Stand Alone Terms

Terms and Conditions

These Terms and Conditions govern Customer's purchase of certain hardware and software products and original manufacturer-provided services (each "Products" and "OEM Services" respectively, collectively ("Products")) and WWT-provided professional services ("Services") as set forth in the Statement of Work ("SOW") to which they are attached. The Products and Services which may be sold by WWT are set forth in the following attachments hereto: OEM Resale (Attachment 1); and Professional Services (Attachment 2). The term "Agreement" includes the SOW, the general terms and condition set forth in the body of this document (the "General Terms"), as well as the provisions of each of the attachments hereto, which are incorporated by this reference. In the event any of the General Terms conflict or are inconsistent with the Attachments, the Attachments shall prevail. In the event of a conflict between the Attachments and the SOW, the SOW shall prevail.

1. Application; Period.  These General Terms and the applicable Attachment shall apply to and commence on the commencement date of the SOW ("Effective Date") and shall continue for the period set forth therein (the "Contract Period").
2. Credit Support.  Any payment terms afforded by WWT to Customer hereunder are based on the creditworthiness of Customer as of the Effective Date.  Past due amounts shall bear interest at the greater of 1.5% per month or the maximum interest changeable under law.  Customer shall be liable for all expenses, including legal fees, relating to the collection of past-due amounts.  Should Customer's financial responsibility become unsatisfactory to WWT in its sole reasonable discretion, WWT may require cash or advance payments, letters of credit or parent guaranties for future deliveries.  WWT shall have the right, among other remedies, to terminate the Agreement in the event Customer fails to make any payment when due.
3. Confidentiality.  "Confidential Information" shall mean any information in whatever form, including, without limitation, all code, documentation, product plans, trade secrets, business plans, customer lists, know-how, and other information of whatever nature related to or incorporated into the business of a party or other business entity which is an affiliate of a party and which is reasonably understood to be of a confidential nature.  Confidential Information includes information of others that a party has agreed to keep confidential or that is conceived, compiled, developed, discovered or received by or made available by a party to the other party ("Receiving Party") in any manner.  Confidential Information shall not include information or materials that (i) is otherwise rightfully known to the Receiving Party; (ii) is released by a party to any other person, firm or entity without restriction; (iii) is generally known or easily ascertainable by non-parties of ordinary skill; (iv) is in the public domain through no fault of the Receiving Party; or (v) is lawfully obtained by the Receiving Party from a third party. If a Receiving Party is required by legal process to disclose Confidential Information, to the extent permissible under law, it will give the other party reasonable notice of such disclosure and an opportunity to attempt to preclude or limit such production.  Nothing contained in this Section shall be construed to allow a party to reverse engineer or decompile the other party's or a third-party's code. For a period of five (5) years from the receipt of any information deemed Confidential Information hereunder, each party hereto shall take all reasonable steps that are necessary or reasonable to safeguard the secrecy and confidentiality of, and proprietary rights to, the Confidential Information disclosed or provided by another party, and shall not disclose the foregoing to any third party (other than any employee, agent, director, officer, consultant or contractor, legal counsel or other professional advisors informed on a "need to know" basis who have been advised of the confidential nature thereof).  Each party shall be responsible for the compliance of such third parties with the restrictions set forth in this Section. Each party shall make no use whatsoever of any Confidential Information of the other party except as required in connection with the performance of its obligations under the SOW and in accordance with the terms hereof. Upon a party's request at any time and for any reason, the other parties shall, to the extent feasible, promptly destroy, render unreadable, or deliver to the requesting party all materials (including all copies) in its possession which contain Confidential Information of that party; provided, however, that this requirement does not apply to data that may be kept during the normal course of business in email or back-up systems. Receipt of Confidential Information under the SOW shall not create any obligation in any way limiting or restricting the assignment or reassignment of a party's employees.
4. Insurance; Indemnity. The following provisions apply to the extent that either party conducts work on the other party's property:  (a) Each party will ensure that any of its employees, agents or representatives entering the other party's premises shall abide by the workplace rules and policies of the other party, to the extent such rules and policies are communicated to the persons entering the premises; (b) During the term of this Agreement, each party will maintain, at its expense, the insurance required by applicable law and will provide the other with a certificate of insurance evidencing such coverage upon request; and (c) Each party agrees to hold harmless and indemnify the other party against all claims, losses, liabilities and damages, and to pay all claims, judgments, awards, costs and expenses, including legal fees, to the extent arising out of or related to claims of death, personal injury or property damage resulting from the gross negligence or willful misconduct of the indemnifying party or its employees.
5. Remedies.  EXCEPT WHERE A DIFFERENT REMEDY IS EXPRESSLY SET FORTH IN THIS AGREEMENT, IN NO EVENT SHALL WWT'S AGGREGATE LIABILITY TO CUSTOMER UNDER THE SOW EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO WWT FOR THE PRODUCTS OR SERVICES GIVING RISE TO THE CLAIM. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANY PERSON FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST DATA, LOST BUSINESS OR LOST PROFITS, HOWEVER ARISING, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6. Compliance with Laws.  Compliance with Laws.  Each party shall perform under the SOW in compliance with all applicable laws of any jurisdiction, regulations, codes and sanctions.
7. Notices.  All notices required or permitted under this Agreement shall be in writing and delivered in person or sent by post or facsimile, which shall be deemed duly given (a) when delivered by hand one (1) day after delivery by recognized overnight delivery, or (b) when sent by post two (2) business days after being mailed by post, or (c) when sent by facsimile upon despatch, subject to confirmation of facsimile transmission. In each case, notice must be sent to the address and/or facsimile number for the other party noted in the SOW, or to such other address and/or facsimile number as either party shall furnish to the other in writing in accordance with this Section.
8. Assignment.  Customer shall not assign any of its rights or delegate any of its responsibilities under this Agreement (by operation of law or otherwise), without the written consent of WWT, which consent shall not be unreasonably withheld, and any purported attempt to do so will be null and void.
9. Relationship of the Parties.  The parties hereto shall be deemed to be independent contractors and the employees of one party shall not be deemed to be employees of the other.  This Agreement shall not be interpreted as a joint venture, partnership, agency relationship or formal business organization of any kind.  There are no third-party beneficiaries to this Agreement. Neither party shall make any public announcement or press release concerning the SOW or the terms hereof, or the business relationship between Customer and WWT without the prior written consent of the other.
10. Legal Costs. If it becomes necessary for either party to institute any legal action against the other party, the prevailing party in such action shall be entitled to its reasonable attorneys' fees and legal costs.
11. Governing Law; Venue.   Any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of the State of New York without reference to conflicts of law. The United Nations Convention on the International Sale of Goods (1980) (as amended from time to time) shall not apply to this Agreement.
12. Force Majeure.  Neither party shall be liable for any failure to perform due to acts of God, natural disasters, riots, war, terrorism, civil disorder, court order, labor dispute or any other causes beyond that party's reasonable control, including but not limited to failures or fluctuations in electrical power, heat, light, air conditioning or telecommunications equipment or lines, and other similar causes beyond its reasonable control ("Force Majeure") provided that the party subject to the Force Majeure give prompt notice to the other party and take commercially reasonable steps to remedy the Force Majeure and mitigate the damages therefrom. For the avoidance of doubt, a change in market conditions (including WWT's ability to sell a Product or Service at a higher price and Customer's ability to economically use a Product or Service or buy it at a lower price) shall not be considered a Force Majeure.
13. Severability; Waiver.  If any provision of this Agreement is held to be unenforceable under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions of this Agreement under the law of that or any other jurisdiction shall be affected or impaired thereby.  Neither party's failure to exercise any rights under this Agreement will constitute or be deemed a waiver or forfeiture of those rights.
14. Entire Agreement; Amendment and Modification.  Save as expressly provided otherwise, this Agreement supersedes all other prior communications, negotiations and oral or written statements relating to its subject matter.  No change, modification, rescission, discharge, abandonment, or waiver of this Agreement shall be binding upon either party unless made in writing and signed on their behalf by their duly authorized representatives.  No conditions, usage or trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain, or supplement this Agreement shall be binding unless hereafter made in writing and signed by the parties.  No modification shall be affected by WWT's receipt or acceptance of Customer's purchase orders, shipping instruction forms, or other documentation containing terms at variance with or in addition to those set forth herein, all of which are objected to by WWT.  All typographical or clerical errors are subject to correction.

Attachment 1 to Exhibit A - OEM Resale

1. Price and Taxes.  The prices charged for the Products shall be as set forth in the SOW. All prices in the SOW are exclusive of any costs of any goods and services, sales, use, value added, excise, gross receipts, business and occupation or similar present or future taxes imposed by any governmental body on the sale, delivery, use or other handling of the Products or in connection with any related or contemplated transactions. Such taxes are the responsibility of Customer and may be billed to Customer as a separate line item on each invoice. Customer is responsible for identification of any taxes imposed after any Products are imported.
2. Products & Licensing. Products resold under this Attachment 1, as well as related maintenance or support services, will be governed by either the license agreement between Customer and the original equipment manufacturer (OEM) or, if no such agreement exists, the OEM's standard license and support agreements as provided by the OEM on its website or with the Product or which WWT will forward to Customer at the time of delivery of the Product when provided to WWT by the OEM.  WWT acknowledges that all such separate terms and conditions, rights and responsibilities by and between OEM and Customer will  pass to any order placed by Customer hereunder, provided that Customer acknowledges that WWT is not a party to any such terms between Customer and OEM and Customer agrees to look solely to the OEM for satisfaction of any and all license support claims or obligations related to that OEM's Product, but may request assistance from WWT with their claim, which assistance WWT shall use commercially  reasonable efforts to provide.
3. OEM Services.  WWT may act as a reseller of OEM Services to Customer.  OEM Services are sold only pursuant to the terms and conditions offered by the providers of such service, who are not agents or subcontractors of WWT. WWT MAKES NO WARRANTIES OR REPRESENTATIONS RELATED TO ANY OEM SERVICES. Except for the obligation to sell the Service, the third-party service provider is the only party responsible for providing OEM Services to Customer. Customer is directed to contact the OEM service provider directly with any issues, claims or damages related to such OEM Services, and hereby release WWT and affiliates from any and all claims arising from or relating to the purchase or provision of any OEM Services.
4. Warranty. Customer understands that WWT is not the manufacturer of the Products or the provider of any OEM Services.  To the extent transferable, WWT will pass through to Customer any warranty extended by the original manufacturer.  THE FOREGOING ARE THE SOLE AND EXCLUSIVE WARRANTIES GIVEN BY WWT WITH RESPECT TO THE OEM PRODUCTS AND SERVICES AND ARE IN LIEU OF AND EXCLUDE ALL OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. The sole and exclusive remedy of Customer for any breach of warranty under this Attachment 1 shall be the replacement or repair of the defective item, or a refund of the purchase price relating thereto, all at WWT's option.  Non-conforming Products may only be returned in accordance with the manufacturer's return policy, as in effect from time to time. Customer assumes all responsibility and liability for any loss, damage, or injury to persons or property arising directly or indirectly arising out of, or connected with, or resulting from the use of Products, either alone or in combination with other products/components.
5. Shipment and Delivery.  Shipments are made FCA (Incoterms 2010)OEM shipping point.  Title and risk of loss of damage and responsibility shall pass from WWT to Customer upon delivery to and receipt by carrier.  Any claims for shortages or damages suffered in transit are the responsibility of Customer and shall be submitted by Customer directly to the carrier.  Shortages or damages must be acknowledged and signed for at the time of delivery.  While WWT will use all reasonable commercial efforts to maintain the delivery date(s) acknowledged or quoted by WWT, all shipping dates are approximate and not guaranteed.  WWT reserves the right to make partial shipments.  WWT, at its option, shall not be bound to tender delivery of any Products for which Customer has not provided shipping instructions.  If the shipment of the Products is postponed or delayed by Customer for any reason, and WWT is not able to postpone or delay its purchase of such product from the OEM, Customer agrees to reimburse WWT for any and all costs and expenses resulting therefrom; and, if WWT is able and agrees to hold such Product for Customer, Customer will bear the risk of loss while it is in WWT's custody and control.
6. Payment Terms.  WWT will invoice customer upon receipt of the Purchase Order, and payment terms are net thirty (30) days from date of WWT's invoice in the currency specified in the SOW.
7. Returns and Cancellations.  Products may only be returned or cancelled in accordance with the applicable manufacturer's return policy.  In the event of approval of a return request, (i) any allowed outgoing prepaid freight costs will apply, (ii) all returns must be shipped freight prepaid at Customer's expense, and (iii) Customer must pay WWT's return charge.  Customer may cancel orders only upon reasonable advance written notice and upon WWT's approval and payment to WWT of WWT's cancellation charges which include, among other things, all costs and expenses incurred, and to cover commitments made by WWT and a reasonable profit thereon.  WWT's determination of such cancellation charges shall be conclusive.
8. Excuse of Performance.  If WWT determines that its ability to supply the total demand for the Products is hindered, limited or made impracticable due to a Force Majeure event, WWT may allocate its available supply of Products or such material (without obligation to acquire other supplies of any such Products or materials) among itself and its customers on such basis as WWT determines to be equitable without liability for any failure or performance which may result therefrom.

Attachment 2 to Exhibit A - Professional Services

1. Services.  WWT shall itself or through a subcontractor perform the services set forth in the SOW in accordance with the terms of this Attachment 2.  WWT shall assign a sufficient number of personnel to provide the Services.  Should any of WWT's personnel (each a "Consultant") be unable to perform the scheduled Services because of illness, resignation or other causes beyond WWT's control, WWT will replace such Consultant within a reasonable time, but WWT shall not be liable for failure to replace such Consultant within the schedule. WWT will perform Services during the hours specified in the SOW, Monday through Friday excluding WWT holidays.  Customer may request in writing extended hours beyond the normal hours of service at the prevailing surcharge rates. Customer shall furnish WWT, at Customer's expense, all technical data and information as may be determined by WWT to be necessary for the performance and delivery of the Services.  Customer shall grant WWT such access to its system as WWT may require for the performance of the Services, and Customer shall be responsible for ensuring that its system is configured and secure as may be required for the performance of the Services. WWT shall not be liable for any delay or failure to perform any of the Services set forth in a SOW or obligations set forth herein due to causes beyond its reasonable control; and performance times shall be extended for a period of time equivalent to the time lost because of such delay.
2. Payment Terms.  Customer agrees to pay for all Services performed by WWT in the amounts set forth in the SOW.  In addition to the fees for the Services prescribed under the SOW, Customer shall reimburse WWT for all reasonable out-of-pocket expenses, including lodging, travel and meals when such expenses are approved in writing in advance by Customer and are incurred in connection with WWT's performance of the Services.  Customer agrees to reimburse WWT for any special or unusual expenses incurred at Customer's request. Customer will be invoiced monthly for Services rendered in the prior month.  All invoices are due and payable in full upon receipt.  All charges and rates set forth in the SOW are exclusive of goods and services, sales, use, value added, excise, gross receipts, business and occupation or similar present or future taxes imposed by any governmental body on the provision or receipt of the Services or in connection with any related or contemplated transactions.  Such taxes are the responsibility of Customer and may be billed to Customer as a separate line item on each invoice. All charges and rates are subject to change by WWT upon ninety (90) days' prior written notice.
3. Control and Supervision.  While present on Customer's premises for the sole purpose of performing Services under the SOW, each Consultant shall abide by Customer's published policies and procedures (to the extent copies are provided to or available for review by WWT and each Consultant) and shall abide by Customer's reasonable directions which are consistent with the SOW.
4. Standard Services.  In the normal course of business, WWT routinely performs services ("Standard Services") for all of its customers, utilizing the same basic WWT intellectual property, skill sets, tools, know-how, and other methodologies, allowing WWT to provide better service to all of its customers. These Standard Services include, but are not limited to, the installation and configuration of hardware and software, proof of concepts, and consulting and advisory services. Therefore, any skill sets, tools, know-how, methodologies, and any other intellectual property rights owned by WWT ("WWT Intellectual Property") prior to the Effective Date or subsequently developed by WWT, whether under or independent of the SOW for itself, Customer or a third party shall remain in WWT's ownership and shall not become the property of Customer; provided, however, that Customer shall have the right to use such WWT Intellectual Property as necessary to its use and enjoyment of the Services.
5. Consultant(s). The parties recognize that WWT and any Consultant(s) provided under the SOW may perform similar Services from time to time for others.  Accordingly, this Agreement shall not prevent WWT from performing such similar Services or restrict WWT's use of the same Consultant(s). Customer and WWT acknowledge and agree that any Consultant(s) provided under the SOW are highly important to the success of WWT in fulfilling the intent of this Attachment 2.  Accordingly, Customer hereby agrees that it will not, either directly or indirectly, solicit, divert or hire, or attempt to solicit, divert or hire any Consultant(s) engaged in providing the Services under the SOW during the Contract Period and for a period of twelve (12) months after the date WWT last provided Services.
6. Disclaimer of Warranty.  THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING ANY WARRANTY AGAINST INFRINGEMENT, WITH RESPECT TO THE SERVICES OR INFORMATION FURNISHED UNDER THE SOW.  WWT DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE AND DOES NOT WARRANT THE RESULT OF ANY SERVICE OR THAT THE SERVICE WILL MEET CUSTOMER'S REQUIREMENTS.
7. Data Protection. WWT is not in the business of hosting, processing or storing Customer data, and will not have access to Customer data. As such, Customer will not provide to WWT or grant WWT access to, any personally identifiable information, protected health information, customer information or other structured personal information as defined by applicable data protection laws (collectively "Protected Data"). If Customer inadvertently provides Protected Data to WWT, it will promptly notify WWT, WWT will take commercially reasonably measures to secure such Protected Data, and Customer will indemnify and hold WWT harmless for such disclosure. If WWT will have access to aggregated or blind data on Customer's systems, WWT and Customer will agree upon the nature of such access in a separate written document if not addressed in the SOW.