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Terms & Conditions
1. ORDERS. Mobility Consulting Group, LLC, with its principal office at 6485 Shiloh Road, Suite B200, Alpharetta, Georgia 30005 (“Mobility CG”) shall provide to its Customer in accordance with a quote, statement of work, order or proposal (each, an “Order”) such Hardware (as defined in the Order) and/or professional services, such as installation, mobility managed services, project management, service and support (the “Professional Services”) as purchased by Customer. These terms and conditions (these “Terms and Conditions”) shall apply to each Order. Each Order shall set forth the amount, type and fees for any Hardware and/or Professional Services purchased from Mobility CG by Customer. The Order shall incorporate any blueprint or investment proposal and shall constitute the complete and exclusive definition and description of the Hardware and/or Professional Services. The Order shall include the following elements: (a) task description; (b) deliverables and schedule; (c) completion and acceptance criteria for the deliverables; (d) pricing, (e) Customer defined requirements; and (f) any special or other terms. Professional Services shall be performed in accordance with Mobility CG’s hourly or daily rates and policies specified in an Order. Any Professional Services requested by Customer and not included in the Order may be provided by mutual agreement and at Mobility CG’s then-current rates.
2. INDEPENDENT CONTRACTOR. Mobility CG shall manage its personnel and be free to exercise independent judgment as to the manner and method of provision of all Hardware and/or Professional Services. Mobility CG is an independent contractor and nothing herein shall be deemed to make one party the agent of the other.
3. PAYMENT. Except as expressly provided in the Order, all Orders are non-cancellable and non-refundable. Customer shall pay Mobility CG the fees and expenses for the Hardware and/or Professional Services within thirty (30) days after the date of Mobility CG’s invoice, unless other payment terms are specified in the Order. Customer shall pay all applicable taxes excluding taxes based on Mobility CG’s income, or provide satisfactory proof of exemption. Mobility CG retains a security interest in any Hardware until payment in full is received, and Customer hereby authorizes Mobility CG to execute and file any and all documents necessary to protect Mobility CG’s rights hereunder, including but not limited to a UCC Financial Statement in the form as deemed necessary or appropriate by Mobility CG. If Customer fails to make payments when due and such failure continues for five (5) days after Mobility CG notifies Customer of such failure, Mobility CG may refuse to perform any further Professional Services or deliver any further Hardware. If Customer fails to make payments when due, Mobility CG may charge Customer interest on the overdue amounts, from the date such amount became due at the lesser of the rate of (i) one and one-half percent (1.5%) per month or (ii) the maximum interest rate permitted by applicable law. Mobility CG reserves the right to revoke any credit extended to Customer at any time for good and sufficient cause.
4. BLANKET ORDERS. In the event that Customer has purchased the Hardware in a blanket order with multiple shipment dates, Mobility CG will invoice Customer on the shipment date of each installment of the blanket order. Customer shall be responsible for the total purchase price of the blanket order. In the event that Customer has not requested delivery of the total quantities of the Hardware prior to the expiration date of the blanket order, Mobility CG will invoice the Customer for the remaining balance due and Customer agrees to pay the remainder of the total purchase price upon receipt of Mobility CG’s invoice. If no expiration date is stated on the Order, the blanket order shall expire twelve (12) months from the date of the Order.
5. CHANGES. Either party may propose a change to an Order by delivering such request to the other party in writing. Each party shall evaluate a proposed change to the Order in good faith and shall respond in writing within fifteen (15) days following receipt of the proposed change. Mobility CG shall determine the impact of any requested or recommended change to the price or schedule for the Professional Services and advise Customer in writing of such impact. Any change to the Order shall only become effective upon the execution by both parties of an amendment to the Order. Unless otherwise agreed upon by the parties, until such time as such amendment is effective, Mobility CG will continue to perform, and Customer shall continue to pay for, the Professional Services in accordance with the Order.
6. CUSTOMER RESPONSIBILITIES. Customer represents that (a) the information (including Confidential Information) supplied by Customer and used by Mobility CG in preparation of an Order is accurate, current and complete; and (b) it has, and will continue to have during the period of performance of the Professional Services, such legal right and authority to provide Mobility CG with access and use of all software and systems as Customer may be required to provide to Mobility CG in an Order. Customer acknowledges that Mobility CG is not liable for any hardware, software, or any other items or services provided to Customer by any persons other than Mobility CG, except as set forth in the Order. Customer shall promptly notify Mobility CG of any anticipated delays or deficiencies in Customer’s responsibilities and shall provide prompt assistance in resolving any such delays or deficiencies to Mobility CG’s reasonable satisfaction. In the event Mobility CG determines the information, equipment, software, assistance or payments to be provided by Customer are delayed, inaccurate or incomplete, Mobility CG reserves the right to stop work until Customer remedies such delay, inaccuracy or incompletion to Mobility CG’s reasonable satisfaction.
7. DELIVERY. All Hardware listed in an Order shall be delivered to Customer F.O.B. Origin (FCA Origin), at which time title and risk of loss to such Hardware shall pass to Customer. Customer is responsible for all insurance and shipping costs of the Hardware.
8. REVIEW OF DELIVERABLES. All Hardware listed in an Order shall be delivered to Customer F.O.B. Origin (FCA Origin), at which time title and risk of loss to such Hardware shall pass to Customer. Customer is responsible for all insurance and shipping costs of the Hardware.
9. INVENTORY. If included in the Order, Mobility CG shall maintain Customer’s inventory and provide reporting on inventory on hand and history for Orders completed within ten (10) days of Customer’s written request. Customer has the right to visit the Mobility CG facility after providing at least 48 hours written notice prior to the visit to perform its own physical count of inventory, and Mobility CG agrees to provide reasonable and monitored (due to other customer’s inventory in the facility) access to the facility.
10. RETURN OF HARDWARE. Mobility CG will not accept the return of any Hardware for any reason without Mobility CG’s prior written consent. If Customer purchases warranty protection from Mobility CG as identified in an Order, Customer may return Hardware only in accordance with the terms of the warranty protection and if accompanied by the required return information discussed below. If Mobility CG accepts in writing the return of any Hardware, or if any Hardware is defective, such Hardware may be returned to Mobility CG if accompanied by Return Authorization (RA) and a copy of Mobility CG’s invoice with matching serial number. Any Hardware returned without an RA# may be refused by Mobility CG or shipped back to Customer, and Customer will be responsible for all shipping-related charges. Customer will be charged a 25% restocking and handling fee for the return of any Hardware, or higher if the actual restocking and handling fee charged to Mobility CG by the third party Hardware provider for the returned Hardware exceeds 25% (“Restocking Fee”). Such Restocking Fee will be due upon receipt of Mobility CG’s invoice. The Restocking Fee will not apply to the return of any defective Hardware. Mobility CG will not accept the return of any Hardware other than in accordance with this paragraph.
11. WARRANTY OF HARDWARE. If Customer purchases warranty protection from Mobility CG, such warranty protection will be as set forth in the applicable Order. If Customer does not purchase warranty protection from Mobility CG, Mobility CG makes no warranty or guaranty for the Hardware or third-party materials, and Customer shall look solely to the manufacturer/distributor of the Hardware for any warranty or other claims related to the Hardware. If Customer purchases the 2 YR Limited Device Repair (Level 1 or Level 2), such warranty covers built-in cameras, speakers, screens, microphones, charging ports, headphone ports, buttons, case and screen protector, but excludes theft & water damage. IMEI registration is required to activate the 2 YR Limited Device Repair (Level 1 or Level 2) warranty. To the extent possible, Mobility CG hereby assigns to Customer the benefits of any warranties provided to Mobility CG by the manufacturer(s) of the Hardware. Customer understands that Mobility CG is not responsible for, and shall have no liability for, hardware, software, or any other items or any services provided to Customer by any persons other than Mobility CG. TO THE FULLEST EXTENT ALLOWED BY LAW, THE WARRANTIES PROVIDED IN THIS SECTION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THE ORDER, MOBILITY CG DISCLAIMS ALL WARRANTIES EXPRESSED OR IMPLIED WITH REGARD TO THE HARDWARE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
12. ONSITE PROFESSIONAL SERVICES. Customer shall provide such access to Customer’s facilities as Mobility CG may reasonably request, during Customer’s normal business hours or as otherwise agreed upon by the parties. Mobility CG shall observe all reasonable access, health, safety and security requirements of Customer of which Mobility CG is informed in writing in advance and that are not inconsistent with Mobility CG’s own business practices. Customer shall make available to Mobility CG appropriate Customer personnel familiar with Customer’s equipment, software and/or applications. Except as set forth in an Attachment, any Services provided by Mobility CG at a Customer location will be provided on a time and materials basis. A “day” is an eight (8) hour billable workday during 8:00 AM to 5:00 PM, local time at the location of performance of the Services, Monday through Friday, excluding Mobility CG designated holidays. In the event that Customer requests Mobility CG perform Services outside of these hours or days, fees for such Services shall be subject to Mobility CG’s then-current applicable rates. Associated actual and reasonable expenses include travel, lodging and project expenses incurred by Mobility CG in the performance of the Services.
13. INDEMNITY FOR ONSITE PROFESSIONAL SERVICES. In the event Mobility CG provides onsite services to Customer pursuant to Section 2 above, subject to any limitation set forth in the Order, each party agrees to indemnify, defend and hold harmless the other party for any liabilities, costs, losses, damages and expenses (including reasonable attorney’s fees actually incurred) arising from any claim or action against or incurred by the other party for any claim for personal injury or real or tangible property damage, to the extent such injury or damages are caused by the negligent action or inaction of indemnifying party’s personnel while Mobility CG is performing services at Customer’s facility; provided, however, such obligations and liability are contingent upon: (a) the indemnified party providing the indemnifying party with prompt, written notice of a claim or threat of claim hereunder (which shall be no later than thirty (30) days following the event giving rise to the claim or threat of claim); (b) the indemnifying party having full control of the settlement and/or defense of the claim; (c) the indemnified party providing the indemnifying party the assistance necessary to defend and/or settle the claim, and (d) the indemnifying party not entering into any settlement or compromise which admits the fault of, or necessitates payment by, the indemnified party without the written consent of the indemnified party. Notwithstanding anything in the Order to the contrary, Mobility CG’s liability for any and all claims, including claims of contract, negligence and strict liability, shall not exceed the total amount paid by Customer to Mobility CG pursuant to the Order for the Professional Services or Hardware (to the extent that Customer purchased the Hardware from Mobility CG pursuant to the Order) giving rise to the claim during the twelve months immediately preceding the claim. Mobility CG shall have no responsibility for defects in hardware, software or services supplied by persons other than Mobility CG or for modifications to any hardware or software made by persons other than Mobility CG.
14. WARRANTY FOR PROFESSIONAL SERVICES. Mobility CG warrants that it will render any Professional Services in a good and workmanlike manner for a period of thirty (30) days from the date the Professional Services are completed or as otherwise agreed in an Order. In the event of any material failure to meet such standard, Customer’s exclusive remedy and Mobility CG’s sole responsibility shall be for Mobility CG to re-perform the Professional Services or, if in Mobility CG’s discretion it is not commercially reasonable to re-perform the Professional Services, provide Customer with a refund of the Professional Service fees paid by Customer. Timely completion of Professional Services and delivery of any deliverable resulting from the Professional Services by Mobility CG is subject to the timely satisfaction by Customer of any Customer obligation or requirement. TO THE FULLEST EXTENT ALLOWED BY LAW, THE WARRANTIES PROVIDED IN THIS SECTION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THE ORDER, MOBILITY CG DISCLAIMS ALL WARRANTIES EXPRESSED OR IMPLIED WITH REGARD TO THE PROFESSIONAL SERVICES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
15. OEM SERVICES AND THIRD PARTY SOFTWARE. Notwithstanding anything contained in the Order to the contrary, if the purchase of Hardware or Professional Services includes OEM services (the “OEM Services”) and third party software (“Third Party Software”), Customer shall consider the third party provider to be the contracting party. The OEM Services shall be governed by the terms and conditions set forth on the third party’s website. Third Party Software is governed by the terms conditions and end user license agreement on the third party’s website. The third party shall be the party responsible for providing the OEM Services and Third Party Software to Customer, and Customer shall look solely to the third party for any loss, claims or damages arising from or related to the provision of OEM Services or Third Party Software. Customer hereby releases Mobility CG from any and all claims arising from or related to the OEM Services or Third Party Software.
16. TERMINATION. Either party may terminate the Order in the event that a party commits a material breach of the Order and such breach is not cured within thirty (30) days (except in the event of nonpayment, five (5) days) following written notice to the breaching party. Upon termination of any Order, Customer shall pay Mobility CG for all fees owed to, and expenses incurred by, Mobility CG up until the date of termination. Any obligations and duties which by their nature extend beyond the expiration or termination of any Order shall survive the termination of such Order indefinitely, including but not limited to Sections 2, 3, 16, 17, 18, 19, 20, 21 and 22.
17. HIRING OF EMPLOYEES. Neither party shall solicit nor recruit for employment (other than by general advertising), any person who was an employee of the other party during the provision of the Professional Services or the Hardware and for a period of one (1) year thereafter, without the other party’s prior written consent. Any violation of this section shall be deemed a material breach hereof and the non-breaching party may immediately terminate the Order.
18. INTELLECTUAL PROPERTY. Any services provided by Mobility CG pursuant to an Order (whether related to Hardware or Professional Services) are not performed on a “work for hire” basis, and therefore, the intellectual property rights related to any services of Mobility CG, including but not limited to all the ideas, concepts, plans, techniques, designs, models, inventions, processes, methodologies, discoveries, formulae, software (other than third party software) of every kind (including all software deliverables, routines, algorithms, applications, programs, operating environments, databases, interfaces or patches), technology, improvements, materials, works of authorship, documentation, programming aids or trade secrets developed, created, designed, invented, authored, or conceived by Mobility CG or any of Mobility CG’s personnel or contractors in respect of any services or any testing, repairs, fixes, replacements, improvements, enhancements or updates to the services, shall be that of Mobility CG’s (collectively, “Mobility CG’s Proprietary Rights”). Further, Customer acknowledges and agrees that, if any Hardware to be serviced by the manufacturer is sent directly to the manufacturer by Customer, then Customer is solely responsible for wiping any of its intellectual property, including any Customer software or data, from the Hardware prior to sending the Hardware to the manufacturer.
19. LIMITATION OF LIABILITY. Customer understands that Mobility CG is not responsible for, and shall have no liability for, hardware, software, or any other items or any services provided to Customer by any persons other than Mobility CG. Notwithstanding anything in tan Order to the contrary, Mobility CG’s liability for any and all claims, including claims of contract, negligence and strict liability, shall not exceed the total amount paid by Customer to Mobility CG pursuant to the applicable Order for the Professional Services or Hardware (to the extent that Customer purchased the Hardware from Mobility CG pursuant to an Order) giving rise to the claim during the twelve months immediately preceding the claim. Mobility CG shall have no responsibility for defects in hardware, software or services supplied by persons other than Mobility CG or for modifications to any hardware or software made by persons other than Mobility CG. IN NO EVENT SHALL MOBILITY CG BE LIABLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF DATA, LOSS OF BUSINESS, AND LOSS OF PROFITS. THESE LIMITATION OF DAMAGES AND REMEDIES CONSTITUTE THE SOLE AND EXCLUSIVE REMEDIES AND MEASURE OF DAMAGES. THESE LIMITATIONS OF DAMAGES AND REMEDIES WILL NOT BE AFFECTED IF ANY REMEDY PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
20. CONFIDENTIAL INFORMATION. Each party acknowledges that during the course of Mobility CG’s performance in accordance with the Order, such party will acquire confidential and proprietary information and materials about the other party, including, but not limited to, its business plans, systems, software, technology, methods, know‑how and lists of its customers and suppliers and that all such knowledge, information and material so acquired are the trade secrets and/or confidential or proprietary information of the other party (hereafter “Confidential Information”). All Confidential Information shall be conspicuously marked or identified as such at or prior to the time of disclosure, or shall otherwise be deemed confidential if the reasonable person would understand, given the nature and context of the disclosure, that the information disclosed is confidential and/or proprietary. The party receiving Confidential Information (“Recipient”) agrees to maintain and protect the Confidential Information as confidential and proprietary using the same degree of care Recipient uses to protect its own confidential and proprietary information; however in no event less than a reasonable degree of care. Recipient shall not disclose the Confidential Information to any third party, except that Recipient may disclose the Confidential Information to those of its employees, agents and consultants who, on a strict need to know basis: (i) require knowledge or access to the Confidential Information for purposes of performing the Order or exercising its rights hereunder; (ii) are made aware that the Confidential Information constitutes confidential information and/or trade secrets of the disclosing party; (iii) have signed an agreement with Recipient requiring that they protect confidential information with restrictions similar to those contained herein; and (iv) agree to treat and protect the Confidential Information accordingly. Recipient agrees that, as between the parties, any and all Confidential Information is and shall remain the proprietary/confidential information and property of the disclosing party. Recipient agrees that upon request of the disclosing party, Recipient shall, within three (3) days, return to the disclosing party all originals, copies, notes and abstracts of any such Confidential Information that Recipient previously obtained from the disclosing party. Recipient shall certify their compliance with the foregoing, in writing, signed by an authorized person of Recipient.
21. FORCE MAJEURE. Notwithstanding anything in the Order to the contrary, Mobility CG shall not be liable for any delay or failure to provide the Hardware and/or Professional Services hereunder, if the delay or failure is caused by fire, flood, earthquake or any act of God, delay by subcontractor or the failure of any third party subcontractor, or third party hardware, software, network system equipment, wiring, electrical systems or utilities, or other causes beyond Mobility CG’s reasonable control. If any third party subcontractor providing service or hardware with respect to the Order, ceases to provide such services or hardware, and Mobility CG cannot find a suitable replacement vendor, then Mobility CG shall have the right to terminate the Agreement by providing thirty (30) days prior written notice to Customer.
22. MISCELLANEOUS. (a) These Terms and Conditions shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. (b) The Order and these Terms and Conditions supersede all prior proposals, understandings and agreements, oral and written, between the parties relating to the subject matter of the Order and may not be modified or altered except by written instrument duly executed by both parties. By signing the Order, Customer agrees that the Order, together with these Terms and Conditions, govern and control the rights of the parties. Any additional or differing terms, whether or not materially different, set forth in any communication from Customer are hereby expressly rejected. (c) No term or provision of the Order or these Terms and Conditions shall be deemed waived and no breach excused unless such waiver or consent is in writing and signed by the party claimed to have waived or consented. (d) Section headings are for convenience only and do not form a part of the Order or these Terms and Conditions. (e) The invalidity or unenforceability of one or more provisions of the Order or these Terms and Conditions shall not affect the enforceability of any other provision, and the Order or these Terms and Conditions shall be construed in all respects as if such invalid or unenforceable provision were omitted. (f) The Order or these Terms and Conditions shall be governed by the internal laws of the State of Georgia, without regard to its conflict of law provisions. In the event of any dispute or claim arising out of or related to the Order that cannot be resolved through negotiation shall be submitted to non-binding mediation to be conducted in Atlanta, Georgia. If such dispute is not resolved by such mediation within 60 days of the commencement of such mediation, then either Party may proceed with litigation. In the event of any suit, action or proceeding arising from or relating to the Order or these Terms and Conditions, each party hereby submits to the exclusive jurisdiction of the state or federal courts, if federal jurisdiction exists, of the State of Georgia located in Fulton County for the resolution of any action, suit or proceeding and agrees that any action, suit or proceeding shall be brought only in such a court. Each party hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such claim in any such court. The United Nations Convention for the International Sale of Goods shall not apply. (g) All notices hereunder shall be in writing, sent by certified mail, or overnight delivery service addressed to the parties at their respective addresses set forth in the Order. (h) In the event of a conflict between the terms of the Order or these Terms and Conditions, the terms of the Order shall control. The Order may be signed in counterparts and delivered by electronic submissions (e.g., email of .pdf scan).