SOW Terms and Conditions

These SOW Terms (“Terms”) are incorporated by reference into the Statement of Work (“SOW”) between Hawk Ridge Systems, LLC and its affiliates (“Consultant”) and the customer entity that is a signatory to such SOW (“Customer”).   

1. General.  Each SOW will set forth the implementation, configuration, consulting and/or other services to be provided by Consultant to Customer (“Services”).  The Services do not include any custom development services.  Consultant may issue a quote document (“Quote”) that specifies certain pricing and other business terms pertaining to the Services.  A SOW may be accompanied by a detailed project plan agreed to by the parties (“Project Plan”). The parties may enter into one or more amendments or change orders that modify the terms of a Quote, SOW or Project Plan (each a “Change Order”). These Terms will govern each Quote, SOW, Project Plan and Change Order and all Services provided thereunder. Collectively these Terms and each relevant Quote, SOW, Project Plan and Change Order are referred to as the “Engagement Documents”. In the event of any conflict between these Terms, a Quote, a SOW, a Project Plan, and/or a Change Order the order of precedence shall be the these Terms, then the Change Order, then the Project Plan, then the SOW and then the Quote unless otherwise indicated. 
2. Services.
   1. Consultant will use commercially reasonable to perform and complete the Services in accordance with the Engagement Documents. All Services will be performed during Consultant’s normal business hours except for Consultant-observed holidays.
   2. As indicated on the Quote and/or SOW, Services may be provided onsite or remotely (with onsite delivery requiring reimbursement of travel expenses). Regardless of how the Services are provided, Customer must provide Consultant with all access necessary to perform the Services. This includes, without limitation, log-in credentials and passwords, badges/keys, and administrative access to the internal network, systems and workstations pertaining to the Services. Consultant will comply with Customer’s reasonable policies and procedures regarding such access. Customer will ensure that Consultant employees (i) are able to safely and securely exercise the access described above; and (ii) are not provided access to systems or networks that are not necessary for the performance of the Services. 
   3. Consultant will not be responsible for any missed milestones or deadlines due to Customer’s failure to provide access as described above. In addition, Consultant will not be responsible for any delay, missed deadline or increase in cost which is due to Customer’s failure to meet any of the assumptions or delay or failure to comply with any other obligation in the Engagement Documents.
   4. These Terms do not apply to any hardware, software, SaaS or other product or service resold by Consultant and listed on a Quote or SOW (“Third Party Products”); rather, the terms and conditions required by the original manufacturer or provider of such Third Party Products shall apply (“Third Party Terms”) to such Third Party Products.
3. Fees and Payments.
   1. Customer shall pay Consultant the amounts payable under each applicable Quote and/or SOW (“Fees”) at the time periods stated therein. All payments shall be made in U.S. Dollars unless otherwise specified in the Quote or SOW. Consultant will invoice Customer the applicable Fees and each invoice will be due within thirty (30) calendar days of the date of invoice. Past due invoices will accrue interest at the rate of 1.5% compounded monthly (or the maximum interest rate allowed by law). Invoiced Fees are non-refundable and non-cancelable unless otherwise expressly agreed to in writing by Consultant.
   2. Customer is responsible for all applicable sales, use and other taxes (other than taxes based on Customer’s income). Except as set forth herein, in a Quote or SOW or as otherwise agreed to by the parties in writing (email shall suffice for this purpose), each party shall be responsible for all costs and expenses incurred by it in the performance of obligations and the exercise of rights hereunder.
   3. For onsite Services, Consultant will include travel expenses in the Fees unless otherwise designated in the relevant Quote or SOW.
4. Confidentiality and Proprietary Rights.
   1. The parties will share non-public, proprietary, and confidential information (“Confidential Information”) with one another pursuant to this SOW. The party receiving Confidential Information will maintain the confidentiality of the Confidential Information it receives. The receiving party will safeguard Confidential Information using the same degree of care that the receiving party uses in safeguarding its own confidential information, but in any event not less than reasonable care. The receiving party will not disclose Confidential Information to any third-party or use Confidential Information for its own benefit or for the benefit of any third-party, except as permitted in this SOW. The receiving party will only use Confidential Information to exercise its rights or perform its obligations under this SOW. The receiving party will be responsible for any unauthorized use or disclosure of Confidential Information by its personnel, employees, or third-party contractors.  “Confidential Information” does not include any information that: (i) is or subsequently becomes publicly available through no fault of the receiving party; (ii) is known to the receiving party prior to disclosure of such information by the disclosing party; (y) is received by the receiving party from a third-party who obtained such information without restrictions and without any obligation of confidentiality; or (z) is independently developed by the receiving party without reference to the Confidential Information of the disclosing party.
   2. As between Consultant and Customer, Customer owns all right, title, and interest in and to Customer’s Confidential Information and any pre-existing software, systems, technology, and documentation that is made available to Consultant in connection with the Services and all intellectual property rights therein (“Customer Materials”). Consultant owns all right, title, and interest in and to the Services and any documents, specifications, data, know-how, methodologies, frameworks, development tools, custom code, scripts, training programs or training materials that are made available or provided to Customer in connection with the Services and all intellectual property rights therein (“Consultant Materials”). Other than the limited right granted in this SOW, Customer has no right or license to reproduce or use any of the Consultant Materials. Customer is responsible for procuring all applicable licenses required for Consultant to access Customer’s software or systems which are necessary for the completion of the Services.  Consultant may reference its performance of Services for Customer for marketing purposes.
5. Term and Termination.
   1. The term of each SOW will be set forth in such SOW.
   2. If an SOW does not specify a termination date (i.e., automatically renews for the period duration set forth in such SOW), then either party may terminate such SOW upon sixty (60) days advance written notice to the other party.
   3. Any SOW (and related Quote) may be terminated (i) by either party if the other party materially breaches this Agreement and does not cure the breach within thirty (30) days of receiving written notice thereof from the non-breaching party; or (ii) by either party if the other party provides proof that it made a general assignment for the benefit of creditors, suffered or permitted the appointment of a receiver for its business or assets, or availed itself of or became subject to any proceeding under the US Federal Bankruptcy Act or any other foreign or domestic statute, law, rule or regulation relating to insolvency or the protection of rights of creditors.
   4. Upon termination of an SOW for any reason (i) each party’s rights and responsibilities under the SOW and all related Engagement Documents will cease except that Sections 4 through 8 of these Terms shall survive; and (ii) Customer shall pay to Consultant any Fees accrued or outstanding as of the date of termination.
6. Independent Contractor Relationship. Consultant’s and each of its employees’ relationships with Customer will be that of an independent contractor and not that of an employee. Consultant is solely responsible for determining the method, details and means of performing the Services. Consultant may, at its own expense, employ or engage the service of subcontractors that it deems necessary to perform the Services. Consultant shall be responsible for the professional performance of the Services by any subcontractor. Unless stated differently in an applicable SOW, Consultant will use its own materials and equipment when providing the Services.
7. Disclaimer and Limitations.
   1. Consultant makes no representation or warranty, whether express or implied, regarding the Services, third party products, or any outcomes resulting therefrom. Consultant specifically disclaims any implied warranties of merchantability, fitness for a particular purpose, non-infringement and title. The success of the Services (and the operation of the related software, hardware, and systems) are dependent on systems, components and factors which are under the control of Customer or other third parties. Therefore, the Services are provided as-is. Consultant makes no representation or warranty as to any THIRD-PARTY
   2. Consultant will not be liable for any indirect, special, punitive, consequential, incidental, or exemplary damages. Consultant’s total aggregate liability for any damages arising under or related to Services and Consultant’s performance under any engagement document will be limited to the fees paid by Customer to Consultant under such engagement document.
8. Miscellaneous. If any provision of an Engagement Document is determined to be illegal or unenforceable, such provision will be limited or eliminated to the minimum extent necessary so that such Engagement Document will otherwise remain in full force and effect and enforceable. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. In the event of any dispute arising under or related to an Engagement Document, the parties agree that the Engagement Documents will be governed by and construed in accordance with the laws of the State of California without regard to the conflicts of laws provisions thereof. Any legal action involving an Engagement Document will be instituted in courts of competent jurisdiction in the State of California. Each party waives any objection (on the grounds of lack of jurisdiction, forum non conveniens or otherwise) to the exercise of such jurisdiction over it by any such courts. The Engagement Documents constitute the entire agreement between Customer and Consultant and supersede all prior related agreements, oral or written, and all other related communications. Consultant may assign, transfer or subcontract any rights or obligations under this Agreement without the written consent of Customer.  The terms on any purchase order or similar document submitted by Customer to Consultant will have no effect and are hereby rejected. All notices, consents and approvals under this Agreement must be delivered in writing by courier or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth in the applicable SOW and, if sent to Consultant, a copy will be sent to its Chief Financial Officer.