1. Definitions
1.1 Buyer means the person or entity purchasing Goods or Services under these Terms.
1.2 Goods means the hardware, equipment, software licenses, and related items sold hereunder.
1.3 Services means consulting, implementation, configuration, training, managed services, and other professional services provided by Seller.
1.4 Deliverables means any software, documentation, reports, configurations, or work product created by Seller in performing Services.
1.5 Order means Buyer's purchase order or acceptance of Seller's quote for Goods or Services.
1.6 Seller means Flatiron Networks, Inc.
1.7 SOW means a Statement of Work describing Services to be performed, deliverables, timeline, and fees.
2. Formation of Contract
2.1 These Terms govern every Order for Goods or Services. Any additional or different terms proposed by Buyer are rejected unless expressly agreed in writing by Seller.
2.2 No binding contract arises until Seller issues an order confirmation, executes an SOW, or ships Goods, whichever occurs first.
2.3 Seller reserves the right to discontinue or modify products and to allocate Goods in case of supply constraints.
3. Quotes and Orders
3.1 Quotes expire 30 days after issuance unless otherwise stated in the quote. Acceptance of a quote constitutes an Order under these Terms.
3.2 For Services, a signed SOW is required and incorporates these Terms by reference.
4. Price, Payment and Taxes
4.1 Pricing. Prices are as stated in Seller's quote, SOW, or confirmation and are exclusive of sales tax, use tax, value-added tax, import/export duties, freight, insurance, and other charges unless otherwise agreed.
4.2 Payment Terms. Payment terms shall be as set forth in Seller's written confirmation or SOW. Standard payment terms are Net 30 unless otherwise agreed. If no payment terms are specified, payment is due upon Order placement.
4.2.1 Disputed Invoices. Buyer must notify Seller in writing within ten (10) days of invoice date of any good-faith dispute, specifying the disputed amount and reason. Buyer shall pay all undisputed amounts when due.
4.3 Taxes.
(a) All prices are exclusive of taxes. Buyer shall pay all applicable sales, use, value-added, import/export, and other taxes, duties, or fees (excluding Seller's income taxes) associated with the purchase of Goods or Services.
(b) If Seller is required by law to collect any such taxes, they will be added to the invoice and Buyer shall pay them along with the purchase price, unless Buyer provides Seller with a valid exemption certificate or resale certificate prior to invoicing.
(c) If Buyer provides an exemption certificate or resale certificate, Buyer represents that such certificate is valid and applicable to the transaction. Buyer shall indemnify and hold Seller harmless from any taxes, penalties, or interest assessed against Seller as a result of Buyer's improper use of an exemption certificate or failure to pay applicable use taxes.
(d) For international transactions, Buyer is responsible for all import duties, customs fees, and foreign taxes. Buyer shall act as importer of record and handle all customs clearance.
4.4 Late Payment. Late payments incur interest at the lesser of 1.5% per month or the maximum permitted by law, plus all reasonable collection costs, including attorney fees.
4.5 Expenses. For Services, Buyer shall reimburse Seller for reasonable, pre-approved travel and other out-of-pocket expenses incurred in performing Services.
5. Credit Approval; Setoff
5.1 Credit Approval. All Orders are subject to Seller's credit approval. Seller may, in its sole discretion: (a) require prepayment, deposit, or letter of credit; (b) modify payment terms; or (c) decline Orders if Buyer's creditworthiness is unsatisfactory.
5.2 Setoff. Buyer may not withhold or set off payment of any invoice except as expressly authorized in writing by Seller or as provided in Section 4.2.1.
6. Delivery; Title and Risk; Inspection
6.1 Delivery Terms. Delivery terms for Goods are FCA Seller's warehouse (Incoterms 2020) unless otherwise specified. Buyer pays all freight, insurance, and import/export duties.
6.2 Title and Risk. Title and risk of loss for Goods pass to Buyer upon Seller's delivery to the carrier. Buyer must insure Goods from that point.
6.3 Inspection and Acceptance. Buyer must inspect Goods within five (5) business days of delivery and notify Seller in writing of any shortage, damage, or nonconformity. Failure to so notify constitutes acceptance, except for latent defects not discoverable by reasonable inspection.
6.4 Delivery Dates. Delivery dates are estimates only and are not guaranteed. Seller shall not be liable for delays in delivery.
7. Export Compliance
7.1 Buyer shall comply with all applicable U.S. and foreign export and import laws and regulations, including the Export Administration Regulations (EAR) and International Traffic in Arms Regulations (ITAR).
7.2 Buyer shall not export, re-export, or transfer the Goods, Services, or any technical data derived therefrom without all required U.S. and foreign government licenses and authorizations.
7.3 Buyer represents that it and its end users are not subject to U.S. sanctions or on any denied parties list.
8. Returns, Cancellations and Restocking
8.1 Return Authorization Required. All returns and cancellations require prior written authorization from Seller. Buyer must request return authorization within thirty (30) days of delivery by contacting Seller in writing.
8.2 Manufacturer Approval. Returns and cancellations of Goods are subject to manufacturer approval. Seller will work with the manufacturer on Buyer's behalf to request return authorization. Returns are subject to manufacturer-imposed restocking fees (typically 15-25% of purchase price), return shipping costs, and other charges.
8.3 Condition Requirements. Goods must be returned in original packaging, unused, and in resalable condition. Custom-configured, special-order, or software items are non-returnable.
8.4 RMA Required. No returns will be accepted without a valid Return Merchandise Authorization (RMA) number issued by Seller. Returns shipped without prior authorization may be refused and returned to Buyer at Buyer's expense.
8.5 Services. Services fees are non-refundable once work has commenced, except as specified in the applicable SOW.
9. Professional Services
9.1 Scope and Performance. Services are performed on a time-and-materials or fixed-fee basis as specified in the applicable SOW. Seller shall perform Services in a professional and workmanlike manner.
9.2 Buyer Cooperation. Buyer shall provide reasonable cooperation, access to systems and personnel, and timely decisions necessary for Seller to perform Services. Delays caused by Buyer's failure to cooperate may result in additional fees.
9.3 Change Orders. Any changes to the scope of Services require a written change order signed by both parties, which may adjust fees and timeline.
9.4 Acceptance of Deliverables. Buyer shall have ten (10) business days after delivery of Deliverables to test and notify Seller of any failure to conform to the specifications in the SOW. If Buyer does not provide such notice within the acceptance period, Deliverables are deemed accepted.
9.5 Deliverables Warranty. Seller warrants that Deliverables will substantially conform to the specifications in the SOW for thirty (30) days after acceptance. Seller's sole obligation for breach of this warranty is to re-perform the non-conforming Services or, if Seller cannot do so, to refund the fees paid for the non-conforming Deliverables.
9.6 Termination of Services. Either party may terminate a Services engagement with thirty (30) days' written notice. Buyer shall pay for all Services performed and expenses incurred through the termination date. If Buyer terminates for convenience, Buyer shall also pay any cancellation fees specified in the SOW.
10. Intellectual Property Rights
10.1 Seller's IP. Seller retains all right, title, and interest in and to all pre-existing intellectual property, tools, methodologies, and know-how used in performing Services ("Seller IP").
10.2 License to Deliverables. Subject to Buyer's payment in full, Seller grants Buyer a non-exclusive, non-transferable, perpetual license to use Deliverables solely for Buyer's internal business purposes. This license does not include the right to modify, sublicense, or distribute Deliverables.
10.3 Third-Party Components. Deliverables may include third-party components subject to open source or other third-party licenses. Buyer's use of such components is subject to the applicable license terms.
10.4 Feedback. Buyer grants Seller a perpetual, royalty-free license to use any feedback, suggestions, or ideas Buyer provides regarding Seller's products or Services.
11. Limited Warranty for Goods
11.1 Manufacturer Warranty Pass-Through. Seller passes through only the manufacturer's standard warranty for Goods. Buyer must pursue any warranty claims directly with the manufacturer in accordance with the manufacturer's warranty terms and procedures.
11.2 Seller Disclaimer. SELLER MAKES NO WARRANTIES REGARDING GOODS AND DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SELLER DOES NOT WARRANT THAT GOODS WILL MEET BUYER'S REQUIREMENTS OR OPERATE WITHOUT INTERRUPTION OR ERROR.
11.3 No Warranty for Services Beyond Section 9.5. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 9.5, SERVICES AND DELIVERABLES ARE PROVIDED "AS-IS" WITHOUT WARRANTY OF ANY KIND.
11.4 Exclusive Remedy. Buyer's exclusive remedy for any breach of warranty is as provided in Section 9.5 for Services or by the manufacturer for Goods.
12. Limitation of Liability
12.1 Consequential Damages Waiver. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA, GOODWILL, OR BUSINESS INTERRUPTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.2 Liability Cap. SELLER'S TOTAL CUMULATIVE LIABILITY FOR ANY AND ALL CLAIMS RELATED TO GOODS OR SERVICES SHALL NOT EXCEED THE AMOUNT PAID BY BUYER FOR THE SPECIFIC GOODS OR SERVICES GIVING RISE TO THE CLAIM IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM.
12.3 Essential Purpose. The parties agree that these limitations are essential elements of the bargain and that Seller would not provide Goods or Services without these limitations.
12.4 Exceptions. The limitations in this Section 12 do not apply to: (a) either party's indemnification obligations under Section 15; (b) Buyer's payment obligations; (c) either party's gross negligence or willful misconduct; or (d) liabilities that cannot be limited by applicable law (including for federal government contracts as specified in Section 16).
13. Force Majeure
Neither party shall be liable for delay or failure to perform due to causes beyond its reasonable control, including acts of God, war, terrorism, civil unrest, labor disputes, epidemics, pandemics, government actions or regulations, supply chain disruptions, telecommunications failures, or natural disasters. The affected party must notify the other promptly and make reasonable efforts to resume performance. If performance is suspended for more than sixty (60) days, either party may terminate the affected Order without liability.
14. Confidentiality
14.1 Definition. "Confidential Information" means non-public business, technical, or financial information disclosed by one party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is marked confidential or should reasonably be understood to be confidential given its nature and the circumstances of disclosure.
14.2 Obligations. Receiving Party agrees to: (a) protect Confidential Information using the same degree of care it uses for its own confidential information, but no less than reasonable care; (b) use Confidential Information only for purposes of performing under these Terms; and (c) not disclose Confidential Information to third parties except to employees, contractors, or advisors who need to know and are bound by confidentiality obligations.
14.3 Exceptions. Confidential Information does not include information that: (a) is or becomes publicly available through no breach by Receiving Party; (b) was rightfully known to Receiving Party without confidentiality restrictions prior to disclosure; (c) is rightfully received from a third party without confidentiality restrictions; or (d) is independently developed by Receiving Party without use of the Confidential Information.
14.4 Compelled Disclosure. Receiving Party may disclose Confidential Information to the extent required by law or court order, provided Receiving Party gives Disclosing Party prompt notice and reasonable assistance to contest such disclosure.
14.5 Return or Destruction. Upon request or termination of the relationship, Receiving Party shall return or destroy all Confidential Information in its possession.
14.6 Duration. This confidentiality obligation survives for three (3) years after disclosure of the Confidential Information.
15. Indemnification
15.1 Mutual Indemnification. Each party ("Indemnifying Party") shall indemnify, defend, and hold harmless the other party, its officers, directors, employees, and agents ("Indemnified Party") from and against any third-party claims, damages, losses, and expenses (including reasonable attorney fees) arising from:
(a) The Indemnifying Party's gross negligence or willful misconduct;
(b) The Indemnifying Party's violation of applicable laws or regulations; or
(c) The Indemnifying Party's infringement of third-party intellectual property rights.
15.2 Seller's Additional Indemnity. Seller shall additionally indemnify Buyer for claims that Deliverables created solely by Seller (excluding third-party components) infringe a U.S. patent, copyright, or trademark. If such a claim occurs or is likely, Seller may, at its option: (a) obtain the right for Buyer to continue using the Deliverables; (b) modify the Deliverables to be non-infringing; or (c) refund the fees paid for the infringing Deliverables and terminate Buyer's license.
15.3 Buyer's Additional Indemnity. Buyer shall additionally indemnify Seller for: (a) claims arising from Buyer's use of Goods or Services in violation of these Terms or applicable law; (b) claims arising from Buyer's products, services, or business operations; and (c) tax liabilities arising from Buyer's improper use of exemption certificates as specified in Section 4.3(c).
15.4 Procedures. The Indemnified Party must: (a) promptly notify the Indemnifying Party in writing of any claim; (b) give the Indemnifying Party sole control of the defense and settlement (provided settlements do not impose obligations on the Indemnified Party without its consent); and (c) provide reasonable cooperation in the defense at Indemnifying Party's expense.
15.5 Exclusive Remedy. This Section 15 states each party's exclusive remedy and liability for intellectual property infringement claims.
16. Data Privacy and Security
16.1 Compliance. Each party shall comply with all applicable data protection and privacy laws, including but not limited to the California Consumer Privacy Act (CCPA), General Data Protection Regulation (GDPR) where applicable, and other state and federal privacy laws.
16.2 Data Processing. To the extent Seller processes personal data or personal information on Buyer's behalf in connection with Services, Seller acts as a "service provider" or "processor" (as defined under applicable law). Seller shall:
(a) Process such data only as instructed by Buyer and as necessary to provide Services;
(b) Implement and maintain reasonable technical and organizational security measures to protect the data;
(c) Not sell or share (as defined by CCPA) Buyer's data;
(d) Not retain, use, or disclose the data for any purpose other than performing Services;
(e) Make available to Buyer information necessary to demonstrate compliance with applicable data protection obligations; and
(f) Delete or return Buyer's data upon termination, except where retention is required by law.
16.3 Security. Seller maintains commercially reasonable administrative, physical, and technical safeguards to protect data in its possession or control. Upon Buyer's reasonable request, Seller will provide information about its security practices.
16.4 Breach Notification. Seller shall notify Buyer without undue delay, and in no event later than forty-eight (48) hours, after discovering any unauthorized access, use, or disclosure of Buyer's data in Seller's possession or control that compromises the security, confidentiality, or integrity of such data. Seller shall reasonably cooperate with Buyer in investigating and remediating any such incident.
16.5 Subprocessors. Seller may engage subcontractors to process data, provided such subcontractors agree to data protection obligations substantially similar to those in this Section 16.
16.6 Data Protection Addendum. If required by applicable law, the parties agree to execute a separate Data Processing Addendum containing additional terms required for GDPR or other privacy law compliance.
17. Federal Government Sales
17.1 Applicability. This Section 17 applies if Buyer is a U.S. federal government agency or if Goods or Services are purchased for use in performance of a U.S. federal government contract.
17.2 FAR Clauses. The following Federal Acquisition Regulation (FAR) clauses are incorporated by reference (full text available at www.acquisition.gov):
(a) FAR 52.212-4, Contract Terms and Conditions—Commercial Products and Commercial Services (current version).
(b) FAR 52.212-5, Contract Terms and Conditions Required to Implement Statutes or Executive Orders—Commercial Products and Commercial Services (current version).
(c) Any FAR clauses referenced in FAR 52.212-5(b) and (c) that are applicable based on the value and nature of the Order.
17.3 DFARS Clauses. For Department of Defense (DoD) contracts, applicable Defense Federal Acquisition Regulation Supplement (DFARS) clauses are also incorporated by reference, including DFARS 252.212-7001.
17.4 Conflicts. To the extent any provision of these Terms conflicts with mandatory FAR or DFARS clauses incorporated by law into federal government contracts, the FAR or DFARS clauses shall control, but only to the minimum extent necessary.
17.5 Limitation of Liability Exception. The limitations of liability in Section 12 shall not apply to the extent prohibited by applicable federal law or regulation governing contracts with federal agencies.
17.6 Commercial Item. Goods and Services are commercial items as defined in FAR 2.101.
18. Software and Licenses
18.1 Third-Party Software. To the extent Seller provides third-party software (including embedded software in hardware), such software is licensed, not sold, to Buyer. Buyer's use is subject to the applicable third-party end-user license agreement ("EULA").
18.2 No Software Warranty from Seller. Seller makes no warranty regarding third-party software and is not responsible for software functionality, compatibility, support, maintenance, or updates, except to the extent Seller is contractually obligated to provide such support under a separate support agreement.
18.3 License Compliance. Buyer is responsible for ensuring compliance with all software license terms, including volume licensing, user limits, and license metrics. Buyer shall indemnify Seller for any claims arising from Buyer's software license violations.
18.4 Open Source Software. Deliverables may include open source software components. Use of such components is subject to the applicable open source license terms (e.g., MIT, Apache, GPL). Seller will disclose the presence of open source components requiring attribution or having copyleft provisions upon Buyer's request.
19. Governing Law and Venue
19.1 Governing Law. This Agreement is governed by the laws of the State of Colorado without regard to its conflict-of-law rules. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
19.2 Venue and Jurisdiction. Buyer and Seller consent to the exclusive jurisdiction and venue of the state and federal courts located in Broomfield County, Colorado for any disputes arising under or relating to this Agreement. Each party waives any objection to venue or personal jurisdiction in those courts.
19.3 Mediation. Before initiating litigation (except for claims seeking equitable relief), the parties agree to attempt to resolve disputes through non-binding mediation conducted in Denver, Colorado. Each party shall bear its own costs and the parties shall share mediator fees equally. Either party may proceed to litigation if the dispute is not resolved within sixty (60) days of the mediation request.
19.4 Attorney Fees. In any action to enforce these Terms, the prevailing party shall be entitled to recover its reasonable attorney fees and costs.
19.5 Exception for Federal Government Contracts. Sections 19.2 and 19.3 do not apply to disputes arising under contracts with U.S. federal government agencies, which shall be governed by the Contract Disputes Act and applicable FAR clauses.
20. Miscellaneous
20.1 Assignment. Neither party may assign this Agreement without the other's prior written consent (not to be unreasonably withheld), except Seller may assign to an affiliate, successor, or in connection with a merger, acquisition, or sale of substantially all assets related to the business covered by this Agreement.
20.2 No Third-Party Beneficiaries. This Agreement is for the sole benefit of Buyer and Seller and gives no rights to any other person or entity, except that manufacturers are intended third-party beneficiaries of the warranty disclaimers and limitations of liability concerning Goods.
20.3 Survival. Sections 4 (payment obligations), 9.5, 10, 11, 12, 14, 15, 16, 18, 19, and this Section 20 shall survive expiration or termination of this Agreement.
20.4 Severability. If any provision of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, that provision shall be enforced to the maximum extent permissible, and the remaining provisions shall remain in full force and effect.
20.5 Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by the waiving party. No waiver shall constitute a waiver of any other provision or any subsequent breach.
20.6 Notices. All notices required or permitted under this Agreement must be in writing and delivered by: (a) email to the address specified in the Order, quote, or SOW (with confirmation of receipt); (b) certified or registered mail, return receipt requested; or (c) nationally recognized overnight courier. Notices are effective upon receipt or, if delivery is refused or cannot be completed, upon the first attempted delivery.
20.7 Relationship of Parties. The parties are independent contractors. Nothing in this Agreement creates a partnership, joint venture, agency, or employment relationship. Neither party has authority to bind the other.
20.8 Entire Agreement. These Terms, together with any applicable quote, Order, SOW, or other document expressly incorporated by reference, constitute the entire agreement between the parties and supersede all prior or contemporaneous negotiations, discussions, understandings, or agreements, whether written or oral, regarding the subject matter hereof.
20.9 Amendments. These Terms may be amended only by a written document signed by authorized representatives of both parties. Seller may update these Terms from time to time by posting revised Terms on its website, with such revisions applying to Orders placed after the effective date of the revision.
20.10 Interpretation. Section headings are for convenience only and do not affect interpretation. "Including" means "including without limitation." "Days" means calendar days unless specified as business days.
20.11 Order of Precedence. In the event of a conflict between documents, the order of precedence is: (1) signed SOW or amendment; (2) Order or quote; (3) these Terms.
20.12 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and together shall constitute one and the same instrument. Electronic signatures shall have the same force and effect as original signatures.