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”).
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
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
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.
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.
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.
Fees and Payments.
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.
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.
For onsite Services, Consultant will include travel expenses in the Fees
unless otherwise designated in the relevant Quote or SOW.
Confidentiality and Proprietary Rights.
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.
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.
Term and Termination.
- The term of each SOW will be set forth in such SOW.
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.
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.
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.
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.
Disclaimer and Limitations.
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
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
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