STANDARD TERMS AND CONDITIONS FOR SALE OF GOODS AND SERVICES
Effective as of January 25, 2018
These Standard Terms and Conditions for the Sale of Goods and Services (the "Terms") are applicable to all quotes, bids, statements of work, sales of products and goods (the "Goods") and provisioning of services (the "Services") by Red Sky Solutions LLC ("Red Sky"), however, the price, quantity, scope of work, delivery location and other specifics for the Goods and Services may be separately agreed and/or set forth in a quote or statement of work delivered by Red Sky, an order issued by the applicable customer ("Customer") and accepted by Red Sky or some other written communication between Red Sky and the Customer other than those expressly excluded by the Agreement (such other applicable terms and conditions, together with these Terms, the "Agreement").
In the event of a conflict between these Terms and any term or condition in any other document, website, order or communication prepared or delivered by the Customer, these Terms shall control. No course of prior dealings, acceptance or acquiescence in a course of performance and no usage of the trade shall be relevant to supplement, explain or modify the Agreement. All representations, promises, warranties or statements by an agent or employee of Red Sky that differ in any way from the Agreement hereof shall be given no effect or force. No waiver or alteration of Terms shall be binding unless in writing signed by an authorized employee of Red Sky. Notwithstanding the foregoing, if Red Sky and Customer have separately negotiated and entered into a separate agreement signed by authorized representatives of both parties ("Separate Agreement"), such Separate Agreement shall control over any conflicting term or condition of the Agreement.
To the extent the Agreement requires the provisioning of services (excluding, in all cases, Third Party Solutions and the Workflow Application which terms are addressed below) by Red Sky ("Professional Services"), then in addition to the Governing Terms (below) the following terms and conditions apply unless expressly noted to the contrary elsewhere in the Agreement:
- For all Professional Services, unless otherwise specified in the Agreement, Red Sky will bill Customer through invoices issued to Customer on a monthly basis for Professional Services. For expense reimbursement, at Customer's request, an expense sheet will be provided and an original receipt or copy will be attached for each item. Customer shall pay Red Sky or object to all or a portion of the invoice within 30 days from the date of receipt of such invoice or according to the terms set forth elsewhere in the Agreement.
- EXCEPT FOR WARRANTIES EXPRESSLY STATED WITHIN THE AGREEMENT RELATING TO PROFESSIONAL SERVICES, RED SKY MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE PROFESSIONAL SERVICES, OR ANY RELATED DELIVERABLES, KNOW-HOW, OR THE USE OR PERFORMANCE OF PROFESSIONAL SERVICES. RED SKY EXPRESSLY DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW ANY AND ALL, IMPLIED, STATUTORY, ORAL OR OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT OR WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE.
- Red Sky may suspend the Professional Services at any time if Customer is late in making any payments as required hereunder or is otherwise in material breach of the Agreement.
- Customer will, at its own cost and expense, provide reasonable assistance to Red Sky such that Red Sky may perform the Professional Services in a timely manner. Red Sky shall not be required to provide any goods or services not expressly set forth in the Agreement. Any changes to the scope of Professional Services must be mutually agreed to in writing by both Red Sky and Customer.
- Customer acknowledges that Red Sky may have developed materials prior to entering into the Agreement or performing the applicable Professional Services, and may own intellectual property or proprietary rights in techniques and concepts that were not conceived or first produced by Red Sky in the performance of the Agreement ("Red Sky IP"). Red Sky IP is proprietary to Red Sky and shall remain Red Sky's exclusive property. Red Sky hereby grants to Customer a perpetual, worldwide, royalty free, paid-up, irrevocable, non-exclusive, transferable, sub-licensable license to Red Sky's IP to the extent it is incorporated in any Work Product (as defined below). If using the Work Product involves disclosure of the Work Product to a third party, Customer agrees: (a) that such disclosure will be in furtherance of a legitimate business need of Customer, (b) the Work Product will not be altered in any way, and (c) such disclosure will be non-public in nature and subject to confidentiality terms at least as restrictive as those of Customer to Red Sky. Customer agrees that the foregoing shall survive the termination of the Agreement.
SECURITY ASSESSMENT SERVICES
To the extent the Agreement requires the provisioning Professional Services by Red Sky to help assess or identify security risks (excluding, in all cases, Third Party Solutions and the Workflow Application which terms are addressed below) (the security assessment services, the "Security Assessment Services"), then in addition to the terms above relating to Professional Services and the Governing Terms (below) the following terms and conditions apply notwithstanding any language elsewhere to the contrary:
- Customer acknowledges, consents and agrees that (a) Red Sky will exploit vulnerabilities to gain access to systems or information contained on systems, and therefore, Red Sky will have no obligation to observe Customer's access, security or other policies, since a hostile hacker will not observe the same, (b) any outcome of the Security Assessment Services is limited to a point-in-time examination, (c) the outcome of any audits, assessments or testing by, and the opinions, advice, recommendations and/or certification of, Red Sky does not constitute any form of representation, warranty or guarantee that the assessed systems (or any other systems) are secure from every form of attack, even if Red Sky's recommendations are fully implemented, and (d) in examining Customer's compliance or non-compliance status, Customer's management is solely responsible for determining the scope of the Security Assessment Services, as well as the implementation of any course of action based on the Security Assessment Services.
WORK-FLOW TRACKING TOOL
To the extent the Agreement requires the provisioning of Red Sky's proprietary application to track the workflow of activities related to security assessments or other projects ("Workflow Application"), the following terms and conditions apply together with the Governing Terms (below) notwithstanding any language elsewhere to the contrary relating to the Workflow Application or its use:
- From time to time, Customer may request that its contractors also have access to the Workflow Application ("Invitees"), and to the extent such access is granted, the Invitees will be required to enter into Red Sky's then-current End User License Agreement for the Workflow Application. Customer hereby agrees that Red Sky shall have no liability and shall be indemnified and held harmless from any liabilities that arise as a result of granting Invitees access to the Workflow Application, including the sharing of any Customer Information (as defined below), Work Product or other findings contained therein.
- In connection with Customer's use of the Workflow Application, Customer must register for and maintain one or more account(s) (each, an "Account") and may provide certain information to Red Sky through such Account(s) ("Customer Information").
- As between Red Sky and Customer, Customer retains ownership of all Customer Information. Customer grants to Red Sky a non-exclusive, perpetual, irrevocable, royalty-free, worldwide, sublicensable, transferable license to use the Customer Information in the Workflow Application, for fulfilling its obligations under the Agreement, and for the purposes of enhancement of Customer's security measures.
- As between Red Sky and Customer, Customer is solely responsible for the accuracy, quality, integrity, and reliability of all Customer Information. Customer represents and warrants that all Customer Information: (a) is accurate and does not violate any intellectual property rights or other rights of a third party; (b) is not unlawful, threatening, abusive, libelous, defamatory, obscene, pornographic, profane or otherwise objectionable; (c) does not violate any applicable law or regulation; and (d) is accurate and complete in such a manner as not to include any omissions that reasonably could be concluded as misleading.
- As between Red Sky and Customer, Red Sky (or its licensees) is the sole owner of the Workflow Application, excluding Customer Information, any Work Product, and any documentation or specifications of the Workflow Application, including any intellectual property rights therein or thereunder, and Customer agrees to treat all such information as proprietary and confidential information of Red Sky pursuant to the non-disclosure and use restrictions Customer has with Red Sky.
- All access to and use of the Workflow Application by Customer will be only for the purpose of tracking security in connection with the project and services under the Agreement and Customer will not, and will not permit any third party to: (a) copy, license, sublicense, sell, resell, transfer, assign, distribute or otherwise make available to any third party other than Invitees permitted by Red Sky, the Workflow Application, or any of its contents, or any software, hardware, and other technology and methodologies underlying or utilized by Red Sky to make available, or otherwise made available through, the Workflow Application (collectively, the "Application Property"); (b) reverse engineer the Application Property; or (c) attempt to access the Workflow Application other than through Customer's Access Credentials. Customer will immediately notify Red Sky of any unauthorized use of any Customer Account. Customer will not, will not agree to, and will not authorize or encourage any third party to: (i) use the Workflow Application to upload, transmit or otherwise distribute any content that is unlawful, defamatory, harassing, abusive, fraudulent, obscene, contains viruses, or is otherwise objectionable as reasonably determined by Red Sky; (ii) upload, transmit or otherwise distribute content that infringes upon another party's intellectual property rights or other proprietary, contractual or fiduciary rights or obligations; or (iii) use the Workflow Application for any fraudulent or inappropriate purpose.
- Customer will not (a) use any automated means to access the Workflow Application or collect any information from the Workflow Application (including, without limitation, robots, spiders or scripts), or (b) frame the Workflow Application, utilize framing techniques, enclose any service mark, logo, or other proprietary information, place pop-up windows over its pages, or otherwise affect the display of pages within the Workflow Application.
- The Workflow Application is provided on an "AS IS" and "AS AVAILABLE" basis.
- Customer is responsible for all activities that occur through any Account or any activity accessed using any Account access verification information ("Access Credentials"). As such, Customer will keep Access Credentials in strict confidence and not share the Access Credentials with anyone else.
SALE OF GOODS
To the extent the Agreement requires the sale Goods, then in addition to the Governing Terms (below) the following terms and conditions apply unless expressly noted to the contrary elsewhere in the Agreement:
- Shipments are C.O.D. unless an open account has been approved and terms established to Red Sky's satisfaction. Customer shall pay Red Sky's shipping rates in addition to the sales price. Red Sky's primary carriers are Federal Express, Airborne Express and United Parcel Service.
- Red Sky shall pass along all manufacturer warranties to the end user which are applicable to the Goods sold ("Manufacturer Warranties"). While Red Sky is available to try to facilitate warranty issues with specific manufacturers, all remedies available with respect to a breach of the Manufacturer Warranties are provided directly by the manufacturer or its applicable third party reseller. All Manufacturer Warranties start from the invoice date from the applicable distributor or manufacturer to Red Sky. Red Sky offers no additional or direct warranties for the Goods. RED SKY EXPRESSLY DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW ANY AND ALL, IMPLIED, STATUTORY, ORAL OR OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT OR WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE.
- Damage identified upon receipt of the Good should be reported immediately to the carrier that delivered the Good. Customer shall inspect Goods received under the Agreement within 10 days following receipt of such Goods ("Inspection Period") and either accept or, only if any such Goods are Nonconforming Goods (as defined below), reject such Goods. If Customer discovers any Nonconforming Goods, Customer must request an authorization from Red Sky to return the Nonconforming Goods (the "Return Material Authorization"). In order for Customer to receive a Return Material Authorization, Customer shall provide Red Sky with the following information prior to expiration of the Inspection Period: (a) the part number or description of the Good, (b) the quantity of each Good to be returned, and (c) a detailed description of all defects and nonconformities. All defects and nonconformities that are not so specified will be deemed waived by Customer, and such Goods shall be deemed to have been accepted by Customer. Upon Customer's receipt of the Return Material Authorization from Red Sky, Customer shall return the Goods to Red Sky within 30 days and in accordance with the Return Material Authorization. If Customer timely requests a Return Material Authorization, and returns the Nonconforming Goods to Red Sky within 30 days and in accordance with the Return Material Authorization, Red Sky shall determine, in its reasonable discretion, whether the Goods are Nonconforming Goods. If, following receipt of the Goods in accordance with a Return Material Authorization, Red Sky determines that such Goods are Nonconforming Goods, Red Sky, in its sole discretion, shall either: (i) replace such Nonconforming Goods with conforming Goods; or (ii) refund to Customer such amount paid by Customer to Red Sky for such Nonconforming Goods returned by Customer to Red Sky. Customer shall ship, at Red Sky's request and expense, all Nonconforming Goods to Red Sky's designated location. If Red Sky exercises its option to replace Nonconforming Goods, Red Sky shall ship the replacement Good back to the Customer. THE REMEDIES SET FORTH IN THIS PARAGRAPH ARE CUSTOMER'S EXCLUSIVE REMEDIES FOR THE DELIVERY OF NONCONFORMING GOODS FROM RED SKY. "Nonconforming Goods" means any Goods received by Customer from Red Sky pursuant to the Agreement that: (A) do not conform to the Goods procured under the Agreement; (B) do not conform to the Manufacturer Warranties; or (C) exceed (and then only to the extent the goods exceed) the quantity of Goods ordered by Customer pursuant to the Agreement. Where the context requires, Nonconforming Goods are deemed to be Goods for purposes of the Agreement.
- All sales are final. Title to Goods passes upon Customer's payment in full for the Goods. Risk of loss or damage passes to Customer upon delivery to the carrier. Under limited circumstances, Red Sky may agree to accept the return of Goods which are not otherwise deemed to be Nonconforming Goods. Specifically, the request must be made within 90 days from the date of invoice, the Good must be currently stocked, unopened and unused. Integrated, special order, discontinued, end-of-line and old Goods cannot be returned.
THIRD PARTY SOLUTIONS
To the extent the Agreement requires the provisioning of third party proprietary hosted solutions or software applications (e.g., AWS, Microsoft Azure, Splunk, Duo Security, Okta) ("Third Party Solutions"), the following terms and conditions apply together with the Governing Terms (below), notwithstanding any language elsewhere to the contrary elsewhere in the Agreement:
- Red Sky provides no rights to access or use the Third Party Solutions other than those granted by the applicable third party provider of the Third Party Solution(s) ("Third Party Provider"). As required by the applicable Third Party Provider relating to Third Party Solutions, and the support, access and use thereof, Customer shall execute and agree to, and shall cause end users to execute and agree to, any applicable terms and conditions for the access, use, maintenance and support of the Third Party Solutions ("Solution Provider Agreement").
- Customer shall access and use the Third Party Solutions strictly in accordance with the Solution Provider Agreement. Red Sky provides the Third Party Solutions solely on an "AS IS" and "AS AVAILABLE" basis, and while Red Sky may be available or offer to try to facilitate and help Customer resolve issues relating to the Third Party Solutions, Customer acknowledges and agrees that its sole remedies exclusively shall be with the Third Party Providers pursuant to the Solution Provider Agreements.
In addition to the applicable terms and conditions specified above, or elsewhere in the Agreement, the following terms and conditions apply unless expressly and unequivocally agreed elsewhere in the Agreement:
- All pricing is subject to change without notice. Past due balances are subject to a standard monthly fee of the greater of $55 per invoice or a 1.75% monthly interest charge (or if the foregoing is not permitted by law, then the maximum amount permitted by law). Customer shall not have, and acknowledges that it does not have, any right, under the Agreement, or any other agreement, or under law, to withhold, offset, recoup or debit any amounts owed (or to become due and owing) to Red Sky. Notwithstanding other provisions of the Agreement, Customer shall be responsible for any costs Red Sky incurs in enforcing collection of any amounts due under the Agreement, including reasonable attorneys' fees, court costs, or collection agency fees.
- Each party agrees to hold all Confidential Information received from the other in strict confidence and not to disclose such Confidential Information to any third party, or use such Confidential Information other than in the performance and scope of the Agreement, without the written permission of the other. "Confidential Information" shall mean any information, in whatever form, concerning the organization, business, technology, customers, or finances of a party that either party may provide to the other party or which either party may otherwise obtain during the course of the Services provided pursuant to the Agreement; provided, however, Confidential Information shall not include information that the receiving party shows through documentary evidence is: (a) part of the public domain without fault of the disclosing party; (b) rightfully obtained by either party independent from a disclosure made pursuant to or in connection with the Agreement and without a restriction on further disclosure; or (c) independently developed by the receiving party without reference to the Confidential Information of the disclosing party. Notwithstanding the foregoing, (i) neither party is restricted from disclosing Confidential Information that is required to be disclosed by law or any governmental authority, provided that the receiving party notifies the disclosing party as soon as reasonably possible of such compelled disclosure and gives the disclosing party the opportunity to defend against such disclosure or obtain a protective order in connection therewith; and (ii) Red Sky may disclose Confidential Information received from Customer to its subcontractors or other third parties who or which are involved in providing the Goods or Services hereunder and have a need to know such Confidential Information to carry out their responsibilities.
- RED SKY SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OR INTERRUPTION OF BUSINESS, LOST PROFITS, LOSS OF GOODWILL, LOSS OF REVENUE, LOSS OF ECONOMIC ADVANTAGE, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ETC.) ARISING OUT OF OR RELATED TO THE GOODS, THE SERVICES, ANY DELIVERABLES OR THE KNOW-HOW, THE USE OR PERFORMANCE OF SUCH GOODS, SERVICES, DELIVERABLES AND KNOW-HOW, OR THE AGREEMENT, WHETHER BASED ON BREACH OF CONTRACT, TORT, PROPRIETARY RIGHTS INFRINGEMENT, PRODUCT LIABILITY OR OTHERWISE, EVEN IF RED SKY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE MAXIMUM AGGREGATE LIABILITY OF RED SKY FOR DAMAGES, REGARDLESS OF THE FORM OF ACTION, SHALL NOT EXCEED THE AMOUNT EQUAL TO THE FEES ACTUALLY PAID BY CUSTOMER AND RECEIVED BY RED SKY UNDER THE AGREEMENT IN THE 12 MONTHS PRECEDING THE INITIAL CLAIM THAT ARISES AND BRINGS LIABILITY UNDER THE AGREEMENT.
- In the event that one or more of the provisions contained in the Agreement shall be held invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not affect any other provision of the Agreement, and all other provisions shall remain in full force and effect.
- Red Sky shall not be liable for any failure or delay caused by events beyond Red Sky's reasonable control.
- Customer shall conform to all applicable laws. Customer shall indemnify and hold harmless Red Sky from and against any and all losses, causes of action, claims, allegations, liabilities, costs, damages and expenses whatsoever (including, without limitation, reasonable attorneys' fees), regardless of the form of action ("Claim"), and shall promptly reimburse Red Sky for all Claims, arising out of or in connection with: (a) any Claim that any text, work, material or content requested, specified or provided by or on behalf of Customer, including without limitation, any Customer Information, for use in conjunction with the Goods or Services or incorporated into any deliverables violates or infringes any applicable regulation or proprietary or intellectual property right of any third party; (b) any third party Claim caused by, relating to or arising out of the sale, conveyance or other disposition (or attempt to do the same) of goods or services in connection with use of the Goods, Services or deliverables provided hereunder; or (c) any third party Claim caused by, relating to or arising out of an alleged breach of any representation, warranty, covenant or other term or condition of the Agreement by Customer.
- Neither the Agreement nor any of the rights and obligations created in the Agreement may be assigned, in whole or in part, by either party, without the prior written consent of the other party, except that (a) either party may assign the Agreement to any entity which by merger, share exchange, combination or consolidation of any type, operation of law, asset purchase or otherwise, acquires substantially all of the business of such party, so long as prior to the effective date of any such assignment or transfer such successor, the transferee or assignee expressly agrees, to assume and fully perform all of the assigning party's obligations under the Agreement, and (b) Red Sky may subcontract its obligations hereunder. Notwithstanding anything herein to the contrary, in no event shall Customer assign the Agreement to a competitor of Red Sky. Any assignment contrary to the foregoing is void ab initio. The Agreement shall be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns.
- For one year from the expiration or termination of the Agreement, Red Sky and Customer agree neither party shall directly or indirectly hire for employment, employ, engage the Services or otherwise retain personnel (including contractors) of the other party during the performance of Services under the Agreement.
- The parties hereto are independent contractors, and nothing herein shall be deemed to cause an agency, joint venture, employment or partnership between the parties hereto. Neither party has the authority to bind the other to any third party.
- The Agreement is made under and will be construed in accordance with the laws of the State of Utah, other than such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of Utah. Any suit to enforce any provision of the Agreement, or arising out of or based upon the Agreement, shall be brought exclusively in the state or federal courts located in Salt Lake City, Utah. Each party hereby agrees that such courts shall have in personam jurisdiction and venue with respect to such party, and each party hereby submits to the in personam jurisdiction and venue of such courts and waives any objection based on inconvenient forum.