This Open Account Agreement (this "Agreement") is made by and between Internetwork Services
Incorporated
d/b/a Internetwork Engineering ("IE") and the buyer to this Agreement
("Buyer").
Buyer desires to purchase Goods and Services (as those terms are defined below) from IE from time to time on
an open account basis and agrees, in consideration of the creation of the open account, to be bound by this
Agreement. Neither IE nor Buyer shall have any obligation to sell or purchase Goods and Services pursuant to
this Agreement. In general, the sale of any Goods shall be made pursuant to a purchase order
("PO") and the
sale of any services shall be made pursuant to a statement of work ("SOW"). Any goods sold
pursuant to a PO
are referred to as "Goods" and any services sold pursuant to a SOW are referred to as
"Services." Any Goods
or Services pursuant to a PO or SOW shall be covered by this Agreement; and IE does not accept any other
terms and conditions of sale, except where Buyer and IE have executed a contract which specifically
supersedes and replaces some or all of terms and conditions herein (e.g., a Master Services Agreement or an
Managed Services Agreement). This Agreement, which shall be referenced on all invoices, are the terms and
conditions upon which IE makes all sales of its Goods and Services.
Acceptance by IE of all Buyer’s PO is expressly made conditional upon Buyer's agreement, expressed or
implied, with the terms and conditions set forth herein without modification or addition except to the
extent that such terms are agreed between the parties either in applicable SOW or other executed document
between the parties. No Buyer terms or conditions shall apply to the Goods or Services, including any terms
Buyer affixes to any sales quote or sales confirmation issued by Buyer, and all such other terms (any and
all such other supplemental terms proposed by Buyer) are deemed rejected by IE unless explicitly accepted by
IE in writing with an acknowledgment that such other terms modify or supersede this Agreement.
A. ACCEPTANCE - Buyer’s acceptance of these terms and conditions shall be indicated by its written
signature below.
B. FEES AND EXPENSES - A PO or SOW will specify whether payment is based on time and materials or a
fixed fee (as applicable, “Fees”). If Fees are based on time and materials, Buyer shall pay IE for the
amount of time actually worked at the rates set forth in the PO or SOW. If Fees are based on a fixed fee,
Buyer shall pay IE the fixed fee specified in the PO or SOW, which shall be billed against a PO or SOW.
Professional services will be performed during normal business hours unless otherwise authorized by Buyer.
If after-hours work is required, Buyer will be charged at 1.5 times the normal hourly rate of IE’s personnel
that is specified in a PO or SOW. Normal business hours are defined as 8:00 AM through 6:00 PM, Monday
through Friday, holidays excluded. The hourly rate for IE’s personnel applies to travel time. In addition to
IE’s Fee(s), Buyer shall reimburse IE for all audit-worthy reimbursable expenses. Reimbursable expenses for
work performed outside of the area/facilities designated in the PO or SOW will require Buyer’s advance
approval and shall include: (i) actual and reasonable mileage reimbursed at fifty cents ($.50) per mile;
(ii) actual and reasonable costs of lodging, up to one hundred and fifty dollars U.S. ($150.00) per day;
(iii) actual and reasonable cost of meals up to fifty dollars U.S. ($50) per day for overnight travel; and
(iv) actual and reasonable costs of airfare for locations greater than 200 miles outside of IE’s designated
local office.
C. PURCHASE PRICE FOR GOODS - The purchase price for all Goods shall be as set forth in the
applicable PO.
D. TERMS OF PAYMENT - Unless otherwise specified, payment terms for all purchases of Goods and all
Fees are NET 30 days. Buyer shall bear all applicable federal, state, municipal and other government taxes
(such as sales, use and similar taxes), as well as import or customs duties, license fees and similar
charges, however designated or levied on the sale of Services or Goods (or the delivery thereof) or measured
by the purchase price paid for the Goods. All amounts payable to IE under the Agreement or any associated PO
or SOW shall be paid by Buyer to IE in full without any setoff, deduction, or withholding for any reason.
Any unpaid, and undisputed, invoice that is more than thirty (30) days past due shall bear interest at an
amount equal to one and one-half percent (1.5%) of the outstanding balance per month (or the maximum rate of
interest allowed to be contracted for by law, whichever is less) commencing upon the date payment is due.
Buyer’s failure to make timely payment may result in such action as commencement of proceedings for
collection, revocation of credit, stoppage of shipment, delay or cessation of future deliveries and any
services, repossession of unpaid delivered Goods and/or termination of any one of more sales agreements.
Notwithstanding any net payment provisions specified on the invoice, IE shall have no continuing obligation
to deliver Goods or Services on credit, and any credit approval may be withdrawn by IE at any time and
without prior notice. In the event the sales invoice shall be placed by IE in the hands of an attorney for
the purpose of collection, with or without litigation, or for the purpose of enforcing IE’s security
interest in the Goods, the Buyer agrees to pay any and all costs associated with such placement, including,
without limitation, attorney’s fees and costs incurred prior to, during, or subsequent to trial, and
including, without limitation, collection, bankruptcy, or other creditor’s rights proceedings. If a sale is
to occur, or the product is to be shipped, outside of the United States, Buyer acknowledges and agrees that
the amount due IE is contracted in U.S. Dollars and that time is of the essence with respect to all payment
obligations. Any payment by Buyer in local currency or the receipt by IE of local currency as a consequence
of enforcement procedures against Buyer will be deemed an authorization for IE to use that local currency to
purchase U.S. Dollars or, if such purchase is prohibited by local law, an authorization to purchase
appropriate bonds or other instruments and export them from the Buyer’s country in order to convert the
currency into U.S. Dollars and apply the proceeds to the payment of any amounts owed to IE by Buyer. Any
deficiency as a result of conversion of payment into U.S. Dollars shall be the responsibility of Buyer.
E. DELIVERY OF GOODS - Unless otherwise agreed in writing, delivery of Goods shall be made to the
address specified by Client on the applicable purchase order in accordance with the standard shipping policy
of the original equipment manufacturer or authorized designated channel representative. For all domestic
transactions, Goods shall be delivered FOB Shipping Point. Title to, and all risk of loss or damage with
respect to the Goods shall pass to Buyer upon delivery by IE to the carrier or Buyer’s representative at
IE’s warehouse. For all international transactions, the Goods shall be sold on a delivered, insurance paid,
duty and international freight unpaid basis. IE assumes no responsibility for charges attendant to customs
clearance in the country of delivery, customs duty, VAT or any other charges of taxes within the country
designated for delivery by Buyer. Title and risk of loss shall pass to Buyer upon delivery to the port
designated by Buyer and prior to customs clearance. Delivery is subject to the payment provisions set forth
herein and to IE’s receipt from Buyer of all necessary information and documentation from Buyer, including
all import certificates, exemption and/or resale certificates, licenses and other documents as may be
required from Buyer for export of the Goods. Buyer shall promptly notify IE, but in no event later than
five (5) business days after delivery, of any claimed shortages or rejection as to any delivery. Such notice
shall be in writing and shall be reasonably detailed, stating the grounds for any such rejection. Failure
to give any such notice within such time shall be deemed an acceptance in full of any such delivery. IE
shall not be liable for any shipment delays beyond the reasonable control of IE which affect IE or any of
IE’s suppliers, including, but not limited to, delays caused by unavailability or a shortage of Goods from
IE’s suppliers, natural disasters, acts of war, acts of terrorism; acts or omissions of Buyer, fire, strike,
governmental interference, unavailability or shortage of materials, labor, fuel or power through normal
commercial channels at customary and reasonable rates, failure or destruction of plant or equipment arising
from any cause whatsoever, or transport failures or delays.
F. RETURN OF GOODS - Return of Goods purchased hereunder shall be governed by the OEM’s product
return policy for such authorized goods in effect on the date of the invoice, or as otherwise provided by
IE to Buyer in advance in writing. IE will honor and pass through to Buyer all rights and warranty
entitlements provided by the original equipment manufacturer of the Goods (“OEM”). In most cases, unopened
Goods may be returned within 30 days, contingent on the OEM’s approval. Opened Goods returns may be allowed
on a case-by-case basis contingent on the OEM (or the OEM’s distributor) approval and may incur a restocking
fee. The right to return defective Goods, as previously described, shall constitute IE’s sole liability and
Buyer’s exclusive remedy in connection with any claim of any kind relating to the quality, condition or
performance of any Goods, whether such claim is based upon principles of contract, warranty, gross
negligence, 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. In the event IE issues a return
authorization to Buyer allowing Buyer to return Goods to IE, Buyer will deliver the Goods to IE’s address in
Charlotte, NC, if so required by IE, and Buyer shall bear all applicable federal, state, municipal and other
government taxes (such as sales, use and similar taxes) as well as import or customs duties, license fees
and similar charges, however designated or levied, on any replacement Goods to be shipped by IE to Buyer.
G.DISCLAIMER OF WARRANTIES FOR ALL GOODS - Although IE’s policies may permit Buyer to return Goods
claimed to be defective under certain circumstances, IE makes no representations or warranties of any kind
with respect to the Goods. IE HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO
THE GOODS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. IE WILL NOT BE LIABLE FOR ANY DAMAGE, LOSS, COST OR EXPENSE FOR BREACH OF WARRANTY.
H. PURCHASE MONEY SECURITY AGREEMENT - Buyer agrees to and hereby grants to IE a continuing Uniform
Commercial Code security interest in the Goods sold by IE to Buyer hereunder, wherever located and the
proceeds thereof until the balance owed to IE for such Goods is paid in full. Buyer agrees to execute any
additional documents necessary for IE to perfect such security interest. It is acknowledged that security
interest is a purchase money security interest.
I. INDEMNIFICATION - Each party, inclusive of its principals, officers, employees, trustees,
agents, directors, officers and consultants (“Indemnifying Party”), expressly agree to defend, indemnify and
hold harmless the other party, inclusive of its principals, officers, employees, trustees, agents,
directors, officers and consultants (the “Indemnified Party”) from any and all losses, claims, demands,
damages, liabilities, judgments, expenses, defense costs, causes of action and settlements, including
reasonable attorneys’ fees and expenses (“Losses”), arising out of the Indemnifying Party’s performance
under this Agreement, except for Losses which arise out of the gross negligence or willful misconduct of the
Indemnified Party.
J. LIMITATION OF LIABILITY - NEITHER PARTY SHALL BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY SPECIAL,
CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THE
AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, LOSS OF USE, LOST DATA OR FOR ANY
DAMAGES OR SUMS PAID TO THIRD PARTIES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF POSSIBILITY OF SUCH DAMAGES.
THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY WHETHER ANY CLAIM IS BASED UPON PRINCIPLES OF CONTRACT,
WARRANTY, BREACH OF ANY STATUTORY DUTY, THE FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY TO ACHIEVE ITS
ESSENTIAL PURPOSE, OR OTHERWISE.
K. ASSIGNMENT - Neither party shall assign this Agreement, in whole or in part, without the prior
written consent of the other party, except that IE may assign this Agreement, in whole or in part, in
connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its
assets and shall notify Buyer in writing of any such assignment within thirty (30) days. Subject to the
foregoing, this Agreement shall be binding upon and inure to the benefit of the parties, their respective
successors and permitted assigns.
L. TERMINATION - Either party may terminate this Agreement on thirty days prior written notice to
the other party. Buyer shall remain liable to IE for all Goods and Services provided by IE through the date
of termination.
M. NO THIRD-PARTY BENEFICIARY; SEVERABILITY - The provisions of this Agreement are intended for the
sole benefit of Buyer and IE, and there are no third-party beneficiaries other than assignees identified in
this Agreement. If any provision of this Agreement or the application of this Agreement to any person or
circumstance shall to any extent be held invalid or unenforceable, the remainder of this Agreement shall not
be affected, and every remaining provision of this Agreement shall be valid and binding to the fullest
extent permitted by law.
N. RESALE - Buyer shall comply with all applicable laws, codes, and regulations relating to the
Goods, including, without limitation, those relating to the licensing/control of, or prohibition against
shipment (including both export and re-export) to designated countries and/or entities. Buyer recognizes
that some Goods sales are limited to a specified territory and shall not sell Goods outside that territory.
Such sales may constitute copyright or trademark infringement.
O. NON-SOLICITATION - IE and Buyer agree that during the term of this Agreement and for a period of
twelve (12) months following the expiration or termination of this Agreement for any reason, that neither
will, directly or indirectly, solicit for employment an employee or independent contractor of the other
party with whom the soliciting party came in contact as a result of this Agreement during the term of this
Agreement. Each party understands and agrees that in the event of such solicitation, the other party may
seek all legal remedies available. Notwithstanding the foregoing, general advertisements for employment
shall not be deemed to violate this section.
P. NOTICES - Any notices including invoices to be given by either party to the other party hereunder
shall be in writing and given either by personal delivery, or by registered or certified mail, postage prepaid,
return receipt requested, facsimile or express mail. Three (3) days after the date of mailing of such notice
shall be deemed to be the effective date of such notice. Notices shall be transmitted to each party at the
address designated by such party. Until either party shall designate a different address in writing, notices
shall be transmitted to the parties at the addresses designated in the signature page to this Agreement.
Q. SIGNATURE AUTHORITY - The person signing this Agreement hereby warrants that he/she has the legal
authority to execute this Agreement on behalf of his or her respective party, and that such binding authority
has been granted by proper order, resolution, ordinance or other authorization of the entity of both parties.
The other party is fully entitled to rely on this warranty and representation in entering into this Agreement.
R. GENERAL - Any failure at any time of either party to enforce any provision of this Agreement
shall not constitute a waiver of such provision or prejudice the right of such party to enforce such
provision at any subsequent time. This Agreement shall constitute the final, complete and exclusive
agreement of the parties with respect to all sales by IE to Buyer and shall supersede all prior and
contemporaneous offers, negotiations, understandings and agreements. Unless Buyer and IE have executed a
contract which specifically supersedes and replaces some or all of terms and conditions herein (e.g., a
Master Services Agreement or an Managed Services Agreement), it is expressly agreed that no prior, contemporaneous
or subsequent agreement of understanding, whether written or oral, shall contradict, modify, supplement or
explain the terms and conditions contained herein. No additional or different terms or conditions, whether
material or immaterial, shall become a part of any sales agreement unless expressly accepted in writing by
an authorized officer of IE in the United States. Any provision of these terms and conditions that is
prohibited or unenforceable under the laws of the State of North Carolina shall be ineffective to the extent
of such prohibition or unenforceability, without impairing or invalidating the remaining provisions of these
terms and conditions. All sales agreements shall be deemed to be made in, and shall be governed by, the laws
of the State of North Carolina. The sole and exclusive venue for any disputes arising out of any sales
agreement shall be, Mecklenburg County, NC, and the parties hereby irrevocably consent to such sole and
exclusive venue. ALL SALES TRANSACTIONS EXCLUDE THE APPLICATION OF THE 1980 UNITED NATIONS CONVENTION ON
CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE.
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