General Terms and Conditions as of 1 December 2023
- Entire Agreement. The scope and terms associated with the Services along with these General Terms and Conditions are together one agreement between Kolme Group and Client, collectively referred to as the “SOW”. The SOW, together with all attachments, schedules, addenda and exhibits, forms the entire agreement between the parties and supersedes any prior representations or agreements, oral or written, and all other communications between the parties relating to the subject matter of the SOW. Any conflicting additional or different terms contained in any other agreement, invoice, or statement of work, as the case may be, are expressly rejected. In the event of a conflict between these General Terms and Conditions, and Special Terms, Conditions and Assumptions under the SOW, the Special Terms, Conditions and Assumptions of the SOW shall take precedence.
- Term. The SOW begins on the date last signed by the Authorized Representative of each party (the “Effective Date”) and will expire upon one hundred and twenty (120) calendar days of the Effective Date or as otherwise provided under Section 3 below.
- Termination. The Services provided in the SOW are non-cancelable and the associated fees paid or payable are non-refundable and cannot be used as a credit towards any other amounts due to Kolme Group, without Kolme Group’s prior written consent, which may be withheld in its sole discretion.
- Invoicing/Payment. Services will be invoiced in accordance with the SOW. Client must pay all undisputed invoices in full within 30 days of the invoice date, unless otherwise specified under the SOW Special Terms, Conditions and Assumptions. All payments must reference the invoice number. Unless otherwise specified, all invoices shall be paid in the currency of the invoice.
(a) Credit/Late Payment. Kolme Group retains the right to decline or extend credit and to require that the applicable purchase price be paid prior to performance of Services based on changes in Kolme Group’s credit policies or Client’s financial condition and/or payment record. Kolme Group reserves the right to charge interest of 4% per month or the maximum allowable by applicable law, whichever is greater, for any undisputed past due invoices not paid within 15 days of the due date, unless otherwise specified in the SOW. Client is responsible for all costs of collection, including reasonable attorneys’ fees, for any payment default on undisputed invoices. In addition, Kolme Group may terminate all further work if payment is not received in a timely manner.
(b) Taxes. Federal, state and local sales, use and excise taxes and all similar taxes and duties, (excluding taxes based on Kolme Group’s income, assets or net worth), are the sole responsibility of Client. Client may provide Kolme Group a tax exemption certificate, which will be subject to review and acceptance by Kolme Group.
(a) 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 the 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.
- 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.
- 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.
- Confidential Information. Both parties will maintain in confidence and safeguard all confidential information, as defined in this paragraph, of the other party, its affiliates, and its clients. “Confidential Information” means any information that is marked or otherwise identified as confidential or proprietary at the time of disclosure and includes, but is not limited to, trade secrets, know-how, inventions, techniques, data, client lists, personal information, financial information, sales and marketing plans of the other party, its affiliates, or its clients. 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 the 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 the 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 the 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.
- 9. 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 the SOW.
(b) 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.
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF INCOME, PROFITS, DATA, OPERATIONAL EFFICIENCY, USE OR INFORMATION,) ARISING UNDER THE SOW 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 APPLICABLE LAW, THE TOTAL AMOUNT OF DIRECT DAMAGES RECOVERABLE FROM A PARTY UNDER THE SOW IS LIMITED TO THE TOTAL AMOUNT PAID OR TO BE PAID BY CLIENT FOR SERVICES PERFORMED UNDER THE SOW.
The preceding exclusions and limitations of liability shall not apply to: (1) payment of amounts due to KOLME GROUP, Nor TO (2) either Party’s indemnity obligations under section 9 OR EXPORT OBLIGATIONS UNDER SECTION 15. In addition, NO ACTION, WHETHER FOR INDEMNIFICATION OR OTHERWISE, REGARDLESS OF FORM, ARISING OUT OF THE TRANSACTIONS UNDER THE SOW, MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE YEAR AFTER THE DAMAGE, LOSS OR EXPENSE OCCURRED.
- 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.
- Notices. Any notice required or permitted to be given must be in writing and is considered received: (a) when personally delivered; (b) one business day after having been sent by overnight mail via a professional carrier; or (c) when sent via facsimile or electronic mail, receipt confirmed, with an original document placed in the mail within 5 business days of the date of that facsimile or electronic mail. All business communication will be sent to the addresses set forth above or to other persons or addresses as either party designates in writing to the other. Legal notices must be sent with a copy for Kolme Group addressed to:
Kolme Group, LLC
11201 N Tatum Blvd, Ste 300, Phoenix, AZ, 85028-6039
Attn: Legal Department.
- Governing Law. The SOW will be governed by the substantive laws of the State of Arizona without giving effect to any conflict-of-law rules.
- Non-Solicitation & Non-Hire. Both parties agree that during the time that Kolme Group is rendering Services under the terms of the 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 the 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.
- General. Any subsequent additions, deletions or modifications to the SOW are not binding unless agreed upon in writing by authorized representatives of both parties. If any part of the SOW is for any reason found to be invalid, illegal or unenforceable, all other parts will still remain in effect. A delay or failure to exercise or partially exercise any right under the SOW does not operate as a waiver, nor will it preclude future exercise of that right or permit, or sanction any subsequent breach of any term or condition. Neither party may assign its duties or rights under the SOW, whether by operation of law or otherwise, except with the other party’s prior written consent; provided that Kolme Group will have the right to assign the SOW to an affiliate or corporate successor. Kolme Group may subcontract any or all of its obligations hereunder to one or more qualified parties without Client’s prior consent, unless otherwise restricted in the SOW. Kolme Group is not responsible for default or delays caused by Client’s failure to provide accurate instructions, information, access to facilities or suitable product or application environment. Neither party will be liable for any delays in the performance of the SOW due to circumstances beyond its control, including but not limited to acts of nature, acts of government in its sovereign or contractual capacity, national emergencies, acts of terrorism, transportation delays, labor disturbances, work stoppages, material shortages or loss of electrical power, telecommunications or similar infrastructure. Client represents and warrants that no technical data will be exported under the SOW except in compliance with all requirements of the International Traffic in Arms Regulations (ITAR) and Export Administration Regulations (EAR). The provisions of the SOW, which by sense and content are intended to survive, including but not limited to the sections related to payment, warranties, remedies, indemnification, confidentiality and limits of liability, will survive the expiration or termination of the SOW. Kolme Group is an independent contractor to Client. No personnel employed or engaged by Kolme Group to perform the Services for Client will be considered Client’s employees, agents, partners, joint venture partners, or franchisors. Kolme Group has sole responsibility for the direction of its employees and has the right to fire, hire, suspend, layoff, transfer or reassign employees at will without the consent of Client.