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These Standard Terms and Conditions are referred to below as “these Terms and Conditions.” These Terms and Conditions will be incorporated in the Parties’ contracts for the supply of Products (defined below) and/or the provision of services by Cascade Defense, LLC, a Washington limited liability company (“Cascade Defense”), via a quotation, Statement of Work or other agreement, shall together with the following documents pertinent to a given transaction, constitute a separate contract between the Parties: (i) these Terms and Conditions, (ii) any quotation, (iii) any Statement of Work, (iv) other documents, if any, the Parties explicitly agree should form a part of the agreement between them, and (v) any exhibits referenced in any of the foregoing documents (collectively, the documents listed above in “i” through “v” shall constitute the “Agreement”). The “Client” referred to in these Terms and Conditions means the client executing these Terms and Conditions and identified in the Agreement into which these Terms and Conditions are incorporated. Cascade Defense and Client are sometimes referred to as a “Party” or together as the “Parties.”
1. PAYMENT TERMS
Cascade Defense’s standard payment terms are Net 15. Unless otherwise noted on a Cascade Defense order form, quotation or other agreement, payments for products, which include but are not limited to hardware, software, and manufacturer maintenance and support contracts (collectively, “Products”) and/or services provided to Client, are to be made within Cascade Defense’s standard terms of Net 15. Products will be invoiced to Client upon shipment to Client’s site or a storage facility designated by Client, which may be at a warehouse or other location of Client’s or Cascade Defense’s. Services will be invoiced to the Client in advance of services performed, unless otherwise specified. Appropriate Taxes (defined below) and shipping & handling charges may be added at the time of invoicing. Shipment terms are FOB origin. Time is of the essence with regard to Client’s obligations under the Agreement. In addition to any other rights or remedies available to Cascade Defense, the outstanding balance on any payment(s) not made within these Terms and Conditions will be assessed interest at the rate of one and one-half percent (1.5%), or the maximum rate allowable by law, whichever is less, and the failure by Client to make timely payment(s) shall constitute an event of default under the Agreement. Client shall furnish financial information to Cascade Defense from time to time upon request by Cascade Defense to determine Client’s credit worthiness. All sales are subject to credit approval.
Cascade Defense’s cancellation and return policies are subject to the applicable manufacturer’s cancellation and return policies and may be modified at any time without notice. NOTE: based upon the applicable manufacturer’s policies, certain software or other Products may not be eligible for return, and some returns may be subject to a minimum re-stocking fee. All returns MUST be pre-authorized by Cascade Defense in writing with a Returned Merchandise Authorization (“RMA”). All Products must be returned in their original packaging in as-new condition, along with any items originally included therein (e.g., all original boxes, manuals, etc.). Cascade Defense WILL NOT accept Products returned without a valid RMA and/or that are not packaged in as-new condition, and Client will be obligated to pay the entire invoice due for such Products.
During the performance of the Agreement the Parties may exchange certain technical and business information, intellectual property, and other information considered proprietary or confidential, the nature of which the disclosing Party makes the receiving Party aware upon disclosure (“Confidential Information”). Each Party agrees to protect such Confidential Information from disclosure to anyone other than the receiving Party, its affiliates and any of their directors, officers, managers, members, employees, agents and representatives who need access to such information to enable the receiving Party to perform its obligations under the Agreement (collectively “Representatives”), exercising the same degree of care used to protect the receiving Party’s Confidential Information of like importance and in any event no less than a reasonable degree of care. Within fourteen (14) days of a request by the disclosing Party, all Confidential Information, and all copies thereof, shall be destroyed or returned by the receiving Party or its Representatives and, upon request, the receiving Party shall furnish written confirmation that it has done so. In the event the receiving Party is ordered to disclose the disclosing Party’s Confidential Information pursuant to a judicial or governmental request, requirement or order, the receiving Party shall, if permitted by law, immediately notify the disclosing Party and take reasonable steps to assist the disclosing Party in contesting the same or otherwise protecting the disclosing Party’s rights. In the event of any threatened or unauthorized disclosure by the receiving Party or any of its Representatives, the disclosing Party shall be entitled to injunctive or other equitable relief seeking to restrain such use or disclosure without the necessity of proving actual harm or posting bond, in addition to all other rights and remedies under the Agreement or otherwise available at law or in equity.
4. INDEPENDENT CONTRACTORS
The Parties are independent contractors. Neither Party is an employee, agent or representative of the other Party. The Agreement does not create an association, joint venture, or partnership between the Parties nor imposes any partnership liability upon either Party. Except as otherwise specifically set forth in the Agreement, neither Party shall have any right, power, or authority to enter into any agreement for or on behalf of the other Party, or to incur any obligation or liability or otherwise bind the other Party.
Except as otherwise provided in the Agreement, the Parties agree not to knowingly hire, induce or solicit to hire, directly or indirectly, any of the other Party’s current employees while the Agreement is in effect and for a period of one (1) year following the later of the last purchase of Products by Client and/or completion of services for Client by Cascade Defense under the Agreement, without the prior written consent of the other Party. Notwithstanding anything herein to the contrary, publication of open positions in any media of general circulation and requisitions to recruiting firms for open positions, without identifying the other Party or its employees, will not constitute solicitation or inducement, and either Party may engage the services of any person that responds to such general advertisings or postings.
6. EVENTS OF DEFAULT
Client shall be in default immediately upon the happening of any of the following events: (a) Client fails to meet any of its payment obligations under the Agreement; (b) Client becomes insolvent, becomes the subject of a voluntary or involuntary petition in bankruptcy or any other form of judicial reorganization or supervision, has a receiver appointed for its business, enters into any arrangement with creditors or otherwise is unable to pay its debts as they become due; (c) Client violates any of the provisions of the Agreement; or (d) Client misrepresents any fact to Cascade Defense concerning Client, including but not limited to, Client’s financial condition, business activities, and/or Client’s performance of the Agreement.
7. SECURITY INTEREST
Client agrees that all Products sold to Client will be secured by a purchase money security interest in such Products and any proceeds thereof including accounts receivable related thereto until Cascade Defense is paid in full for such Products. Client agrees to take such actions as Cascade Defense may require, including but not limited to, executing in favor of Cascade Defense one or more financing statements or such other documentation necessary or desirable to evidence and perfect the security interest granted herein, and to execute continuation statements, amendments or other documentation to continue or amend the initial filings as necessary or appropriate.
8. LIMITED WARRANTIES
8.1 PRODUCT WARRANTY
PRODUCT WARRANTIES (IF ANY) ARE PROVIDED BY THE MANUFACTURER OF THE PRODUCT(S) AND, TO THE EXTENT APPLICABLE, CASCADE DEFENSE WILL PASS-THROUGH TO CLIENT ANY WARRANTIES PROVIDED BY THE MANUFACTURER. CLIENT ACKNOWLEDGES AND AGREES THAT CASCADE DEFENSE SHALL HAVE NO LIABILITY FOR THE PRODUCTS OR PRODUCT WARRANTIES, THAT ANY PRODUCTS PROVIDED TO CLIENT BY CASCADE DEFENSE ARE PROVIDED AS-IS, WHERE IS, WITH ALL FAULTS, AND THAT CASCADE DEFENSE MAKES NO PROMISE, GUARANTY OR WARRANTY THAT THE PRODUCTS WILL PERFORM AS INTENDED OR WILL BE FREE FROM SOFTWARE GLITCHES, BUGS, BREAKDOWNS OR FAILURES.
CLIENT ACKNOWLEDGES AND AGREES THAT THE USE, TITLE, INTEREST AND RIGHTS ASSOCIATED WITH ANY PRODUCTS ARE GOVERNED BY THE APPLICABLE MANUFACTURER END-USER LICENSE AGREEMENT, SOFTWARE LICENSE AGREEMENT, MANUFACTURER’S WARRANTY, AND/OR MANUFACTURER’S MAINTENANCE/SUPPORT AGREEMENT (COLLECTIVELY, “MANUFACTURER LICENSE AND SUPPORT AGREEMENTS”) AND THAT THE MANUFACTURER MAY REQUIRE CLIENT (BY WAY OF SHRINK-WRAP, CLICK THROUGH OR OTHER CONTRACT FORMATION MECHANISMS), TO ACCEPT THE TERMS OF SUCH MANUFACTURER LICENSE AND SUPPORT AGREEMENT(S) AS A CONDITION TO THE INSTALLATION AND/OR USE OF THE PRODUCTS.
FURTHER, CLIENT HEREBY APPOINTS CASCADE DEFENSE AS ITS ATTORNEY-IN-FACT WITH FULL POWER AND AUTHORITY, FOR THE SOLE PURPOSE OF TAKING ANY ACTION REQUIRED BY THE MANUFACTURER(S) OF THE PRODUCTS AS A CONDITION TO THEIR INSTALLATION AND USE, INCLUDING BUT NOT LIMITED TO, AGREEING FOR AND ON BEHALF OF CLIENT, THAT CLIENT IS BOUND BY, AND CLIENT’S USE OF THE PRODUCTS IS SUBJECT TO, THE TERMS AND CONDITIONS OF ANY MANUFACTURER LICENSE AND SUPPORT AGREEMENTS. CLIENT HEREBY WAIVES ANY AND ALL CLAIMS OF ANY KIND AND NATURE AGAINST CASCADE DEFENSE RELATING TO OR IN CONNECTION WITH THE ACTIONS TAKEN BY CASCADE DEFENSE PURSUANT TO THIS LIMITED POWER OF ATTORNEY.
8.2 SERVICE WARRANTY
Cascade Defense represents and warrants that it will perform the Services: (i) in a professional manner, exercising the degree of skill and care commensurate with standards generally associated with Cascade Defense’s industry and area of expertise; (ii) in substantial conformance with any written specifications or other written description (including web based or other electronic presentation) of the Services; and (iii) in compliance in all material respects with all applicable federal, state and local laws and regulations.
8.3 DISCLAIMER OF UNSTATED WARRANTIES. EXCEPT AS OTHERWISE EXPRESSLY STATED IN THE AGREEMENT, THE ABOVE LIMITED WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, CASCADE DEFENSE DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, AND WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND/OR ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
9. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS OTHERWISE PROVIDED IN THE AGREEMENT, IN NO EVENT SHALL CASCADE DEFENSE BE RESPONSIBLE OR LIABLE, WHETHER IN CONTRACT, TORT, WARRANTY, UNDER ANY STATUTE, OR BASED ON ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY FOR ANY PUNITIVE OR EXEMPLARY DAMAGES, OR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR SPECIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF USE, PROFITS, REVENUE, DATA, OR BUSINESS), ARISING OUT OF, RELATING TO, OR IN ANY WAY IN CONNECTION WITH THE AGREEMENT, WHETHER FORESEEABLE OR NOT, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CASCADE DEFENSE’S TOTAL AGGREGATE LIABILITY ARISING OUT OF, RELATING TO, OR IN ANY WAY IN CONNECTION WITH THE AGREEMENT, INCLUDING BUT NOT LIMITED TO, FURNISHING PRODUCTS AND/OR SERVICES TO CLIENT SHALL BE LIMITED TO THE TOTAL AMOUNT PAID BY CLIENT TO CASCADE DEFENSE FOR THE PRODUCTS AND/OR SERVICES GIVING RISE TO THE CLAIM(S). NO ACTION, REGARDLESS OF FORM, ARISING OUT OF, RELATING TO OR IN ANY WAY IN CONNECTION WITH THE AGREEMENT MAY BE BROUGHT AGAINST CASCADE DEFENSE MORE THAN ONE (1) YEAR AFTER THE DATE OF DISCOVERY OF THE CAUSE OF ACTION.
Fees and expenses under the Agreement are exclusive of all taxes, including without limitation, all federal, state and local use, sales, property, value added and any similar taxes (collectively, “Taxes”). Client shall promptly reimburse Cascade Defense, or pay directly to the applicable government or taxing authority, all applicable Taxes arising under the Agreement. Client will not be responsible for Taxes computed upon the income of Cascade Defense.
11.1 FORCE MAJEURE
With the exception of payment obligations, neither Party shall be considered in default or liable for any delay or failure in performance under the Agreement to the extent such delay or failure is attributable to any act, omission or other cause beyond such Party’s control and absent of fault or negligence (directly or indirectly) of such Party, which materially restricts a Party’s ability to perform its obligations under the Agreement (a “Force Majeure Event”), including but not limited to, accidents; severe acts of nature such as fires, floods, tornadoes or earthquakes; strikes or other labor disputes; civil disturbance including war, insurrection, riots, terrorism or other acts of public enemies; and voluntary or mandatory compliance with any governmental act, regulation or request, provided the immediately effected Party notifies the other Party within fifteen (15) calendar days of becoming aware of a Force Majeure Event and the delay or failure of performance caused (or anticipated to be caused) by such event, and uses reasonable efforts to mitigate the impact of the Force Majeure Event. Notwithstanding the foregoing, in the event a Force Majeure Event results in any loss or damage relating to the Products and/or services to be provided by Cascade Defense, Cascade Defense shall not be obligated to continue performance except to the extent agreed upon by the Parties in a written change order reflecting an adjustment to the services, schedule Services, Schedule, Fee and Expenses as necessary or appropriate for Cascade Defense to replace the Products and complete or maintain the ability to complete (as the case may be), the services.
Cascade Defense may offset any sums due from Client to Cascade Defense against any sums owed by Client to Cascade Defense. Client shall have no right to any credits, deductions or offsets without prior written consent from Cascade Defense.
Neither Party may assign the Agreement or any of its rights under the Agreement, or delegate any of its obligations under the Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned, or delayed. Notwithstanding the foregoing, either Party may assign any or all of its rights and/or obligations under the Agreement to any affiliate without the prior written approval of the other Party; provided that, such affiliate assignee has the financial, operational, technical and other necessary capabilities and resources to accomplish any and all obligations under the Agreement in a manner comparable to the expected performance of the assigning Party.
11.4 BINDING EFFECT
All rights, remedies, obligations and liabilities given to or imposed upon the Parties under the Agreement shall extend to, inure to the benefit of and bind, as the circumstances may require, the Parties and their respective heirs, personal representatives, successors and permitted assigns.
11.5 GOVERNING LAW; JURISDICTION; VENUE
The Agreement shall be governed by, interpreted and construed in accordance with the laws of the State of Washington, without reference to conflict of laws principles. Client irrevocably consents to the jurisdiction of the state and federal courts located in the State of Washington, USA, in connection with all actions arising out of or in connection with the Agreement, waives any objections that venue is an inconvenient forum, and agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in any other jurisdiction (including the appropriate courts of the jurisdiction in which Client is a resident or in which any property or an office of Client is located) by suit on the judgment or in any other manner provided by law. Client further agrees that it will not initiate any action against Cascade Defense in any other jurisdiction.
11.6 ATTORNEYS’ FEES
In addition to all other rights and remedies available to Cascade Defense, in the event Client fails to pay any sums owing to Cascade Defense under the Agreement, Client shall reimburse Cascade Defense for all collection costs and expenses, including without limitation reasonable attorneys’ fees, incurred by Cascade Defense in collecting such sums regardless of whether litigation is commenced. In addition, if litigation is commenced by either Party to enforce any provision of the Agreement, or by reason of any breach of the Agreement, the prevailing Party shall be entitled to recover reasonable attorneys’ fees and costs, both at trial and on appeal.
No modification or amendment of the Agreement, including but not limited to, these Terms and Conditions, shall be binding on Cascade Defense unless such modification or amendment is in a writing signed by duly authorized representatives of both Parties, which specifically references the Agreement and states in definite terms that the Parties intend to modify the Agreement.
IN FURTHERANCE OF THE FOREGOING, CASCADE DEFENSE HEREBY GIVES NOTICE TO CLIENT THAT ANY ADDITIONAL OR DIFFERENT TERM OR CONDITION STATED BY CLIENT, WHETHER IN A PURCHASE ORDER, ACKNOWLEDGEMENT FORM OR OTHERWISE IN ACKNOWLEDGING OR ACCEPTING THE AGREEMENT, IS DEEMED BY CASCADE DEFENSE TO BE A MATERIAL ALTERATION OF THE AGREEMENT AND IS HEREBY OBJECTED TO BY CASCADE DEFENSE UNLESS SPECIFICALLY ACCEPTED BY CASCADE DEFENSE IN WRITING PURSUANT TO THESE TERMS AND CONDITIONS AND THE AGREEMENT. CASCADE DEFENSE’S SALE OF PRODUCTS TO CLIENT AND/OR PERFORMANCE OF SERVICES FOR CLIENT SHALL NOT CONSTITUTE ACCEPTANCE BY CASCADE DEFENSE OF ANY SUCH ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS NOT SPECIFICALLY ACCEPTED BY CASCADE DEFENSE IN WRITING AS PROVIDED HEREIN.
11.8 ENTIRE AGREEMENT
The Agreement constitutes the entire agreement between the parties pertaining to its subject matter and supersedes any and all prior negotiations and writings between the Parties with regard to such subject matter. Headings are inserted for convenience only and are in no way intended to describe, interpret, define, or limit the scope, extent or intent of the Agreement.