BY ENGAGING THE VM LLC IDENTIFIED ON THE INVOICE, STATEMENT OF WORK, OR OTHER VM LLC ("VM") TO PERFORM OR PROCURE ANY SERVICES, CUSTOMER AGREES TO BE BOUND BY AND ACCEPTS THESE TERMSANDCONDITIONS OF VM LLC UNLESS CLIENT AND VM LLC HAVE SIGNED A SEPARATE AGREEMENT, IN WHICH CASE THE SEPARATE AGREEMENT WILL GOVERN. TO THE EXTENT SUCH SERVICES ARE IDENTIFIED ON VM' WEBSITE BY A PRODUCT NUMBER, THE MAIN FEATURES, SCOPE, AND SPECS INCLUDED THEREIN SHALL FORM PART OF THESE TERMSANDCONDITIONS UNLESS CLIENT AND VM LLC HAVE OTHERWISE AGREED IN WRITING. ANY GENERAL DESCRIPTION OF THE TYPES OF SERVICES AND RESULTS THEREOF POSTED ON THE WEBSITE DO NOT CONSTITUTE PART OF THE AGREEMENT BETWEEN VM LLC AND CLIENT.
IN CASE OF A PURCHASE OF PRODUCTS, INDEPENDENTLY OR IN CONJUNCTION WITH SERVICES, SUCH PRODUCT PURCHASES SHALL BE ON AND SUBJECT TO THE TERMSANDCONDITIONS OF PRODUCT SALES POSTED ON THE SITE.
Customer may issue a purchase order for administrative purposes only. Additional or different terms and conditions contained in any such purchase order will be null and void. No course of prior dealings between the parties and no usage of trade will be relevant to determine the meaning of these Terms and Conditions of VM LLC or any document in electronic or written form that is signed and delivered by each of the parties or purchase order (whether in electronic or written form) to VM LLC that has been accepted by VM LLC for the performance of Services other than Third Party Services (each, a “Statement of Work”) or invoice related thereto. This Agreement, together with any Statements of Work, contains the entire understanding of the parties with respect to the matters contained herein and supersedes and replaces in its entirety any and all prior and contemporaneous agreements and understandings, whether oral, written, electronic or implied, if any, between the parties with respect to the subject matter hereof.
THESE TERMS AND CONDITIONS OF VM LLC, ANY STATEMENTS OF WORK AND THE SERVICES HEREUNDER WILL BE GOVERNED BY THE LAWS OF THE STATE OF MARYLAND, WITHOUT REGARD TO CONFLICTS OF LAWS RULES. ANY ARBITRATION, ENFORCEMENT OF AN ARBITRATION, OR LITIGATION WILL BE BROUGHT EXCLUSIVELY IN BALTIMORE COUNTY, MARYLAND AND CUSTOMER CONSENTS TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED THEREIN, SUBMITS TO THE JURISDICTION THEREOF AND WAIVES THE RIGHT TO CHANGE VENUE. CUSTOMER FURTHER CONSENTS TO THE EXERCISE OF PERSONAL JURISDICTION BY ANY SUCH COURT WITH RESPECT TO ANY SUCH PROCEEDING. Except in the case of nonpayment, neither party may institute any action in any form arising out of these Terms and Conditions of VM LLC or any Statement of Work more than one (1) year after the cause of action has arisen. The rights and remedies provided VM LLC under these Terms and Conditions of VM LLC are cumulative, are in addition to, and do not limit or prejudice any other right or remedy available at law or in equity.
Customers may order services (collectively, "Services") from or through VM LLC from time to time. Orders are not binding on VM LLC until accepted by VM LLC. Certain Services, such as extended warranty service by manufacturers, are sold by VM LLC as a distributor or sales agent ("Third Party Services").
In the case of Third Party Services, the third party shall be the party responsible for providing the services to the Client and Client will look solely to the third party for any loss, claims or damages arising from or related to the provision of such Third Party Services. Client hereby releases VM LLC and the entities that control, are controlled by, or are under common control with VM LLC ("Affiliates") from any and all claims arising from or relating to the purchase or provision of any such Third Parties Services. Any amounts, including, but not limited to, taxes, associated with Third Party Services which may be collected by VM LLC will be collected solely in the capacity as an independent sales agent.
Client agrees to cooperate with VM LLC in connection with performance of the Services by providing (i) timely responses to VM LLC's inquiries and requests for approvals and authorizations, (ii) access to any information or materials reasonably requested by VM LLC which are necessary or useful as determined by VM LLC in connection with providing the Services, including, but not limited to, physical and computer access to Client's computer systems, and (iii) all Required Consents necessary for VM LLC to provide the Services. "Required Consents" means consents or approvals required to give VM LLC, its Affiliates, and its and their subcontractors the right or license to access, use and modify all data and third party products. Client acknowledges and agrees that the Services are dependent upon the completeness and accuracy of information provided by Clients and the knowledge and cooperation of the agents, employees or subcontractors (“Personnel”) engaged or appointed by Clients who are selected by Clients to work with VM LLC.
VM LLC may perform the Services at Client's place of business, at VM LLC's own facilities, or such other locations as VM LLC and Client deem appropriate. When the Services are performed at Client's premises, VM LLC will attempt to perform such Services within Clients' normal business hours unless otherwise jointly agreed to by the parties. Client will also provide VM LLC access to Client's staff and any other Client resources (and when the Services are provided at another location designated by Client, the staff and resources at such location) that Client determines are useful or necessary for VM LLC to provide the Services. When the Services are provided on Client's premises or at another location designated by Client, Client maintains employees harmless from any loss, cost, damage, or expense (including, but not limited to, attorneys fees and expenses) arising out of any product liability, death, personal injury or property damage or destruction occurring at such location in connection with the performance of the Services, other than solely as a result of VM LLC's gross negligence or willful misconduct.
In connection with Services being performed pursuant to a Statement of Work, Client will pay for the Services in the amounts and in accordance with any payment schedule set forth in the applicable Statement of Work. If no payment schedule is provided, Client will pay for the Services as invoiced by VM LLC. Invoices are due and payable within the time period specified on the invoice, measured from the date of invoice, subject to continuing credit approval by VM LLC. VM LLC may invoice Client for all of the Services or any portion thereof. In the event of a payment default, Customer will be responsible for all of VM LLC's costs of collection, including, but not limited to, court costs, filing fees, and attorneys’ fees. In addition, if payments are not received as described above, VM LLC reserves the right to suspend Services until payment is received.
Except as otherwise specified on an applicable Statement of Work, Customer will reimburse VM LLC for all reasonable out-of-pocket expenses incurred by VM LLC in connection with the performance of the Services, including, but not limited to, travel and living expenses.
PRICING INFORMATION; AVAILABILITY DISCLAIMER
VM LLC reserves the right to make adjustments to pricing and service offerings for reasons including, but not limited to, changing market conditions, supplier price changes, and errors in advertisements. All orders are subject to the availability of Personnel to perform the Services. Therefore, VM LLC cannot guarantee that it will be able to fulfill Client's orders. If Services are being performed on a time and materials basis, any estimates provided by VM LLC are for planning purposes only.
LIMITATIONS OF LIABILITY
UNDER NO CIRCUMSTANCES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SET FORTH HEREIN, WILL VM LLC, ITS AFFILIATES, OR ITS OR THEIR SUPPLIERS, SUBCONTRACTORS, OR AGENTS BE LIABLE FOR: (A) ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, BUSINESS, REVENUES OR SAVINGS, EVEN IF VM LLC HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES OR IF SUCH DAMAGES ARE OTHERWISE FORESEEABLE, IN EACH CASE, WHETHER A CLAIM FOR ANY SUCH LIABILITY IS PREMISED UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY OF LIABILITY; (B) ANY CLAIMS, DEMANDS, OR ACTIONS AGAINST CUSTOMER BY ANY THIRD PARTY; (C) ANY LOSS OR CLAIM ARISING OUT OF OR IN CONNECTION WITH CLIENT'S IMPLEMENTATION OF ANY CONCLUSIONS OR RECOMMENDATIONS BY VM LLC OR ITS AFFILIATES BASED ON, RESULTING FROM, ARISING OUT OF OR OTHERWISE RELATED TO THE SERVICES; OR (D) ANY LOST, DAMAGED OR CORRUPTED DATA OR SOFTWARE. IN THE EVENT OF ANY LIABILITY INCURRED BY VM LLC OR ANY OF ITS AFFILIATES, THE ENTIRE LIABILITY OF VM LLC AND ITS AFFILIATES FOR DAMAGES FROM ANY CAUSE WHATSOEVER WILL NOT EXCEED THE LESSER OF: (A) THE DOLLAR AMOUNT PAID BY CLIENT FOR THE SPECIFIC SERVICE GIVING RISE TO THE CLAIM; OR (B) $200.
Each party anticipates that it may be necessary for each party to provide access to information of a confidential nature of such party, the Affiliates or a third party (hereinafter referred to as "Confidential Information") to the other party in the performance of this Agreement and any Statement of Work. "Confidential Information" means any information or data in oral, electronic or written form which the receiving party knows or has reason to know is proprietary or confidential and which is disclosed by a party in connection with this Agreement or which the receiving party may have access to in connection with this Agreement, including but not limited to the terms and conditions of each Statement of Work. Confidential Information will not include information which: (a) becomes known to the public through no act of the receiving party; (b) was known to the receiving party, or becomes known to the receiving party from a third party having the right to disclose it and having no obligation of confidentiality to the disclosing party with respect to the applicable information; or (c) is independently developed by Personnel of the receiving party who have not had access to such information. To the extent practicable, Confidential Information should be clearly identified or labeled as such by the disclosing party at the time of disclosure or as promptly thereafter as possible, however, failure to so identify or label such Confidential Information will not be evidence that such information is not confidential or protectable.
Either party may terminate performance of a Service or a Statement of Work for cause if the other party fails to cure a material default in the time period specified herein. Any material default must be specifically identified in a written notice of termination. After written notice, the notified party will, subject to the provision of warranties herein, have thirty (30) days to remedy its performance except that it will only have ten (10) days to remedy any monetary default. Failure to remedy any material default within the applicable time period provided for herein will give cause for immediate termination, unless such default is incapable of being cured within the time period in which case the defaulting party will not be in breach (except for Client’s payment obligations) if it used its reasonable efforts to cure the default. In the event of any termination of the Services or a Statement of Work, Client will pay VM LLC for all Services performed and expenses incurred up to and including the date of termination plus any termination fee if one is set forth in the applicable Statement of Work. Customer will also pay VM LLC for any out-of-pocket demobilization or other direct costs resulting from termination. Upon termination, all rights and obligations of the parties under this Agreement will automatically terminate except for any right of action occurring prior to termination, payment obligations, and obligations that expressly or by implication are intended to survive termination (including, but not limited to, limitation of liability, indemnity, confidentiality, or licensing of Work Product, and this survival provision).