Booz Allen Commerce Portal
EFFECTIVE DATE September 2016
You may order services (collectively, "Services") from us at the Site. Should You execute a Statement of Work to purchase Services at this Site, each Statement of Work hereby incorporates these TOUs and constitutes a separate agreement with respect to the Services performed. Booz Allen, or any of its Affiliates, may execute a Statement of Work. In the event of an addition to or a conflict between any term or condition of the Statement of Work and these TOUs, these TOUs will control, except as expressly amended in the applicable Statement of Work by specific reference to this Agreement. Each such amendment will be applicable only with respect to such Statement of Work and not to future Statements of Work. Changes to the scope of the Services described in a Statement of Work will be made only in a writing executed by authorized representatives of both parties. We will have no obligation to commence work in connection with any such change, unless and until the change is agreed upon in that writing executed by both parties. All such changes to the scope of the Services will be governed by these TOUs and the applicable Statement of Work. Each Statement of Work may be signed in separate counterparts each of which shall be deemed an original and all of which together will be deemed to be one original.
DELIVERY AND LOSS
If You provide us with Your carrier account number or selects a carrier other than a carrier that regularly ships for us, title to Services and risk of loss or damage during shipment pass from us to You upon delivery to the carrier (F.O.B. Origin, freight collect). For all other shipments, title to Products and risk of loss or damage during shipment pass from us to You upon delivery to the specified destination (F.O.B. Destination, freight prepaid and added). Notwithstanding the foregoing, title to software will remain with the applicable licensor(s), and Your rights therein are contained in the license agreement between such licensor(s) and You.
WORK PRODUCT: LIMITED LICENSE
Your sole right to the work product, materials and other deliverables to be provided or created (individually or jointly) in connection with the Services, including but not limited to, all inventions, discoveries, methods, processes, formulae, ideas, concepts, techniques, know-how, data, designs, models, prototypes, works of authorship, computer programs, proprietary tools, methods of analysis and other information (whether or not capable of protection by patent, copyright, trade secret, confidentiality, or other proprietary rights) or discovered in the course of performance of this Agreement that are embodied in such work or materials ("Work Product") will be, upon payment in full, a non-transferable, non-exclusive, royalty-free license to use such Work Products solely for Your internal use. You will have no ownership or other property rights thereto, and You shall have no right to use any such Work Product for any other purpose whatsoever. You acknowledge that we may incorporate intellectual property created by third parties into the Work Product ("Third Party Intellectual Property"). You agree that Your right to use the Work Product containing Third Party Intellectual Property may be subject to the rights of third parties and limited by agreements with such third parties.
YOUR COOPERATION WITH US
We may perform the Services at Your place of business, at our own facilities or such other locations as the parties deem appropriate. When the Services are performed at Your premises, we will attempt to perform such Services within Your normal business hours unless otherwise jointly agreed to by the parties. You will also provide us access to Your staff and any other resources (and when the Services are provided at another location designated by You, the staff and resources at such location) that we determine are useful or necessary for us to provide the Services. When the Services are provided on Your premises or at another location designated by You, You agree to maintain adequate insurance coverage to protect us and Your premises and to indemnify and hold us and our Affiliates, and our and their agents and employees harmless from any loss, cost, damage or expense (including, but not limited to, attorneys' fees and expenses) arising out of any product liability, death, personal injury or property damage or destruction occurring at such location in connection with the performance of the Services, other than solely as a result of our gross negligence or willful misconduct.
PRICE CHANGES AND SERVICES UNAVAILABILITY
We reserve the right to make adjustments to pricing and Services for reasons including, but not limited to, changing market conditions, discontinuation, unavailability, price changes, supplier price changes and errors in advertisements. All orders are subject to Services availability and the availability of Personnel to perform the Services. Therefore, we cannot guarantee that it will be able to fulfill Your orders. If Services are being performed on a time and materials basis, any estimates provided by us are for planning purposes only.
LIMITED WARRANTIES AND DISCLAIMERS
WE AND OUR AFFILIATES HEREBY EXPRESSLY DISCLAIM ALLWARRANTIES EITHER EXPRESS OR IMPLIED, RELATED TO PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF TITLE, ACCURACY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF NONINFRINGEMENT, OR ANY WARRANTY RELATING TO THIRD PARTY SERVICES. THE DISCLAIMER CONTAINED IN THIS PARAGRAPH DOES NOT AFFECT THE TERMS OF ANY MANUFACTURER'S WARRANTY. YOU EXPRESSLY WAIVE ANY CLAIM THAT IT MAY HAVE AGAINST US AND/OR OUR AFFILIATES BASED ON ANY PRODUCT LIABILITY OR INFRINGEMENT OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHTS (EACH A "CLAIM") WITH RESPECT TO ANY SERVICE AND ALSO WAIVE ANY RIGHT TO INDEMNIFICATION FROM US OR OUR AFFILIATES AGAINST ANY SUCH CLAIM MADE AGAINST YOU BY A THIRD PARTY. YOU ACKNOWLEDGE THAT NO EMPLOYEE OF OURS OR OUR AFFILIATES IS AUTHORIZED TO MAKE ANY REPRESENTATION OR WARRANTY ON BEHALF OF US OR ANY OF ITS AFFILIATES THAT IS NOT IN THIS AGREEMENT.
WE MAKE NO WARRANTIES TO YOU, AND YOU HEREBY ACKNOWLEDGE THAT WE MAKE NO WARRANTIES IN REGARD TO THE APPLICABILITY OF ALL LAWS AND REGULATIONS AFFECTING, WITHOUT LIMITATION THE MANUFACTURE, PERFORMANCE, SALE, PACKAGING AND LABELLING OF THE SERVICES WHICH ARE IN FORCE WITHIN THE YOUR TERRITORY. YOU FURTHER ACKNOWLEDGE AND AGREE THAT WE MAKES NO REPRESENTATIONS, WARRANTIES OR ASSURANCES THAT THE SERVICES ARE DESIGNED FOR OR SUITABLE FOR USE IN ANY HIGH RISK ENVIRONMENT, INCLUDING BUT NOT LIMITED TO AIRCRAFT OR AUTOMOBILE SAFETY DEVICES OR NAVIGATION, LIFE SUPPORT SYSTEMS OR MEDICAL DEVICES, NUCLEAR FACILITIES, OR WEAPON SYSTEMS, AND YOU AGREE TO INDEMNIFY US IN CONNECTION WITH ANY SUCH USE OF THE PRODUCTS.
YOU SHALL BE SOLELY RESPONSIBLE FOR DAILY BACK-UP AND OTHER PROTECTION OF ITS DATA AND SOFTWARE AGAINST LOSS, DAMAGE OR CORRUPTION. YOU SHALL BE SOLELY RESPONSIBLE FOR RECONSTRUCTING DATA (INCLUDING BUT NOT LIMITED TO DATA LOCATED ON DISK FILES AND MEMORIES) AND SOFTWARE THAT MAY BE LOST, DAMAGED OR CORRUPTED DURING THE PERFORMANCE OF SERVICES. BOOZ ALLEN, OUR AFFILIATES, AND OUR SUPPLIERS, SUBCONTRACTORS AND AGENTS ARE HEREBY RELEASED AND SHALL CONTINUE TO BE RELEASED FROM ALL LIABILITY IN CONNECTION WITH THE LOSS, DAMAGE OR CORRUPTION OF DATA AND SOFTWARE, AND YOU ASSUME ALL RISK OF LOSS, DAMAGE OR CORRUPTION OF DATA AND SOFTWARE IN ANY WAY RELATED TO OR RESULTING FROM THE SERVICES.
WE WILL NOT BE RESPONSIBLE FOR AND NO LIABILITY SHALL RESULT TO WE OR ANY OF OUR AFFILIATES FOR ANY DELAYS IN DELIVERY OR IN PERFORMANCE WHICH RESULT FROM ANY CIRCUMSTANCES BEYOND OUR REASONABLE CONTROL, INCLUDING, BUT NOT LIMITED TO, SERVICES UNAVAILABILITY, CARRIER DELAYS, DELAYS DUE TO FIRE, SEVERE WEATHER CONDITIONS, FAILURE OF POWER, LABOR PROBLEMS, ACTS OF WAR, TERRORISM, EMBARGO, ACTS OF GOD OR ACTS OR LAWS OF ANY GOVERNMENT OR AGENCY. ANY SHIPPING DATES OR COMPLETION DATES PROVIDED BY US OR ANY PURPORTED DEADLINES CONTAINED IN A TERMS OF SERVICE, STATEMENT OF WORK OR ANY OTHER DOCUMENT ARE ESTIMATES ONLY.
LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SET FORTH HEREIN, WILL BOOZ ALLEN, OUR AFFILIATES, OR OUR SUPPLIERS, SUBCONTRACTORS OR AGENTS BE LIABLE FOR: (A) ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, BUSINESS, REVENUES OR SAVINGS, EVEN IF BOOZ ALLEN HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES OR IF SUCH DAMAGES ARE OTHERWISE FORESEEABLE, IN EACH CASE, WHETHER A CLAIM FOR ANY SUCH LIABILITY IS PREMISED UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY OF LIABILITY; (B) ANY CLAIMS, DEMANDS OR ACTIONS AGAINST YOU BY ANY THIRD PARTY; (C) ANY LOSS OR CLAIM ARISING OUT OF OR IN CONNECTION WITH YOUR IMPLEMENTATION OF ANY CONCLUSIONS OR RECOMMENDATIONS BY SELLER OR ITS AFFILIATES BASED ON, RESULTING FROM, ARISING OUT OF OR OTHERWISE RELATED TO THE SERVICES; OR (D) ANY UNAVAILABILITY OF THE SERVICES FOR USE OR ANY LOST, DAMAGED OR CORRUPTED DATA OR SOFTWARE. IN THE EVENT OF ANY LIABILITY INCURRED BY US OR ANY OF OUR AFFILIATES, THE ENTIRE LIABILITY OF BOOZ ALLEN AND OUR AFFILIATES FOR DAMAGES FROM ANY CAUSE WHATSOEVER WILL NOT EXCEED THE LESSER OF: (A) THE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE PRODUCT(S) GIVING RISE TO THE CLAIM OR THE SPECIFIC SERVICES GIVING RISE TO THE CLAIM; OR (B) $50,000.00.
Any claim, dispute, or controversy (whether in contract, tort or otherwise, whether preexisting, present or future, and including, but not limited to, statutory, common law, intentional tort and equitable claims) arising from or relating to the Services, the interpretation or application of this Agreement or the breach, termination or validity thereof, the relationships which result from this Agreement (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories hereto), or Booz Allen or any of our Affiliates' advertising or marketing (collectively, a "Claim") WILL BE RESOLVED, UPON THE ELECTION OF US, YOU OR THE THIRD PARTIES INVOLVED, EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION. If arbitration is chosen, it will be conducted pursuant to the Rules of the American Arbitration Association. If arbitration is chosen by any party with respect to a Claim, neither Booz Allen nor You will have the right to litigate that Claim in court or to have a jury trial on that Claim or to engage in pre-arbitration discovery, except as provided for in the applicable arbitration rules or by agreement of the parties involved. FURTHER, YOU WILL NOT HAVE THE RIGHT TO PARTICIPATE AS A REPRESENTATIVE OR MEMBER OF ANY CLASS OF CLAIMANTS PERTAINING TO ANY CLAIM. Notwithstanding any choice of law provision included in these TOUs, this arbitration agreement is subject to the Federal Arbitration Act (9 U.S.C. §§ 1-16). The arbitration will take place exclusively in McLean, Virginia. Any court having jurisdiction may enter judgment on the award rendered by the arbitrator(s). Each party involved will bear its own cost of any legal representation, discovery or research required to complete arbitration. The existence or results of any arbitration will be treated as confidential. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, ALL MATTERS PERTAINING TO THE COLLECTION OF AMOUNTS DUE TO US ARISING OUT OF THE SERVICES WILL BE EXCLUSIVELY LITIGATED IN COURT RATHER THAN THROUGH ARBITRATION.
You expressly acknowledge and agree that You will not export, re-export, or provide Services to any entity or person within any country that is subject to United States economic sanctions imposing comprehensive embargoes without obtaining prior authorization from the United States Government. The list of such countries subject to United States economic sanctions or embargoes may change from time to time but currently includes Cuba, Iran, Sudan, and Syria. You also expressly acknowledge and agree that You will not export, re-export, or provide such items to entities and persons that are ineligible under United States law to receive such items, including but not limited to, any person or entity on the United States Treasury Department’s list of Specially Designated Nationals or on the United States Commerce Department’s Denied Persons List, Entity List, or Unverified List. In addition, manufacturers' warranties for exported Services may vary or may be null and void for Products exported outside the United States.
USE OF INFORMATION YOU PROVIDE TO US
We are free to use any comments, information, ideas, concepts, reviews, or techniques or any other material contained in any communication You may send to us ("Feedback"), including responses to questionnaires or through postings to website and user interfaces, worldwide and in perpetuity without further compensation, acknowledgement or payment to You for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing products and creating, modifying or improving our Services. In addition, You agree not to enforce any "moral rights" in and to the Feedback, to the extent permitted by applicable law.
When You purchase Services from us, You agree to receive transaction-related emails. If You subscribe to receive other email communications from us, we may send You email communications to alert You to other products and services, company news, or other company information. If at any time You would like to stop receiving these email communications, You can follow the opt-out procedures described in such email.
Each party anticipates that it may be necessary to provide access to information of a confidential nature of such party, the Affiliates or a third party (hereinafter referred to as "Confidential Information") to the other party in the performance of this Agreement and any Statement of Work. "Confidential Information" means any information or data in oral, electronic or written form which the receiving party knows or has reason to know is proprietary or confidential and which is disclosed by a party in connection with this Agreement or which the receiving party may have access to in connection with this Agreement, including but not limited to the terms and conditions of each Statement of Work. Confidential Information will not include information which: (a) becomes known to the public through no act of the receiving party; (b) was known to the receiving party, or becomes known to the receiving party from a third party having the right to disclose it and having no obligation of confidentiality to the disclosing party with respect to the applicable information; or (c) is independently developed by agents, employees or subcontractors of the receiving party who have not had access to such information. To the extent practicable, Confidential Information should be clearly identified or labeled as such by the disclosing party at the time of disclosure or as promptly thereafter as possible, however, failure to so identify or label such Confidential Information will not be evidence that such information is not confidential or protectable.
If a receiving party is required by law, rule or regulation, or requested in any judicial or administrative proceeding or by any governmental or regulatory authority, to disclose Confidential Information of the other party, the receiving party will give the disclosing party prompt notice of such request so that the disclosing party may seek an appropriate protective order or similar protective measure and will use reasonable efforts to obtain confidential treatment of the Confidential Information so disclosed.
We follow generally accepted industry standards to protect the information we collect. That said, no data security measures are 100% secure. Therefore, while we implement reasonable physical, technical, and administrative measures to protect the information we collect, we cannot guarantee its absolute security.
Materials on the Site. Unless otherwise indicated, the Site and the material on the Site, including but not limited to all text, HTML code, graphics, button images, and the site design and "look and feel," are owned or licensed by us and are protected pursuant to U.S. and foreign copyright, trademark, and other laws. No intellectual property or other rights in or to this Site or its contents are transferred to You. This Site and the material on this Site may not be modified, copied, distributed, republished, downloaded, uploaded, or commercially exploited in any manner without our prior written consent, except that You are permitted to download a copy of any of the materials on this Site on a single computer for personal, noncommercial use, provided no copyright, trademark or other proprietary notices are removed. The use of these or any other service marks or trademarks on the Site is prohibited without express written permission from us and/or the owner of any such service mark or trademark.
Third-Party Linking. Unless expressly permitted, You may not create a link to this Site. Our Site may contain links to other websites, including various social media websites. We do not regularly review materials on websites linked to from this Site and do not necessarily endorse the materials appearing on any websites linked to from this Site. We assume no responsibility for the content or the policies and practices of such other websites. We encourage You to be aware when You leave our Site and to read the privacy policies of any other website that You visit.
CHOICE OF LAW AND MISCELLANEOUS
Booz Allen Hamilton
Attention: Webmaster for Commerce Portal
8283 Greensboro Drive
McLean, VA 22102