the Client.
  5. Kolme Group Professional Services. Kolme Group and Client may agree from time to time for Kolme Group to provide certain implementation, configuration and other professional Services (the “Professional Services”). All Professional Services will be documented in a statement of work (“SOW”), which SOW shall include a detailed description of the Professional Services, the timeline or phases, assumptions, Client responsibilities and obligations, change management procedures, pricing, and such other terms as mutually agreed to by the parties.  No SOW shall be binding on either party until executed by both parties.  Upon execution, each SOW shall be automatically incorporated into these Terms and Conditions.  In the case of a conflict between the terms set forth in these Terms and Conditions and those set forth in any SOW, the terms set forth in these Terms and Conditions shall control unless the SOW expressly states otherwise.
  6. Confidentiality. Both parties will maintain in confidence and safeguard all confidential information, as defined in this paragraph, of the other party. “Confidential Information” means any information that is marked or otherwise identified as confidential or proprietary at the time of disclosure or, if not marked, would reasonably be understood to be confidential given the nature of the information and circumstances surrounding its disclosure.  Both parties recognize and acknowledge the confidential and proprietary nature of any Confidential Information and acknowledge the irreparable harm that could result if such Confidential Information is disclosed to a third party or used for unauthorized purposes.  Each party agrees to use any Confidential Information only for the purpose of conducting business with each other and their clients in the manner contemplated by this SOW.  Both parties will restrict disclosures of any Confidential Information to only those personnel who have a need to know and will bind such personnel to obligations of confidentiality to the same extent that each party is bound by this SOW.  Upon request of the owner of Confidential Information, the other party will promptly return all materials incorporating any Confidential Information and any copies.  The obligations under this paragraph do not apply to information that: (i) is or becomes generally known or in the public domain through no act or omission of the other party; (ii) was lawfully in Kolme Group’s or Client’s possession without restriction as to use or disclosure before its receipt from the other party; (iii) is received from, or was made available to, a third party without any obligation of confidentiality; (iv) was independently developed; (v) is otherwise permitted to be disclosed under this SOW; (vi) is disclosed with the prior written consent of the disclosing party; or (vii) is required to be disclosed in any civil or criminal legal proceeding, regulatory proceeding or any similar process, however, the party required to make the disclosure under the law shall give prompt notice of this to the other party prior to such disclosure so that the other party may seek an appropriate protective order or give its written consent to such disclosure.
  7. No Returns and Cancellation Policy. Client understands and acknowledges that there are NO RETURNS OR CANCELLATIONS on any Products or Services, including software Products, hardware or licenses.
  8. Limited Service Warranty. Kolme Group represents and warrants that: (a) It has the full power and authority to enter into the SOW; (b) It has all other rights necessary for the performance of its obligations under the SOW, without violating any rights of any other party; (c) Services performed by Kolme Group will: (i) be performed in a timely, competent, professional, and workmanlike manner; (ii) substantially conform to the written specifications under the SOW for 30 days from completion, or for such other warranty period as may be indicated under the Special Terms, Conditions and Assumptions of the SOW; (iii) be in compliance with all laws, rules and regulations applicable to Kolme Group’s performance under the SOW; and (d) Warranty Disclaimer. THE EXPRESS WARRANTIES IN THIS SECTION 6 ARE IN LIEU OF, AND KOLME GROUP EXPRESSLY DISCLAIMS, ALL OTHER WARRANTIES IN RELATION TO THE SERVICES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE TO THE EXTENT PERMITTED IN LAW. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE WARRANTY PERIOD. Kolme Group will have no obligation with respect to any warranty Claim if the Claim is the result of damage caused by unauthorized modification, or any abuse or misuse by Client or any third party not performing under the direction of Kolme Group, or damage caused by disaster such as fire, flood, wind, or lightning
  9. Remedies. THE FOLLOWING ARE THE PARTIES’ RESPECTIVE SOLE AND EXCLUSIVE OBLIGATIONS, AND SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO ANY ACTION FOR BREACH OF LIMITED WARRANTY UNDER THE SOW. (a) Services. Client’s remedy for non-conforming Services discovered upon completion or during the warranty period shall be the re-performance of any deficient Services at Kolme Group’s expense. If Kolme Group is unable to remedy any deficient Services within 30 days of notice or such additional time as may be agreed upon by the parties, Kolme Group will, at its option, provide a credit or refund of any fees paid for the specific non-conforming Services. No re-performance will extend any warranty period. (b) Credits. Any credits issued to Client by Kolme Group for any reason must be applied by Client within 1 year from the date the credit is issued. If not used within such period, credits will automatically expire.
  10. Intellectual Property Rights. Kolme Group retains all right, title and interest in, without limitation, any works of authorship, know-how, or any invention, device, process, method, development, design, specifications, technique, apparatus, reports, schematic or technical information (whether patentable or not), documentation, software or enhancements, improvements, alterations, interfaces, work flows, and best practices developed, invented, created or reduced to practice by Kolme Group, except for Work Product defined below and set forth in this SOW (“Kolme Group IP”), and which may be used in carrying out the Services, including any modifications or improvements made to Kolme Group IP during or as a result of the Services to be performed under this Agreement. Upon payment in full of all amounts due Kolme Group for the Work Product, all documents, drawings, specifications, information, patents, patent applications, inventions, developments or processes or any copyrightable material originated and developed by Kolme Group specifically for Client as part of the Services to be performed by Kolme Group under this Agreement (“Work Product”), except for any Kolme Group IP contained within such Work Product, shall be owned by Client. Kolme Group hereby grants Client a worldwide, non-exclusive, royalty-free, perpetual, without the right of sublicense, license to use Kolme Group IP in the course of Client’s internal, business operations.
  11. Indemnification.
    (a) General. Each party will indemnify, defend and hold harmless the other party, its officers, directors, employees, agents, and affiliates from and against any claims, demands, loss, damage, or expense, including reasonable attorney fees, (collectively, “Claims”) relating to bodily injury or death of any person or damage to tangible personal property to the extent proximately caused by the negligence or willful acts or omissions of the Indemnifying Party, its officers, directors, employees, agents, and affiliates in performance of this SOW.
    (b) Intellectual Property Indemnification. Kolme Group shall, at its expense, defend, indemnify and hold harmless Client against any and all Losses arising out of or in connection with any claim that Client’s use or possession of the Intellectual Property that are created, developed, or arise out of the course of carrying out the Services in this SOW infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. In no event shall Client enter into any settlement without Buyer’s or Indemnitee’s prior written consent.
    (c) Procedures. In the event that any Claim is made against a party or other entity entitled to indemnity under this Section (an “Indemnified Party”), the Indemnified Party shall: (i) give prompt written notice of such Claim to the party that has an indemnity obligation (the “Indemnifying Party”); and (ii) provide reasonable assistance and cooperation in the defense and settlement of any Claim or legal proceeding. Notwithstanding the foregoing, if the Indemnifying Party fails to assume its obligation to defend, the Indemnified Party may do so to protect its interests and seek reimbursement from the Indemnifying Party.
  12. Insurance. Kolme Group will carry adequate insurance coverage to provide Workers Compensation insurance as required by applicable state law, including Employer’s Liability insurance with limits of at least $300,000 each accident; comprehensive Automobile Liability insurance with limits of not less than $1,000,000 combined single limit; and comprehensive General Liability insurance with limits of not less than $1,000,000 each occurrence.
  13. Non-Solicitation & Non-Hire. Both parties agree that during the time that Kolme Group is rendering Services under the terms of this SOW and for one year following the cessation of such Services, neither party will directly or indirectly solicit, offer employment, or hire any current or former employee or consultant employed by or hired by the other party involved in the performance of this SOW. This provision does not restrict the right of either party to solicit or recruit generally in the media and does not prohibit either party from hiring an employee of the other who answers any advertisement or who otherwise voluntarily applies for hire without having been initially personally solicited or recruited by the hiring party.
  14. Limitation on Use. You agree and represent that you are buying product for your own internal use and not for resale.  If Product purchased under this Agreement is intended for export, it may be subject to export regulations.  You accept full responsibility for and agree to comply fully with all export regulations, including obtaining export licenses.  The export of Products may also alter or void the manufacturer’s or publisher’s warranty.
  15. Limitation of Liability. To the maximum extent permitted by law, KOLME GROUP WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF INCOME, PROFITS, DATA, OPERATIONAL EFFICIENCY, USE OR INFORMATION, ARISING UNDER THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION OR THEORY OF RELIEF, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  To the maximum extent permitted by law, any liability for damages arising under this Agreement, regardless of the form of action or theory of relief (including negligence), is limited to the purchase price of the Product or Professional Service giving rise to the claim.  No action arising out of the transactions under this Agreement may be brought by you more than one (1) year after damages, loss or expense occurred.  Kolme Group is not liable for any claim made by a third party or made by you for a third party.
  16. Governing Law. The Agreement and any and all transactions contemplated thereby shall be governed by, construed and enforced in accordance with the laws of the State of Arizona.  Any litigation in connection with this Agreement will be brought exclusively in Maricopa County, Arizona, and you consent to the jurisdiction of the federal and state courts located therein, submit to the jurisdiction thereof and waive the right to change in venue.  You further consent to the exercise of personal jurisdiction by any such court with respect to any such proceeding.  The United Nations Convention on Contracts for the International Sale of Goods will not apply to the order.  Both parties are solely obligated to address and resolve all disputes associated with this Agreement or any order, including any damages or injuries to Your affiliates, and all claims related to this Agreement or any order will be brought by Client in Maricopa County, Arizona as provided in this Agreement.  The provisions of this Section shall survive the termination of the Agreement.
  17. Assignment. Client may not assign the Agreement without the prior written consent of Kolme Group. Kolme Group has the right to assign or subcontract all or any portion of its rights or obligations under this Agreement without notice to or consent of Client. Subject to the restrictions contained in this provision, this Agreement will be binding on and inure to the benefit of the parties hereto and their successors and assigns.
  18. Notice. Notices provided under this Agreement must be in writing and will be deemed received upon the earlier of: 1) actual receipt; 2) three (3) days after mailing, if mailed postage prepaid by regular mail or airmail; or 3) one (1) day after such notice is sent by courier or electronic transmission to the email address through which business is regularly and customarily conducted, and the email is return acknowledged.
  19. Miscellaneous. Any waiver, modification, consent, amendment or acquiescence with respect to any provision of this Agreement shall be set forth in writing and duly executed by both you and Kolme Group.  The failure of Kolme Group to seek redress for a violation of or to insist upon the strict performance of any covenant or condition of the Agreement shall not prevent Kolme Group from subsequently exercising its rights or remedies hereunder with respect to such covenant or condition or affect any such right or remedy to a subsequent act, which would have originally constituted a violation. No waiver by Kolme Group of any breach of the Agreement will be deemed a waiver of any other subsequent breach. If any term or provision of the Agreement is found invalid, illegal, or unenforceable by a court of competent jurisdiction, it shall not affect the validity and enforcement of the remaining terms and provisions of the Agreement.  If Kolme Group engages any attorney to enforce or defend any provision of the Agreement or as a consequence of any default under or breach of the Agreement by Client, with or without the filing of any legal action or proceeding, and including, without limitation, any fees and expenses incurred in any bankruptcy proceeding or in connection with any appeal of a lower court decision, Kolme Group shall be entitled to its reasonable attorneys’ fees and expenses and all costs incurred in connection therewith. The relationship between you and Kolme Group is that of independent contractors and not that of employer/employee, partnership, or joint venture. The provisions of this Section shall survive the termination of the Agreement.
  20. Force Majeure. Kolme Group shall not be liable for any loss, damage, delay or failure to deliver the Products or Services due to causes or contingencies beyond its reasonable control, including but not limited to government action, supply issues, epidemics, fire, flood, acts of war, national disaster, delays in shipment, acts of terrorism, criminal activity. Kolme Group’s time for performance of any obligations will be extended for the time period of such delay, or Kolme Group may, at its options, cancel any order or remaining part thereof, without liability, upon notice to you.
  21. Entire Agreement. This document, together with the applicable Quote(s), constitutes the entire agreement between the Parties with respect to the purchase of Products and Professional Services from Kolme Group and supersedes all prior agreements and understandings, whether written or oral, between the Parties with respect to the matters contained herein. Any waiver, modification, consent or acquiescence with respect to any provision of these Terms and Conditions will be set forth in writing and duly executed by the Parties.  KOLME GROUP EXPRESSLY LIMITS ACEPTANCE OF TRANSACTIONS FOR PRODUCTS AND PROFESSIONAL SERVICES TO THE TERMS AND CONDITIONS HEREIN.  Any additional or different terms or conditions contained in any purchase order or other documents provided by you are considered material alterations, are expressly rejected, and will not be binding upon Kolme Group.