The following terms and conditions of service (“Terms”) govern sale of, access to, and use of, any goods or services provided by Vicinity Group LLC, a Delaware Limited Liability Corporation (“Vicinity”) and the individual or organization purchasing such goods or services (“Client”) by (each a “Party” and collectively the “Parties”.)
These Terms will apply to any and all quotes, order forms, proposals or similar document provided by Vicinity to Client (“Sales Contract”) for the purpose of delivering any hardware, software, services or other offering by Vicinity to Client (each, an “Offering”).
Vicinity reserves the right to modify or update these Terms at any time, and it is Client’s responsibility to periodically review the most current version published on our website. Client’s continued use of the Services after any changes to these Terms will constitute their acceptance of the updated Terms.
Vicinity agrees to perform services as requested in a fully executed Sales Contract issued pursuant to these Terms.
Client Purchase Orders
Purchase orders issued by Client shall be for the sole purpose of defining quantities, prices and describing the Offering to be provided under a Sales Contract and to this extent only are incorporated as a part of such Sales Contract and all other terms in purchase orders are rejected.
Payment Terms & Late Fees
Payments are due upon receipt of invoice. Any unpaid balances after thirty (30) days from the invoice date shall be considered Past Due. Past Due balances are subject to a finance charge equal to the annual percentage rate of ten and a half percent (10.5%) which shall accrue until the Past Due balance is paid in full. Payments shall be applied first to finance charges and then Past Due balances.
Client authorizes Vicinity, its outside collection agencies and other agents to contact them in connection with any and all matters relating to unpaid Past Due Balances. Past Due balances may be referred to a collection agency to collect any amounts Past Due. Client agrees to pay costs related to the collection of Past Due balances including, but not limited to, any collection agency’s fees, reasonable attorney’s fees, and arbitration or legal costs.
If this Sales Contract includes hardware, software or other products being sold to Client, full prepayment of one hundred percent (100%) of the order value for such products is required to confirm the order.
Suspension for Non-Payment
Should Client have Past Due balances on their account for more than thirty (30) days, Vicinity may in its sole discretion suspend performance of any or all Offerings under these Terms until such time that all Past Due balances are paid in full. Client shall still be obligated to pay any agreed upon service fees, term commitments or other expenses incurred by Vicinity during this term of service suspension.
Periodic Price Updates
Periodically during the term of any Sales Contract issued under these Terms, Vicinity may review and amend its pricing on Offerings which shall be reflected on the next invoice which shall serve as Notice of such change. Client’s continued use of such Offering shall constitute an acceptance of a contract modification reflecting the new pricing on Offerings for the remainder of the term of the Sales Contract.
Travel Expense Reimbursement
As required to deliver services under a Sales Contract, Vicinity may, in its sole discretion, dispatch employees and subcontractors to remote locations or offices operated by Client to carry out services under an Offering. Client shall be fully responsible for reimbursing Vicinity for any incurred costs as a result of this dispatch, including but not limited to airfare, hotel or ledging, ground transportation (car rental, taxi, ride share), meals, and time spent in transit.
Employment of Vicinity Staff
Client acknowledges that they would gain substantial benefit and Vicinity would be deprived of such benefit, if Client were to directly hire any personnel employed by Vicinity or its subcontractors. In the event that Client hires a member of Vicinity’s or its subcontractors professional staff, Client shall pay a fee equal to twenty five percent (25%) of the annual compensation being paid to the individual by Vicinity or its subcontractor. Such fee is not intended as a penalty and is reasonably calculated based on the projected costs Vicinity would incur to identify, recruit, hire, and train suitable replacements and is payable when the employee accepts the position with Client. Client agrees to provide Notice to Vicinity in the event that it makes an offer of employment to such personnel as described in this section within ten (10) days of making an offer of employment.
Client may elect to unilaterally terminate an Offering by providing thirty (30) days Notice to Vicinity, paying all fees due until the final date of termination and paying an additional early termination fee equal to one hundred percent (100%) of the remaining contract term value of the corresponding Sales Contract. The remaining contract term value shall be calculated as the monthly recurring service cost (including taxes & fees) multiplied by the remaining mother in the term of the Sales Contract.
In the event of voluntary termination of an Offering by Client, Vicinity shall not be obligated to provide transitional or replacement services to maintain continuity of Client’s operations without the execution of a subsequent Sales Contract for such services.
The occurrence of any of the following shall constitute a Default by Vicinity: (a) Vicinity fails to materially perform, observe or comply with any of the terms, provisions, agreements, covenants or conditions of these Terms or the terms of a Sales Contract and such failure shall continue thirty (30) days after receipt of Notice from Client of such failure by Vicinity.
In the event of a Default by Vicinity, Client shall have the right to terminate a Sales Contract without payment of an early termination fee.
The occurrence of any of following shall constitute a Default by Client: (a) Client fails to pay when due any fee or monetary charge to Vicinity under these Terms and such failure continues for a period of thirty (30) days after receipt of an invoice for such; or (b) Client fails to perform, observe or comply with any of the terms, provisions, agreements, covenants or conditions of these Terms and such failure shall continue for thirty (30) days after receipt of Notice from Vicinity of such failure by Client.
In the event of a Default by Client, in addition to any other rights or remedies, Vicinity shall have the right to terminate any or all Service Contracts and any Offerings to Client and Client shall pay Vicinity an early termination fee equal to one hundred percent (100%) of the remaining contract term value of all current Sales Contracts under these Terms. The remaining contract term value shall be calculated as the monthly recurring service cost (including taxes & fees) multiplied by the remaining mother in the term of the Sales Contract.
In the event of a Default termination of these Terms, Vicinity shall not be obligated to provide transitional or replacement services to maintain continuity of Client’s operations without the execution of a subsequent Agreement for such services. Further, Vicinity shall be entitled to irrevocably delete or destroy any and all Client data in its possession at the time of termination in its sole discretion.
All modifications to any Sales Contract issued under these Terms must be mutually agreed to by both Vicinity and Client in a written contract amendment unless otherwise explictly noted in these Terms.
If Vicinity proceeds with providing additional services before a written contract amendment is agreed to, as required to maintain the proper operation of Client’s business operations, Vicinity shall not be required to continue to provide additional services if Client does not agree to a contract amendment for those additional services. However, Client shall be responsible for any costs or fees associated with the delivery of such additional services during the time in which they were provided.
For all work performed for Client under these Terms, Vicinity acts as an independent contractor and not as an employee of Client. Consistent with that designation Vicinity shall have the right to supervise, hire, fire and direct its employees, agents, contractors and assistants. Vicinity and Client understand and agree that the relationship between the Vicinity and Client is not, and shall not be construed as, that of employer and employee, partnership, joint venture, joint employment, dual employment, teaming agreement or any other legal relationship other than an independent contractor relationship.
Client relies on and defers to Vicinity’s discretion and best independent professional judgement in choosing the methods and means by which Vicinity fulfills its responsibilities under these Terms, subject to the specific conditions and requests of Client as may be included in a Sales Contract issued under these Terms.
In delivering Offerings to Client under these Terms, Vicinity: may, in its sole discretion, use a qualified subcontractor, in part or in whole; shall furnish all necessary tools, equipment and vehicles for itself and its subcontractors; and shall, at its sole discretion and cost, provide commercially reasonable training for its employees as required to meet its obligations under these Terms.
If requested by Client in a Sales Contract, Vicinity staff and subcontractors will attend training, seminars, conferences or other events as directed by Client, provided that Client is fully responsible for all registration, tuition, fees and travel expenses related to attending these events.
In the course of providing or receiving Offerings under these Terms, Vicinity or Client (“Party”, or collectively “Parties”) may have access to information that is confidential and proprietary to the other Party (“Confidential Information”). For the purposes of these Terms, Confidential Information of a party means information, ideas, materials or other subject matter of such party, whether disclosed orally, in writing or otherwise, that is provided under circumstances reasonably indicating that it is confidential or proprietary. Additionally, Confidential Information includes, without limitation, the terms of these Terms, attachments to these Terms, pricing information including quotes and proposals, technical information or data about the configuration of technology systems, product ideas, methodologies, algorithms; and all personal, client, contracts and financial information.
Parties agree to ensure that Confidential Information is not inadvertently disclosed, altered or distributed publicly or to third parties. Notwithstanding the foregoing, Parties may disclose Confidential Information if compelled by court order, subpoena, or other legal requirements, and with attorneys.
Disclosure or publication by a Party of their own Confidential Information in a manner reasonably accessible to the public (including but not limited to on internet websites or other platforms), shall constitute a waiver for the other Party of confidentiality protections under this section.
Data Processing Limitations
Client agrees, warranties and represents that they shall not transmit, process, store or transact data subject to protection by law or regulation (“Private Data”) with an Offering without prior execution of a Private Data Processing Amendment to these Terms. Further, in the event that Client transmits, processes, stores or transacts Private Date with and Offering without the execution of a Private Data Processing Amendment, Client agrees to: (a) indemnify, hold harmless and defend Vicinity against any claim, fine, fee or other charge imposed upon or assessed against Vicinity by a governmental authority arising out of an alleged violation of applicable law by Vicinity, Client or third party; and (b) indemnify, hold harmless and defend Vicinity against any and all claim and suits by third parties for damages, injuries, losses, expenses (including court costs, arbitration costs and reasonable attorney’s fees) from the alleged or actual transmission, processing storage or transaction of Private Data with an Offering.
Limitation of Liability
To the fullest extend permitted by law, the total liability, in aggregate, of Vicinity and Vicinity’s officers, directors, partners, employees and subcontractors, to Client and anyone claiming by or through Client, for any and all claims, losses, costs, damages (including reasonable attorneys’ fees) or expenses resulting from or in any way related to the Agreement, from any cause or causes, including claims for negligence, shall not exceed the total of the preceding six (6) months service revenue received by Vicinity under these Terms, or the total amount of one million dollars ($1,000,000), whichever is less. It is intended that this limitation apply to any and all liability or cause of action however alleged or arising, including claims of negligence, unless otherwise prohibited by law.
Client agrees to indemnify, hold harmless and defend Vicinity, its officers, directors, agents, employees and subcontractors (“Indemnitees”) from an against any and all claims, actions, damages, suits, liabilities, obligations, cost, fees, charges and any other expenses whatsoever, including reasonable attorneys’ fees and costs, from third parties arising out of, or resulting from Vicinity’s performance under these Terms including, but not limited to, allegations of negligent or intentional acts of Indemnitees.
Vicinity shall secure and maintain professional errors and omissions liability insurance (“E&O insurance”) encompassing the Services of Vicinity that are under the subject of these Terms with limits of one million dollars ($1,000,000) per claim and in the aggregate which shall be effective during the term of any Sales Contract executed under these Terms.
Client shall secure all reasonably required first party and other insurance policies to properly mitigate their risk at their sole discretion and cost.
Neither party shall be liable for any failure or delay in the performance of its obligations under these Terms or any Sales Contract if such failure or delay is due to any cause beyond its reasonable control, including, without limitation, acts of God, war, terrorism, riot, fire, flood, natural disaster, strike or other labor dispute, governmental action, power outage, or other similar cause (each, a “Force Majeure Event”). The affected party shall promptly notify the other party of the occurrence of the Force Majeure Event and shall use reasonable efforts to minimize the effects of such event. The affected party shall be excused from any further performance of its obligations affected by the Force Majeure Event for as long as such event continues and such party continues to use reasonable efforts to resume performance.
In the event of any dispute arising out of or relating to these Terms or any Sales Contract, the Parties shall first attempt in good faith to resolve such dispute through negotiation. If the Parties are unable to resolve the dispute through negotiation within thirty (30) days, either Party may submit the dispute to binding arbitration in accordance with the rules of the American Arbitration Association. The arbitration shall take place in the State of Delaware, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Parties shall be fully responsible for any and all of their own expenses (including legal expenses and attorney’s fees) in the course of resolving any dispute by arbitration or otherwise.
Vicinity provides no warranties of any kind, either express or implied, for the hardware, software and products sold under this Sales Contract. All warranties, including any warranty of merchantability, fitness for a particular purpose, or non-infringement, are expressly disclaimed. The only warranties provided are those offered by the original equipment manufacturer (“OEM”) of the hardware, software or product, and Client agrees that any claims regarding the performance or deficiencies of the hardware, software or products must be directed to the OEM. Vicinity is not responsible for enforcing any warranties on behalf of the OEM.
No Returns or Refunds
All sales of hardware, software and products are final. Vicinity will not accept returns or provide refunds for any hardware, software or products purchased under this Sales Contract. Client acknowledges and agrees that, except as expressly provided in this contract, Vicinity is not responsible for any defect or performance issues in the hardware, software or products, and Client waives any rights it may have to return or exchange the hardware, software or products.
In the event of a conflict between the terms of these Terms and a Sales Contract, the terms of the Sales Contract will govern for that Sales Contract only.
Choice of Law; Jurisdiction and Venue
These Terms shall be governed by and interpreted in accordance with the laws of the State of Delaware other than its conflict of laws principles. Vicinity and Client agree that in the event that any suit or proceeding is brought in connection with these Terms, such suit or proceeding shall be brought in the state or federal court located in New Castle County, Delaware, and the parties shall submit to the exclusive jurisdiction of such courts and waive any and all jurisdictional, venue and inconvenient forum objections to such courts.
Sales Contracts and amendments are signed when a party’s signature is delivered by facsimiles, email or other electronic medium. These signatures must be treated in all respects as having the same force and effect as original signatures.
Taxes and Expenses
Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Client under these Terms.
If Client is a tax exempt entity they shall provide written certification of this status to Vicinity.
The address and contact for receipt of any Notice to Vicinity by these Terms or any Sales Contract is listed below:
Vicinity Group, LLC, 200 N Vineyard Blvd, Ste A325-5470, Honolulu, HI 96817
For all purposes of these Term and any Sales Contract, Notice will be in writing, delivered by regular or certified US Postal Service delivery, Commercial courier, or hand delivery between Parties. Notice by facsimile (“fax”) and electronic mail (“email”) will be deemed courtesy. All Notices, shall be deemed to have been duly given five business days after being deposited with the US Postal Service, postage pre-paid; one business day after being deposited with a commercial courier; or when hand delivered. Either party may from time to time change the notice address set forth above by delivering Notice to the other party in accordance with this section setting forth the new address and the date on which it will become effective.
If any provision of these Terms or any Sales Contract is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect, such provision shall be modified to the minimum extent necessary to make it valid, legal, and enforceable, or if such modification is not possible, such provision shall be severed from these Terms, and the remaining provisions of these Terms and such Sales Contract shall continue in full force and effect as if such invalid, illegal, or unenforceable provision had never been included.
No waiver by either Party of any breach or default hereunder shall be deemed a waiver of any subsequent breach or default, and no failure or delay by either Party in exercising any right, power, or remedy under these Terms or any Sales Contract shall operate as a waiver of such right, power, or remedy.
The rights and obligations of the parties to these Terms and any Sales Contract will be binding on, and will be of benefit to, each of the parties’ successors, assigns, heirs and estates. Parties shall provide written thirty (30) days advanced written Notice of any assignment to the other Party.