These terms and conditions (the “Agreement”) shall apply and will be considered a part of any “Order Form” for all services or products delivered to CyrusOne or its affiliates (“Buyer”) by Vendor. By providing services or products to Buyer you agree to be bound by this Agreement.
Scope of Work and Order Forms
Buyer hereby engages the Vendor to provide the products (including without limitation software) and perform the services as precisely delineated in any Scope of Work and Order Form executed by the parties. This Agreement shall control over any inconsistent, additional or different terms or conditions that appear on any quotation, acknowledgement, proposal, invoice or other communication received from Vendor. Any additional or different provisions contained in such documents that purport to alter or vary any of the terms and conditions of this Agreement are hereby rejected and objected to in advance and shall not become a part of the parties’ contract for sale of services or products unless otherwise specifically agreed in a writing signed by both parties. In addition, and without limitation, the terms and conditions of this Agreement shall govern and take precedence over any terms and conditions that Buyer may be required to accept by way of clicking an “Accept” button, “Agree” button, or similar button at Vendor’s designated website in order to access, download and/or use the Software or Documentation.
All capitalized terms used but not otherwise defined in this Agreement shall have the respective meanings set forth below:
“Background Intellectual Property” shall mean all Intellectual Property owned by or licensed to a party: (a) developed prior to entering into this Agreement; or, (b) developed outside the scope of any work or Services performed pursuant this Agreement.
“Documents” mean the working studies, reports, sketches, estimates, drawings, proposals, specifications, general conditions, supplementary general conditions, special conditions, addenda, change orders, and electronic submittals developed hereunder, in addition to end-user installation and user guides, manuals and other technical information in printed or machine readable form that accompanies the Software, or is developed and provided to Buyer by Vendor to support Buyer’s authorized use of the Software.
“Intellectual Property” means all commercial and technical information, including without limitation all kinds of technology, ideas, concepts, drawings, inventions, formulas, processes, procedures, designs, specifications, computer programs, software, data, patents, patent applications, trademarks, trademark applications, copyrights, and documentation or information together with copies of same irrespective of means of storage.
“Order Form” means an individual ordering document duly signed and executed by an authorized representative of each party from time to time for Vendor’s provision of products and services under this Agreement.
“Product” means any materials or products, including Software to be provided by Vendor to Buyer as described in this Agreement, a Scope of Work or an Order Form.
“Services” means any services to be provided by Vendor to Buyer as described in this Agreement, a Scope of Work or an Order Form, together with all management, supervision, labor, materials, tools, equipment, software, facilities, appurtenances, services, engineering, testing and/or documents necessary for Vendor to fully perform its obligations under this Agreement and all Order Forms.
“Software” means the software products, including but not limited to executables, database objects (tables, indexes, stored procedures and triggers), source code, and reports for those software products identified in a Scope of Work or Order Form; all related documentation; and all additions, improvements, corrections and updates to the Software.
“Work Product” shall include (i) all documents, maps, photographs, specifications and samples drawings, CAD materials, books, data, recordings, tracings, specifications, calculations, diaries, memoranda, manuals, correspondence, documentation, plans, programs, plants, processes, products, costs, equipment, routes, reports, studies, designs, know-how, trade secrets, communications written or oral and any other information, of any form or media, developed and created by Vendor or any subcontractor, vendor or consultant of Vendor in connection with this Agreement; (ii) all embedded software, tools, molds, dies, parts, supplies, jigs, fixtures, plans, drawings, specifications and all other equipment, materials and property that are (a) furnished by Buyer to Vendor (or its subcontractors) for its (or their) use hereunder, (b) procured, produced, manufactured or fabricated by Vendor (or its subcontractors, vendors or consultants) in connection with its (or their) performance hereunder or (c) are in any manner paid for directly or indirectly by Buyer; and (iii) all intellectual property, invention or know-how that Vendor, its subcontractors, vendors or consultants produce in performing this Agreement.
“Work-in-Progress” means unfinished Products that are specially manufactured for Buyer and that are not standard products of Vendor or products that are inventoried by Vendor in the normal course of its business.
Performance of Services
- Vendor shall perform the Services for Buyer according to the schedule and the method specified in this Agreement, the Scope(s) of Work and the Order Form(s) and in a manner consistent with the needs of Buyer. Vendor shall furnish all labor, equipment, tools, and supplies and do all work necessary to complete the Services.
- Time is of the essence in the performance of Services hereunder.
- To the extent Vendor will provide any Services at a Buyer owned or operated location, Vendor agrees as follows:
- Vendor will have conducted a background investigation on each individual assigned to work at a Buyer owned or operated location. The investigation must take place in each of the following: (x) the county (or comparable political subdivision), (y) state, and (z) federal jurisdictions in which such individual has resided and currently resides and has been or is currently employed. In addition, said background check must cover the period ten years prior to said check. Vendor will not assign any individual that has a felony conviction or pending felony charge on their record.
- Vendor represents and warrants with respect to individuals assigned to work at a Buyer owned or operated location that all names and social security numbers match and that all individuals hired are United States citizens or they have one of the documents currently accepted (or accepted at the time of hire) by the U.S. Citizenship and Immigration Services (USCIS) as proof of employment eligibility, as shown on USCIS website’s instructions for Form I-9 (www.uscis.gov).
Vendor shall conduct a urine drug screen to be performed by an authorized laboratory that has been certified by the Substance Abuse and Mental Health Services Administration (SAMHSA) utilizing the SAMHSA drug-certified 5-panel drug test on all individuals assigned to work at a Buyer location. Vendor shall not assign any individual that has failed a drug screen.
All individuals shall comply with the policies and procedures governing the Buyer locations.
Provision of Products
- All Products furnished under this Agreement shall be delivered D.D.P. (Incoterms 2000). The address for each shipment shall be provided by Buyer. The cost of handling, storing and installing any materials or equipment shall be considered as included in the price.
- Products shall be properly packaged and/or crated in accordance with good commercial practice so as to be protected against hazards of shipment, storage and exposure in full compliance with the packaging, labeling, shipping and documentation requirements of all state, local, national or international governmental agencies or authorities.
- Vendor shall deliver the Products in such quantities and at such times as Buyer may direct. Vendor shall send to Buyer at the time of shipment an itemized packing slip with respect to each shipment, giving the order number, name of shipper, detailed description and list of the products shipped and method of shipment, together with bill of lading. Buyer’s count shall be conclusive in the absence of an itemized packing slip.
- Buyer reserves the right to return, at Vendor’s expense, all products or materials delivered in error, or in excess of the quantity contained in an Order Form. All material is subject to Buyer’s inspection and approval within a reasonable time after delivery, notwithstanding prior payment of invoices to obtain a cash discount.
- Title and all risk of loss or damage to all Products covered by this Agreement shall remain with Vendor until delivered by Vendor as set forth above. In the event Products are delivered in a damaged condition, Buyer reserves the right to accept the damaged Products if Buyer determines that portions of the products and materials are usable and advantageous to Buyer. In accepting such Products, Buyer reserves the right to: (i) Repair the damage or any part thereof at Vendor’s expense; (ii) Demand replacement of the damaged products by Vendor, at Vendor’s expense; (iii) Accept the damaged products and adjust purchase price as Buyer deems appropriate (iv) Purchase replacements for the damaged products elsewhere at Vendor’s expense in the event Vendor does not replace the damaged products within 60 days after notice is given by Buyer; or (v) Withhold payment until the damaged products are repaired or replaced
- Time and delivery are of the essence. At Buyer’s option, if Vendor fails to furnish any Product within the time specified in this Agreement or an Order Form, Buyer may purchase such materials elsewhere and Vendor shall pay any excess cost of such products over the price specified herein, together with any additional expense incurred by Buyer in connection therewith.
- Vendor shall be responsible to Buyer for delays that are caused by events within the Vendor’s control or caused by Vendor’s acts of negligence. If Buyer requests expedited shipment of any late deliveries, Vendor shall pay any additional costs of expedited shipment. Vendor shall not ship ahead of the scheduled delivery date unless authorized by Buyer in writing. Buyer may return, at its option, all unauthorized early shipments to Vendor at Vendor’s expense. Payments for early shipments shall be postponed until normal maturity after the scheduled delivery date.
- Grant of Software License; Ownership of Software
- Subject to the terms and conditions in this Agreement, Vendor grants to Buyer a non-exclusive, worldwide, irrevocable and royalty-free license:
- to use, for Buyer’s business purposes, the delivered Software on multiple systems to be decided by Buyer or to use the Software as embedded in equipment provided by Vendor, as set forth in this Agreement;
- to use any related Documents with the Software; and
- to make copies of the Software and Documents as necessary: (1) to install and run the Software in accordance with the license; and (2) for backup or archival purposes, or for replacement of a defective copy, for Buyer’s use alone and not for distribution to any unauthorized third party, beyond which copies of the Software and Documents may only be made subject to Vendor’s prior written approval; provided, however, that the foregoing distribution restriction shall not apply to Software developed exclusively or customized for Buyer.
- The license granted in Section 5(a) above shall commence on the delivery date of the Software, and shall continue until expiration or termination of this Agreement unless Buyer terminates this Agreement or the applicable Order Form for cause as provided herein, which in such case the license shall continue in perpetuity in the case of a perpetual license or if necessary for Buyer to use any other Products purchased from Vendor.
- Vendor shall own and retain all right, title and interest in and to the Software, including all Intellectual Property rights associated therewith, to the extent that such Software and Intellectual Property are not developed exclusively or customized for Buyer. Buyer shall own all right, title and interest in and to the Software, including all Intellectual Property rights associated therewith, that is developed exclusively or customized for Buyer.
- Subject to the terms and conditions in this Agreement, Vendor grants to Buyer a non-exclusive, worldwide, irrevocable and royalty-free license:
- Software License Restrictions
- With regard to Software which Vendor owns and retains title to, Buyer agrees:
- not to use the Software except as expressly authorized in this Agreement;
- not to alter or remove any copyright, trademark or other proprietary rights notices appearing in or on the Software as provided;
- not to resell, transfer, sub-license, share, or distribute the Software to any third party, except as otherwise expressly permitted in this Agreement or authorized by Vendor in writing;
- not to, or authorize any third party to, decompile, disassemble, or reverse engineer the Software, or to translate the Software into another computer language, or otherwise attempt to gain access to the source code for the Software; and
- not to cause or permit the use of the Software for any illegal or unlawful purposes.
- Changes of Software. Notwithstanding the provisions of subsection (b)(i) above, Buyer shall be entitled to make changes in the Software to the extent that such entitlement has been agreed in each individual case and/or in the event that such changes are made in accordance with mandatory law. Any changes which are made in connection with defect, error and non-conformance correction, repair, replacement, or upgrading shall only be made by Vendor’s personnel or by personnel who are authorized by Vendor to make such changes, unless otherwise agreed between the Parties.
- Maintenance and Support. Vendor will, at no additional cost, provide certain support and maintenance services for the Software including, but not limited to, updates, upgrades, releases, enhancements, bug fixes, diagnositcs and other related services necessary for Buyer to use the Software.
- Source Code. In the event that Vendor becomes insolvent or bankrupt or is the subject of insolvency proceedings or ceases operations or plans to cease operations, and there is no successor organization to continue providing the services and support for the Software, then, upon Vendor’s receipt of written notice from Buyer, Vendor shall immediately provide to Buyer a non-exclusive, non-redistributable, perpetual, irrevocable, and royalty-free copy of the source code for the Software in a machine readable format. The use of such code shall be limited to internal deployment and support of the application. This Section in no way represents a transfer of Intellectual Property rights to the source code from Vendor or its assignees or successors to Buyer.
- With regard to Software which Vendor owns and retains title to, Buyer agrees:
- Services. Vendor shall, in the performance of any Services,
- exercise prudent skill, care and diligence and perform such work promptly, in a workmanlike manner and free from defects, coordinating such Services with Buyer (and any of Buyer’s contractors or consultants as Buyer directs);
- ensure that all Services are executed in accordance with this Agreement and with all applicable laws, rules, codes, regulations and guidelines;
- procure, at its own expense, all permits and licenses required for the performance of any Services and arrange for all required inspections;
- if applicable, promptly provide all Documents and Work Product prepared in connection with any Services to Buyer; and
- observe all access, safety and security measures required by Buyer, and assure that its subcontractors and employees follow the same while at Buyer’s site. Vendor further warrants that it is licensed or otherwise authorized to perform all Services. If Vendor is in breach of any of the foregoing, Vendor will promptly re-perform the Services as necessary at no charge to Buyer. If Vendor is unable to re-perform the Services within fifteen (15) days of being notified by Buyer of the error or nonconformity then Buyer will, in addition to other remedies available hereunder, be entitled to a full and prompt refund in respect of such nonconforming Services.
- Products (excluding Software).
- Unless the warranty period is extended, the following warranty shall apply: if, any time prior to eighteen (18) months from the date of delivery (or the duration of time provided by an applicable manufacturer’s warranty, whichever is longer), it appears that the Products, or any part thereof, do not conform to the specifications set forth in this Agreement, the applicable Scope of Work or the warranties contained herein, and Buyer so notifies Vendor, Vendor shall promptly correct such nonconformity to the satisfaction of the Buyer, at the Vendor’s sole expense. If Vendor fails to correct the non-conforming, then Buyer at its option may: (1) reject or revoke acceptance, and cover by making any reasonable purchase of products in substitution for those rejected and the Vendor will be liable to the Buyer for any excess costs for similar products or services; or (2) proceed to correct Vendor’s nonconforming work by the most expeditious means available, the costs of which shall be for Vendor’s account; or (3) Buyer may retain the nonconforming products and an equitable adjustment reducing the order price to reflect the diminished value of such nonconforming products will be made by written change order or modification.
- Vendor’s liability hereunder shall extend to all damages proximately caused by the breach of any of the foregoing warranties, including incidental damages, such as removal, inspection, costs of return or warehousing; consequential damages, such as (but not limited to) delay costs and loss of use, and Vendor shall be liable to Buyer for any attorneys’ fees or costs incurred in enforcing the terms of this Agreement.
- Vendor represents it has valid and marketable title to the Products, free and clear of all liens and Vendor agrees and warrants that no mechanics liens shall attach to Buyer’s property by virtue of Vendor’s default in paying its employees, Vendors or subcontractors.
- Nothing contained here shall limit Vendor’s obligation to provide maintenance or other Services related to the Products as required by this Agreement or an Order Form
- Software: Vendor warrants to Buyer that the Software shall conform to the corresponding specifications and Documents provided for such Software, and will be free from defects or non-conformances for the duration of the applicable Order Form (or such other period set forth in the applicable Order Form) following the delivery date of such Software (“Software Warranty Period”). In the event of any breach of the foregoing Software warranty, Vendor shall, without undue delay, repair or replace the defective or non-conforming Software as Buyer may select, at Vendor’s own cost, expense and risk. If Vendor fails to repair or replace a defect or non-conformity, Buyer shall be entitled to appropriate credits or refunds for all amounts already due or paid to Vendor for such Software in addition to any other remedies available hereunder.
- General-Corporate. Vendor represents and warrants to Buyer that: (i) it is duly organized, validly existing and in good standing under the laws of the state of its organization and in each jurisdiction where it is required to be qualified as a foreign organization or entity; (ii) it has all requisite power to own, operate and lease its properties and carry on its business as now conducted; (iii) it has all regulatory approvals necessary for it to legally perform its obligations under this Agreement; (iv) the execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms or conditions in its governing documents, any contract or other agreement to which it is a party or any law applicable to it; (v) this Agreement constitutes a legally valid and binding obligation enforceable against it in accordance with the terms thereof; (vi) there are no bankruptcy proceedings pending or being contemplated by it or, to its knowledge, threatened against it; (vii) there are no legal proceedings that would be reasonably likely to materially adversely affect its ability to perform this Agreement; and (viii) it has knowledge and experience that enable it to evaluate the merits and risks of this Agreement.
- Compliance. Vendor represents and warrants that any Products that have been and/or will be manufactured, constructed and sold, that any Services that have been and/or will be provided and that any prices charged are in strict compliance with all applicable federal, state and local laws, ordinances, regulations, orders and generally recognized or authoritative standards.
- Intellectual Property Warranties. Vendor represents and warrants that:
- Ownership. Any Work Product prepared or furnished by Vendor pursuant to this Agreement shall become the property of Buyer whether or not the Services are completed or the Products are delivered and accepted. All Work Product shall be considered work made for hire by Vendor. If any Work Product may not, by operation of law, be considered work made for hire by Vendor for Buyer (or if ownership of all right, title and interest of the intellectual property rights therein shall not otherwise vest exclusively in Buyer), Vendor agrees to assign, and upon creation thereof automatically assigns, without additional consideration, the ownership of all copyrights and patentable inventions directly applicable to the Work Product to Buyer. Vendor shall perform, upon the reasonable request of Buyer at any time, such further acts as may be necessary or desirable to transfer, perfect and defend Buyer’s ownership of the Work Product.
- Licensing of Work Product. If and to the extent that any Work Product is or may not be transferred to Buyer as work for hire:
- Vendor hereby grants Buyer an unrestricted, freely transferable, fully paid up, perpetual license and right to use, reproduce and make derivative works from all Work Product in such manner and for such purposes as Buyer may in its sole discretion determine, including without limitation for the construction, operation, maintenance, repair, alteration, modification or expansion of any current or future project of Buyer. Without limiting the foregoing, Vendor expressly agrees that Buyer shall have the right to assign, sublicense or otherwise transfer, in whole or in part, the benefit of the licenses confirmed in this Section to any affiliates, any lender that provides financing to Buyer, a successor in interest to Buyer or current or future project (whether by merger, membership interest sale or asset sale), any subsequent purchaser or assignee of the same, or any Vendor, contractor or other service provider for any Project.
- If any Work Product includes intellectual property rights, proprietary information or copyrighted information of a third party, or any information or property requiring a license to use, manufacture, sell, reproduce, distribute by any means, perform publicly or display such material, Vendor shall use commercially reasonable efforts to secure the necessary copyright, license or release to allow Buyer to use, manufacture, sell, reproduce, distribute, perform publicly and display such information.
- Following a termination of this Agreement for any reason, Vendor shall promptly deliver all Documents and Work Product to Buyer. The license provided in this Section shall survive termination of this Agreement by either party for any reason.
- Clear Title. Vendor guarantees that legal title to and ownership of the Work Product shall pass to Buyer free and clear of any and all liens, claims, security interests or other encumbrances made by or through Vendor, any subcontractor, or their officers, employees or representatives.
- There are no outstanding assignments, grants, licenses, obligations, agreements, liens, encumbrances or claims of any other party (whether written, oral or implied), including without limitation any licensing, honoraria, use, royalty or similar fees, associated with or attached to any Work Product or Product that limit or otherwise affect the ability of Buyer to use any Work Product or Product or that are inconsistent with this Agreement and the rights contained herein.
- No third party has asserted any claim of infringement related to the Products or Work Product and Vendor has not received any written or oral notice of any claims of infringement or has any reason to believe that any such infringement exists or has existed in the past.
- There are no limitations on the sale, license or use of such Products or Work Product and any associated intellectual property rights by way of any order, decree of court, judgment or otherwise.
- The execution, delivery and performance of this Agreement will not breach, violate or conflict with any instrument or agreement governing any intellectual property rights with respect to the Services, Products or Work Product or in any way impair the right of Buyer to use, license or dispose of such as permitted by this Agreement.
- Infringement. Vendor represents and warrants that no Services, Products or Work Product infringe or have infringed the Intellectual Property rights of any third party and when used as anticipated or as contemplated by this Agreement will not infringe or constitute a misappropriation of any Intellectual Property rights of any third party. Vendor shall indemnify, defend and hold Buyer harmless from any claims, damages or loss, including costs, expenses or attorneys’ fees, arising from an infringement claim in connection with the Services or Products provided hereunder.
- The warranties set forth in this Section shall in no way limit Buyer’s rights and remedies with respect to latent defects in the Products or Services. Buyer expressly rejects and objects in advance to any disclaimer or limitation by Vendor of any applicable warranties, express or implied, made or deemed by Vendor to be a part of an Order Form. Buyer rejects and objects in advance to any disclaimer or limitation on remedies against Vendor in connection with and Order Form. All warranties (both express and implied) shall survive inspection, acceptance, testing and payment by Buyer.
Safety, Discolsure and Special Warnings
- Vendor agrees to furnish to Buyer, at Vendor’s expense, material safety data sheets for any Products and Services covered by this Agreement. Prior to and with the shipment of any Products under this Agreement, Vendor agrees to furnish to Buyer sufficient warnings and notices in writing (including appropriate labels) of any toxic or hazardous materials that are an ingredient or any part of the Products together with such special handling instructions as may be necessary to best prevent bodily injury or property damage in the handling, transportation, processing, use or disposal of such Products.
- Vendor hereby agrees to be solely responsible for the conduct, health, and safety of its agents, contractors, employees, subcontractors and subordinates and shall exercise all reasonable precautions, including those prescribed by Buyer, to avoid injury to persons, and damage to property in the performance under this Agreement. Vendor will comply with all applicable federal, state, and local safety laws, regulations and policies, including training, posting, inspection, and reporting requirements.
If any Products or component thereof contracted for hereunder are of Buyer’s design, Vendor shall not reproduce for others any such Product or component of such Product without the prior written consent of Buyer, nor shall Vendor supply or disclose to others any information regarding such Products or components, nor incorporate in other products or articles any special feature of design or manufacture considered by Buyer to be peculiar or unique to such Products or components, without Buyer’s prior written consent.
Invoices and Payment Terms
- The price of the Products and/or Services shall be the prices specified in the Order Form(s). Unless otherwise provided for herein, the costs stated shall constitute the entire consideration due to Vendor for Products and/or Services purchased hereunder. This sum shall include freight, applicable customs, taxes and duties. Vendor shall provide a shipping list and bill of lading with each shipment.
- Unless otherwise provided, a single invoice in Vendor’s standard format will be submitted by Vendor to Buyer following the later of:
- completion of any Services or
- after all Products have been accepted by Buyer. The invoice shall be paid within 45 days after the date Buyer receives the invoice. All invoices must be rendered to the Buyer’s address at the top of this Agreement. The purchase order number provided by Buyer must appear on invoices, bills of lading, packing slips and freight tickets.
- The proper performance of the obligations set forth in this Agreement and the Order Form(s) shall be a condition precedent to the payment of any monies hereunder. All claims for monies due or to become due from Buyer shall be subject to set off, counterclaim or deduction by Buyer arising out of this or any other Agreement between Buyer and Vendor. To the extent applicable, Vendor shall provide lien waivers and claim releases with each application for payment, which address payment to subcontractors and vendors for services and products provided to vendor in the prior month.
The purchase price set forth in an Order Form shall include all federal, state and local taxes applicable to the sale of materials, products or services covered by the applicable Order Form. Vendor shall pay when due all taxes of whatever kind levied or imposed in connection with Vendor’s performance, including without limitation, all state sales taxes, excise taxes, transportation taxes, unemployment compensation taxes, old age benefits and social security taxes. Buyer shall have no liability for the payment or reimbursement of, and Vendor shall be liable for and shall pay, or cause to be paid, any or all ad valorem, value-added, property, occupation, severance, gross receipts, privilege, use, consumption, excise, lease, transaction and other or new taxes, governmental charges, licenses, fees, duties, tariffs, permits and assessments, or increases therein applicable to any Services and/or any Products. If Buyer is required to remit any such taxes, then the amount shall be deducted from any sums becoming due to Vendor. Vendor shall indemnify, defend and hold harmless Buyer from any claims for such taxes.
If (a) any representation or warranty made by Vendor herein is false or misleading when made or when deemed made or repeated, or (b) Vendor fails to perform any covenant or obligation set forth in this Agreement or an Order Form, including without limitation the failure to make shipment of items or fails to perform the Services within the time specified herein or in an Order Form (hereinafter “Breach”), then Buyer may, in its sole discretion and upon written notice to Vendor, (i) withhold payments due to Vendor under this Agreement, including without limitation any Order Form; (ii) terminate, cancel or suspend this Agreement (in which case all Order Forms shall be suspended or cancelled) or any Order Form, in whole or in part and without liability; (iii) procure on such terms as Buyer deems appropriate, items or services similar to those so terminated or cancelled and/or (iv) pursue any other rights or remedies to which it may be entitled at law or in equity. If Buyer terminates, cancels or suspends this Agreement or an Order Form following a Breach, Vendor shall (i) continue performance to the extent not terminated and (ii) be liable to Buyer for any excess costs and expenses incurred in connection with procuring same.
Buyer’s Right to Terminate, Cancel or Suspend
- Convenience. Buyer shall, at any time in its sole discretion by delivery of written notice to Vendor, have the right to terminate, cancel or suspend, in whole or in part, this Agreement without cause and for convenience.
- Insolvency. Buyer may immediately cancel this Agreement and any Order Forms without liability to Vendor upon the happening of any of the following or other comparable events: (a) the insolvency of Vendor; (b) the filing of a voluntary petition in bankruptcy by Vendor; (c) the filing of any involuntary petition in bankruptcy against Vendor that is not vacated within 30 days of the filing thereof; (d) the appointment of a receiver or a trustee over Vendor; or (e) the execution of an assignment for the benefit of creditors by Vendor.
- Effect. Following a termination pursuant to this Section, Buyer shall have no obligation to Vendor except that Vendor shall be entitled to all amounts due Vendor for (a) work properly rendered and expenses properly incurred to the date of receipt of notice of termination; (b) all Products properly delivered and accepted prior to the date of such notice; and (c) costs incurred by Vendor for Work in Progress; provided, however, that in no event shall Buyer be obligated to pay an amount in excess of the amount set out in this Agreement or the applicable Order Form; and any advance payments will be refunded accordingly.
- Vendor shall maintain, and shall cause its subcontractors to maintain, in effect at all times during performance under the Agreement not less than the following coverage and limits of insurance under forms of insurance policies satisfactory to the Buyer.
- Workers Compensation/ Employer’s Liability
- $1,000,000 Bodily Injury by Accident
- $1,000,000 Bodily Injury by Disease- Each Employee
- $1,000,000 Policy Limit- Bodily Injury by Disease
- Commercial General Liability/ Bodily Injury/Property Damage
- $1,000,000 Per Occurrence
- $2,000,000 Aggregate
- $1,000,000 Personal and Advertising Injury
- $2,000,000 Products/Completed Operations Insurance
- Umbrella Coverage-
- $5,000,000 minimum- providing excess follow form of above liability coverage’s
- Professional Liability including Technology Errors and Omissions:
- $5M Aggregate
- Workers Compensation/ Employer’s Liability
- Vendor shall procure insurance from an insurance company eligible to do business in the state in which the Services are to be provided and having and maintaining a financial strength rating of A-VII or better as rated by A.M. Best key rating guide for property and casualty insurance companies. Failure to provide such certificates of insurance does not constitute a waiver by Buyer of these insurance requirements.
- Buyer and all subsidiary companies are to be named as additional insured’s (except workers’ compensation) with waiver of subrogation. The insurance as afforded to each additional insured shall be on an occurrence basis, state that it is primary and non-contributory insurance, and shall provide for a severability of interest or cross-liability clause. Should Vendor receive notice of cancellation or material reduction of any of the policies of insurance required herein, Vendor shall promptly, but not less than 30 days prior to such cancellation or reduction, provide notice of the same to Buyer, unless such required policies are immediately replaced with similar coverage in scope and limits.
- None of the requirements contained herein as to types, limits, and approval of insurance coverage to be maintained by Vendor are intended to and shall not in any manner limit or qualify the liabilities and obligations assumed by Vendor under this Agreement.
- Vendor shall not undertake any Services on Buyer’s premises until all required insurance has been obtained and certificates confirming such coverage have been furnished to and approved by Buyer.
- Damage to Buyer’s Property. Vendor will be responsible to, and shall reimburse, Buyer for physical loss of, or damage to, Buyer’s property. Vendor’s liability under this Section shall not be limited notwithstanding anything contained herein to the contrary.
- Indemnification. Vendor shall indemnify defend and hold harmless Buyer from any and all claims, demands for damage (including special, indirect or consequential damages of third parties), suits, judgments, liabilities and/or court costs, including interest, penalties and reasonable attorneys’, experts’ and accounting fees and expenses of any nature whatsoever, asserted against, suffered by, imposed upon or incurred by Buyer due to (i) if Services are provided hereunder, the negligence, acts or omissions of Vendor, (ii) personal or bodily injury, death and/or loss and/or damage to property to the extent caused by the negligent acts, failures to act or willful misconduct of Vendor and its agents and subcontractors; (iii) a breach of any of Vendor’s representations and warranties set forth in this Agreement; or (iv) a breach of contract between a third party and Vendor, its agents or subcontractors.
The parties agree that the indemnification and reimbursement commitments set forth in this Agreement shall apply whether or not Buyer is a formal party to any lawsuits, claims or other proceedings, and that such commitments shall extend to any affiliate, member, manager, officer, employee, contractor or agent of Buyer.
Vendor’s liability under this section shall not be limited notwithstanding anything contained herein to the contrary.
- Liability to Employees. Vendor agrees to defend, indemnify and hold Buyer, including its employees, members, managers, directors, officers, partners, affiliates and assigns, harmless from and against all claims, demands, losses, liabilities, payment and expenses (including reasonable attorneys’ fees) for personal injury or bodily injury, including death, to the Vendor’s employees, or damage to property of Vendor’s employees.
- Limitation on liability. Other than as expressly set forth in this Agreement, in no event shall either party be liable to the other party for consequential, incidental, punitive, exemplary or indirect damages, or other business interruption damages, by statute, in tort or contract. The foregoing limitation shall not apply to (i) damages arising from Vendor’s breach of its confidentiality obligations; (ii) damages arising from Vendor’s fraud, gross negligence or willful misconduct and (iii) damages suffered by Buyer that are covered by insurance maintained by Vendor.
The parties acknowledge and agree that any amounts payable by a party to a third party that are the subject of indemnification hereunder shall be considered direct damages under this Agreement. This section shall survive the expiration or termination of this Agreement for any reason.
- “Confidential Information” of a party means any non-public, commercially proprietary or sensitive information (or materials) belonging to, concerning or in the possession or control of the party or its Affiliates (the “Furnishing Party”) that is furnished, disclosed or otherwise made available to the other party (the “Receiving Party”) (or entities or persons acting on the other Party’s behalf) in connection with this Agreement and which is either marked or identified in writing as confidential, proprietary, secret or with another designation sufficient to give notice of its sensitive nature, or is of a type that a reasonable person would recognize it to be commercially sensitive.
- Confidential Information does not include information that the Receiving Party can demonstrate: (i) was in the possession of, or was rightfully known by, the Receiving Party without an obligation to maintain its confidentiality prior to receipt from the Furnishing Party; (ii) was or has become generally available to the public other than as a result of disclosure by the Receiving Party or its agents; (iii) after disclosure to the Receiving Party, was received from a third party who, to the Receiving Party’s knowledge, had a lawful right to disclose such information to the Receiving Party without any obligation to restrict its further use or disclosure; (iv) was independently developed by the Receiving Party without use of or reference to any Confidential Information of the Furnishing Party; or (v) that the Furnishing Party has disclosed to unaffiliated third parties without similar restrictions.
- The Receiving Party agrees to (i) maintain Confidential Information of the Furnishing Party in strict confidence and not disclose such Confidential Information to third parties; (ii) use Confidential Information of the Furnishing Party only for purposes of this Agreement (including providing such Confidential Information only to individuals who have a need to know and are bound to protect the confidentiality of the information in a manner substantially equivalent to that required of the Receiving Party and (iii) keep the Confidential Information of the Furnishing Party secure and protect it from unauthorized access and use by using at least the same degree of care as the Receiving Party employs to avoid unauthorized access and use of its own Confidential Information of a similar nature, but in no event less than reasonable care;
- Each Party’s Confidential Information will remain the property of that Party. Nothing contained in this Section will be construed as obligating a Party to disclose its Confidential Information to the other Party, or as granting to or conferring on a Party, expressly or by implication, any rights or license to the Confidential Information of the other Party.
- If the Receiving Party becomes legally compelled to disclose any Confidential Information of the Furnishing Party in a manner not otherwise permitted by this Agreement, the Receiving Party will provide the Furnishing Party with prompt notice of the request (unless legally precluded from doing so) so that the Furnishing Party may seek a protective order or other appropriate remedy. If a protective order or similar order is not obtained by the date by which the Receiving Party must comply with the request, the Receiving Party may furnish that portion of the Confidential Information that it determines it is legally required to furnish.
- When Confidential Information of the Furnishing Party is no longer required for the Receiving Party’s performance under the Agreement, or upon the Furnishing Party’s request, or in any event upon expiration or termination of the Agreement, the Receiving Party will return all materials in any medium that contain, refer to, or relate to Confidential Information of the Furnishing Party or, at the Furnishing Party’s election, destroy them, provided however, that the Receiving Party may retain a copy of the Furnishing Party’s Confidential Information for legal archival purposes, which copy shall be maintained in accordance with the provisions of this Agreement. At the Furnishing Party’s request, the Receiving Party will certify in writing that it has returned or destroyed all copies of the Furnishing Party’s Confidential Information in the possession or control of the Receiving Party’s or any of its Affiliates or contractors.
Neither party shall be liable for damages resulting from delays arising from (i) acts of God, unusually severe weather, earthquakes and acts of war, any or all of which are beyond the management or reasonable control of the party claiming force majeure that (ii) substantially and adversely affects a party’s ability to timely perform its obligations hereunder. In the event Vendor is delayed by such an event, (i) Vendor shall immediately provide notice to Buyer of the event causing delay and the expected duration, (ii) Buyer shall have no obligation to pay for any Services affected by the delay for the duration of the delay, and (iii) if the delay last longer than fourteen (14) days then Buyer may terminate the affected Services or cancel its order for Products.
Vendor acknowledges that Buyer and its parent entities, subsidiaries and its affiliates are subject to the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act of 2010 (“Anti-Bribery laws”). Vendor covenants and agrees to comply with Buyer’s policies regarding the Anti-Bribery laws. Vendor acknowledges and agrees to promptly provide and prepare, upon request, all information or certifications that may be necessary, advisable or appropriate for Buyer and its parent entities, subsidiaries and its affiliates to demonstrate compliance with the Anti-Bribery laws. Vendor acknowledges that it shall not take any action on behalf of, or for the benefit of, Buyer that would violate Anti-Bribery laws. Vendor acknowledges that (a) Vendor’s or its subcontractor’s failure to provide any such information or certification, or (b) any act by Vendor or its subcontractors which may be reasonably deemed by Buyer to cause Buyer or its parent entities, subsidiaries or affiliates to violate the Anti-Bribery laws, shall constitute an immediate and un-curable basis for termination of this Agreement. Notwithstanding anything in this Agreement to the contrary, Vendor acknowledges that neither it nor its subcontractors shall be paid or reimbursed for any Services, fees or expenses as a result of a violation of this Section.
During the term of this Agreement and for a period of two (2) years thereafter, Buyer shall have the right to audit, all records of Vendor to verify compliance with the terms of this Agreement. Buyer shall provide Vendor with reasonable notice of its intention to perform the audit. Vendor shall reasonably cooperate and provide assistance to Buyer in connection with the audits performed hereunder.
Vendor shall ensure that no forms of harmful surreptitious code or other contaminants, including but not limited to viruses, malware, commands, instructions, devices, techniques, bugs, or web bugs, (collectively, “Malicious Code”) are introduced into any computer, network, database, software, equipment, website, or processes in connection with the Services performed under this Agreement. If Malicious Code is found to have been introduced into any environment or system described above, Vendor will promptly notify Buyer in writing of such introduction and, at its own cost, assist Buyer in reducing the effects of such Malicious Code. If Malicious Code causes an interruption of the Services, a loss of operational efficiency, or loss of data, Vendor will assist Buyer in mitigating and restoring such losses. Vendor will not insert into any software used to perform hereunder any code that would have the effect of disabling or otherwise shutting down all or any portion of the Services. With respect to any disabling code that may exist in such software, Vendor represents and covenants that it will not invoke such disabling code at any time in a manner that might affect Buyer or the Services. No limitation on damages contained in this Agreement shall prevent Buyer from recovering from Vendor as set forth herein.
Vendor agrees to the extent applicable to its obligations under this Agreement, to comply fully with all applicable export and import laws and regulations of Canada, the United States and any other applicable jurisdiction (“Export Laws”) to assure that neither the Products, Services, nor any product of which the Products form a part, are: (i) exported or imported, directly or indirectly, in violation of Export Laws; or (ii) are used for any purposes prohibited by Export Laws including. Further, Vendor agrees that it has a valid Export Policy in place or alternatively will agree to internally implement and follow Buyer’s Export Control Policy as set forth in this subsection:
Prohibited Lists. Various U.S. Government agencies maintain a number of lists that identify individuals or entities barred or otherwise restricted from entering into certain types of export, trade and financial transactions with U.S. persons. All customers and foreign agents must be screened using these lists to ensure that Buyer does not engage in a transaction with a barred entity or person. All Buyer employees have an obligation to notify Buyer’s Human Resources Department if they are identified on any of these lists. A consolidated screening list can be found at http://www.bis.doc.gov/index.php/policy-guidance/lists-of-parties-of-concern.
Embargoed Countries. No transactions of any kind may be negotiated or executed for any customers or end-users in Cuba, Iran, North Korea, or Northern Sudan, unless these sales are approved by the Buyer’s in-house counsel. These countries are subject to comprehensive U. S. economic sanctions and trade embargoes and prohibit any products, technology or monies to be diverted to any customer or end user in Cuba, Iran, North Korea, or Sudan. Note that while these embargoes are for all trade, the United States has limited boycotts of certain countries (e.g. Syria and Libya), so it is important to check if any party to a proposed transaction is from a country for which the United States has imposed a complete or partial embargo. When in doubt, discuss any potential transaction with the Buyer in-house legal department. Detailed country-by-country information about these trade sanctions is available at: http://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx.
- Notices. All notices, requests and other communications required or permitted by this Agreement or by law to be served upon or given to a party by the other party shall be deemed duly served and given when received after being delivered by hand or courier service or sent by confirmed facsimile or certified mail, return receipt requested, postage prepaid, to the address set forth below the party’s signature. Notices sent by confirmed facsimile to the applicable address shall be deemed given on the date of confirmation of receipt of such facsimile, provided said notice is confirmed by any other means provided herein and such confirmation is sent within one business day thereafter (or, in the case of hand or courier service delivery, received within one business day thereafter). Each party may change its address for the purposes of this Section by giving notice of change to the other party in the manner provided in this Section.
- Governing Law. This Agreement, any disputes or claims arising out of or relating to this Agreement or any Order Form, and any questions concerning its validity, construction or performance shall be governed by the laws of the Texas (without regard to its conflict of law principles). Vendor hereby consents to the exclusive jurisdiction of the state and federal courts of the state of Texas in all matters arising hereunder.
- Subcontracting; Assignment. Vendor shall not subcontract all or any portion of its obligations under this Agreement without the prior written approval of Buyer. Subject to the foregoing, if Vendor uses any subcontractor, Vendor shall be fully responsible for services performed by such subcontractor to the same extent as if the services were performed directly by Vendor.
- Successors and Assigns. This Agreement and all Order Forms shall inure to the benefit of, be binding upon, and be enforceable by and against the parties and their respective successors and permitted assigns. Buyer shall have the right to assign all or any part of this Agreement or Order Forms without Vendor’s consent. Vendor shall not have the right to assign all or any portion of this Agreement or Order Forms without the prior consent of Buyer, which may be granted or withheld in Buyer’s sole discretion.
- Independent Contractor; No Third Party Beneficiaries. Vendor acknowledges and agrees that in performing its obligations under this Agreement, Vendor will be acting solely as an independent contractor, responsible for the means and methods used in performing its services under this Agreement and neither Vendor nor any of its employees, consultants, subcontractors or Vendors shall be deemed to be employees of Buyer for any purpose. Subject to Section 23.(c), all persons employed by Vendor in the performance of any Services are employees of Vendor. Vendor shall carry such employees on the payroll of Vendor and make all required payments to state, federal and local authorities covering payroll taxes and any other payments relating to such persons’ employment. Nothing contained in this Agreement shall be construed or constitute any party as the employee, agent, partner, joint venturer or contractor of any other party. This Agreement is made and entered into for the sole protection and legal benefit of the parties, and their permitted successors and assigns, and no other person or entity shall be a direct or indirect legal beneficiary of, or have any direct or indirect cause of action or claim in connection with, this Agreement.
- Modification, Severability, Waiver and Entire Agreement.
- The terms and provisions of this Agreement, including any exhibits or schedules, may only be modified, amended or supplemented by written agreement duly executed by each party. No failure or delay by a party in exercising any right hereunder and no course of dealing between the parties shall operate as a waiver thereof. No waiver of any breach of the terms of this Agreement shall be effective unless such waiver is in writing and signed by the party against whom such waiver is claimed. No waiver of any breach shall be deemed to be a waiver of any other or subsequent breach.
- If any provision of this Agreement for any reason shall be held invalid, illegal or unenforceable by any governmental authority, then such holding shall not invalidate or render unenforceable any other provision hereof and such portions shall remain in full force and effect as if this Agreement had been executed without the invalid, illegal or unenforceable portion. If any provision of this Agreement is declared invalid, illegal or unenforceable, then the parties shall promptly renegotiate to restore this Agreement as near as possible to its original intent and effect.
- This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same document. This Agreement supersedes all prior agreements and understandings among the parties with respect to the subject matter hereof.
- Consent to Electronic Contracting. By entering into this Agreement, the parties consent during the term of this Agreement (i) to conduct this transaction and enter into Order Forms, and other necessary documentation, electronically, (ii) to use electronic signatures and records in connection with this Agreement, any amendment of this Agreement and any Order Form or other documents issued under this Agreement, and (iii) to receive electronic mail and other electronic communication with respect to any document relating to or regarding this Agreement and the services or products Vendor provides to Buyer. The Parties may provide documents to each other electronically by emails that include attachments or embedded links.