These terms and conditions (the “Terms and Conditions”) shall apply and be incorporated into and a part of any Purchase Order for any Services performed and/or Goods delivered to CyrusOne or its affiliates (“Buyer”) by vendor (“Seller”) for the services and/or goods specified in the Purchase Order, unless a written agreement signed by Buyer and Seller otherwise governs, in which case, the terms of the parties’ signed, written agreement shall govern. The contract documents consist of these Terms and Conditions and the applicable Purchase Order, any attachments and addenda thereto, and are as fully a part of the parties’ agreement as if attached to these Terms and Conditions or repeated herein (collectively the “Agreement”). By completing Buyer’s onboarding process, providing any Services and/or Goods to Buyer under a Purchase Order, and/or submitting an invoice for payment, Seller indicates assent to these Terms and Conditions and expressly acknowledges and agrees that it is bound by all terms contained in the Agreement.
1. DEFINITIONS; ADDITIONAL TERMS
i. “Deliverables” shall include (a) all documents, goods, 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 or deliverables, of any form or media, developed or created by Seller or any Subcontractor (defined below) of Seller in connection with this Agreement or delivered by Seller or provided by Seller to Buyer under this Agreement; (b) all embedded software, tools, molds, dies, parts, supplies, jigs, fixtures, plans, drawings, specifications and all other equipment, materials and property that are (i) furnished by Seller (or its Subcontractors) to Buyer, (ii) procured, produced, manufactured or fabricated by Seller (or its Subcontractors) in connection with its (or their) performance hereunder or (iii) are in any manner paid for directly or indirectly by Buyer; and (c) all intellectual property, invention or know-how that Seller or its Subcontractors produce in performing this Agreement.
ii. “Goods” means the items, materials, equipment, hardware, tooling, and/or parts to be supplied by Seller as set forth in the Purchase Order.
iii. “Intellectual Property Rights” means all rights in and to confidential and proprietary information, discoveries, ideas, computer programs, formulae, processes, business plans, data, materials, copyrights, trade secrets, know-how, trademarks (including related goodwill), mask works, designs, patents, inventions, and other intellectual property rights in any jurisdiction throughout the world and all related rights of priority under international conventions with respect to them, including all pending and future applications and registrations for the foregoing and continuations, divisions, continuations-in-part, reissues, extensions, and renewals of the foregoing.
iv. “Purchase Order” means an individual ordering document or statement of work for Seller’s provision of Goods and/or Services pursuant to this Agreement.
v. “Services” means all services furnished by Seller and purchased by Buyer pursuant to the Agreement and/or listed in the Purchase Order, and includes all Goods and Deliverables and other ancillary goods, products, and materials provided by Seller to Buyer under the Purchase Order.
vi. “Software” means the software products and/or goods, including but not limited to executables, database objects (tables, indexes, stored procedures and triggers), object code, source code, and reports for those software products and/or goods identified in a Purchase Order, any software provided by Seller for use in connection with the Goods and Deliverables, and/or software embedded, included and/or incorporated in the Goods and/or Deliverables; all related documentation; and all additions, improvements, corrections and updates to the Software.
vii. “Subcontractor” means any subcontractor(s), vendor(s), consultant(s), supplier(s), independent contractor(s), and similar agent(s) and representative(s) of Seller, and their affiliates.
2. PERFORMANCE OF SERVICES AND DELIVERY OF GOODS/DELIVERABLES
Time is of the essence of this Agreement. Seller shall provide the Services, Goods and/or Deliverables as described and in accordance with the location, quantities and dates (“Contract Time”) set forth in the Purchase Order.
i. Shipment/Delivery; Title to Goods. All Goods furnished under this Agreement shall be delivered Delivery Duty Paid to Buyer’s facility and/or the property (as set forth in the Purchase Order) in accordance with the most up-to-date requirements set forth by Incoterms. Seller shall ship and deliver all Goods in accordance with the instructions and specifications set forth in the Purchase Order. If the Goods are not shipped and delivered in accordance with Buyer’s instructions and specifications, Seller shall be responsible for any additional costs incurred by Buyer as a result of Seller’s failure to comply with such instructions and/or specifications. Title to all Goods shall pass to Buyer upon Buyer’s receipt of Goods at Buyer’s facilities or the location set forth in the Purchase Order, or as mutually agreed between the parties in writing (“Buyer Location”). Risk of loss to the Goods shall remain with the Seller until title passes to Buyer.
ii. Packing, Packaging, Containers, and Transportation. The Buyer’s Purchase Order number must appear on all shipping documents, bills of lading, packing slips and freight tickets submitted by Seller. Seller shall pack all goods for shipment according to applicable law, industry standards, and Buyer’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in an undamaged condition. Seller agrees to furnish to Buyer, at Seller’s expense, material safety data sheets for all Goods, as applicable. To the extent applicable to the Goods, prior to, and with, the shipment of any Goods, Seller shall furnish Buyer with sufficient warnings and notices in writing (including appropriate labels) of any toxic or hazardous materials that are an ingredient or any part of the Goods together with such special handling instructions as may be necessary to best prevent bodily injury or property damage in the handling, transportation, processing, use, storage, or disposal of such Goods.
iii. Quantity. Seller shall deliver the quantity of Goods specified in the Purchase Order. Buyer may reject all overages or shortages of the quantity of Goods. Any rejected Goods shall be returned to Seller at Seller’s sole risk and expense. Buyer shall have no obligation to keep, preserve, or pay (in whole or in part) for any such nonconforming Goods. If Buyer does not reject the Goods and instead accepts the delivery of Goods at a reduced quantity, the Contract Price shall be adjusted on a pro-rata basis. If the Buyer does not reject the Goods and instead accepts delivery of the Goods at an increased quantity, there shall be no adjustment to the Contract Price.
iv. Inspection and Rejection of Nonconforming Goods. Buyer has the right to inspect the Goods, Services and/or Deliverables after delivery and/or Seller’s performance under the Agreement. Buyer, at its sole option, may inspect all or a portion of the Goods, Services and/or Deliverables, and may reject all or a portion if it determines the Goods, Services and Deliverables are nonconforming or defective. If Buyer rejects any portion of the Goods, Services and/or Deliverables, Buyer has the right, at its sole option and in addition to any other rights or remedies it may have, to: (a) terminate the Agreement, (b) accept the Goods, Services and/or Deliverables at a reasonably reduced price, as determined by the Buyer, (c) reject the Goods, Services and/or Deliverables and require repair or replacement of the rejected Goods, Services and/or Deliverables, (d) reject a portion of the Goods, Services and/or Deliverables and accept a portion of the Goods, Deliverables and/or Services at a reduced price, or (e) correct, rework, and/or repair the Goods, Services and Deliverables with all costs associated therewith to be charged to and paid by Seller. If Buyer requires replacement of the Goods, Services and/or Deliverables, Seller shall, at its expense, within five (5) days of written notice from Buyer, replace the nonconforming or defective Goods, Services and/or Deliverables and pay for all related expenses, including but not limited to transportation charges for the return and replacement of the defective Goods, Services and/or Deliverables. If the Seller fails to timely deliver replacement Goods, Services and/or Deliverables, Buyer may replace them with services, goods and/or deliverables from a third party and charge the Seller the cost thereof and/or terminate this Agreement for cause pursuant to Section 12(iii). If Buyer elects to accept nonconforming, require replacement, or correct, rework and/or repair nonconforming Goods, Services and/or Deliverables in accordance with (b), (c), (d), or (e) of this section, the terms of this Agreement shall apply to all such replacements and the replacement Goods, Services and Deliverables shall have the same warranties as set forth in this Agreement from the date the Goods, Services and/or Deliverables are accepted. Buyer shall have no obligation to pay Seller until Goods, Services and Deliverables are adequately remedied.
v. Seller’s Acceptance of the Terms of the Agreement. The parties do not intend for these Terms and Conditions to be signed, but instead intend for these Terms and Conditions to be accepted by the Seller’s indication of acceptance by participating in and/or completing Buyer’s onboarding process, submitting invoices requesting payment for Seller’s performance hereunder, and/or by performance of its obligations under the Agreement. Seller’s commencement of performance of its obligations hereunder shall serve as evidence of and shall constitute Seller’s acceptance of these Terms and Conditions. In addition, submission of an invoice or other written acknowledgement of the Agreement by Seller (including, but not limited to, submission of any advance shipping notification, evidence of shipment of Goods or Deliverables, other documentation concerning Seller payables or any other documentation demonstrating Seller’s performance pursuant to the Agreement, as may be deemed acceptable to Buyer in its sole discretion, and such notification, evidence, or document is transmitted to Buyer by electronic or any other means that can be reduced to writing) will constitute an independent written acknowledgement of Seller’s acceptance of these Terms and Conditions.
Pricing for, and the total price of, the Goods, Services and Deliverables shall not exceed the amounts set forth in the
Purchase Order (“Contract Price”). The Contract Price includes all packaging, transportation cost to the Buyer Location, and all insurance, customs duties, fees, and applicable federal, state and local taxes, including but not limited to all sales, use or excise taxes. Seller warrants that the Contract Price is complete and that no additional charge of any type will be added or assessed without Buyer’s prior express written consent and agreement to the adjusted price.
4. INVOICES AND PAYMENT
Seller shall submit invoices on a monthly basis or as set forth in the Purchase Order and no more than sixty (60) days after Goods are delivered or Services are rendered. Seller shall not request and waives the right to payment for invoices submitted more than sixty (60) days after Goods are delivered or Services are rendered. As a condition precedent to the payment of any monies otherwise due hereunder, Seller must properly perform all obligations set forth in the Agreement and performance must not be disputed by Buyer. All invoices must contain the Purchase Order number and must be emailed to the attention of [email protected]. Properly submitted and undisputed invoices for Goods and/or Services shall be paid within forty-five (45) days from the date of Buyer’s receipt and approval of an invoice. Buyer reserves the right to make payment to Seller electronically (via wire transfer, EFT or ACH). 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 Seller. As requested by Buyer, Seller shall provide lien waivers and claim releases with each invoice, which address payment to Subcontractors provided in the prior month. By submitting an invoice, and as a condition precedent to payment, Seller reaffirms its assent to all terms and conditions contained in the Agreement.
5. TAXES AND EMPLOYEE BENEFITS
Seller shall pay when due all taxes, tariffs, permits, assessments, and duties of whatever kind applicable to the Goods and/or Services, and/or which are imposed in connection with Seller’s performance under the Agreement. Buyer shall not be responsible for any late fees, penalties, taxes, or other payments due to Seller’s failure to invoice Buyer for taxes or to timely remit payments of taxes to the applicable authorities. Buyer shall have no liability for the payment or reimbursement of, and Seller 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 Goods. If Buyer is required to remit any such taxes, then the amount shall be deducted from any sums becoming due to Seller. Seller shall indemnify, defend and hold harmless Buyer from any claims for such taxes. Seller shall be solely responsible for payment and reporting of all compensation, salaries, benefits, and employer taxes relating to all of its personnel providing any Services hereunder. Seller shall identify and advise Buyer of all tax exemptions, rebates, and savings known to Seller and available in the jurisdiction for performance under the Agreement. All tax exemptions, rebates and/or savings shall accrue to the Buyer.
6. CHANGE ORDERS
Buyer may at any time, by written instructions, order changes to the Services or Goods. Seller shall, within five (5) days of receipt of a requested change, notify Buyer if the request will cause a change in the Contract Price or Contract Time. Seller acknowledges that a change request may or may not entitle Seller to an adjustment in compensation or the performance deadlines under this Agreement. Promptly after receipt of the Seller’s estimate, the parties shall negotiate and agree in writing on the terms of such change (a “Change Order”). Buyer shall not be bound by any Change Order unless signed by Buyer.
7. WARRANTIES AND REMEDIES
i. General Warranty. Seller expressly represents and warrants that all Goods, Services and Deliverables provided to Buyer (a) shall be free and clear of any and all liens, claims, security interests, and (b) will comply with all applicable federal, state, provincial and local statutes, laws, regulations, orders, and ordinances, including, without limitation, all environmental and occupational health and safety laws and industry standards.
ii. Goods Warranty. Seller expressly represents and warrants that all Goods will: (a) be free from any defects in workmanship, material, and design; (b) conform to applicable specifications, drawings, designs, samples, and other requirements specified by Buyer; (c) be fit for their intended purpose and operate as intended; and (d) be merchantable. These warranties survive any delivery, inspection, acceptance, or payment of or for the Goods by Buyer.
a. Emissions Warranty. To the extent the Goods contain emissions-related components, Seller shall timely provide to Buyer, emission-related warranty and maintenance instructions approved, and in conformance with, governmental authorities for the Goods. Should Seller fail to do so, Buyer may include in its operator’s manuals an emissions-related warranty and maintenance instructions, which associated costs shall be paid by the Seller and for which Seller shall, to the fullest extent permitted by law, indemnify and hold harmless the Buyer. Seller shall reimburse Buyer for costs Buyer incurs in performing emissions-related warranty work on the Goods.
iii. Services Warranty. Seller represents and warrants that (a) Seller shall perform the Services in a professional and workmanlike manner in accordance with highest recognized industry standards for similar services, (b) Seller shall devote adequate resources to meet its obligations under this Agreement using properly licensed personnel with required skill, experience and qualifications, and (c) all Services and Deliverables will be complete and accurate, and conform to all specifications and criteria provided by Buyer.
iv. Warranties Cumulative. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any exclusion or limitation of liability clause or any other clause in the Seller’s documents which purports to restrict Buyer’s remedies is hereby objected to, rejected, and superseded by the Seller’s warranties and other obligations set forth in this Agreement. All warranties survive inspection or acceptance of and payment for the Goods, Services and Deliverables, and completion, termination, or cancellation of the Agreement. Any applicable statute of limitations associated with the foregoing warranties shall run from the date of Buyer’s discovery of the noncompliance of the Goods, Services or Deliverables.
v. Remedies. Within five (5) days of written notice of Seller’s default on any warranty, Seller will promptly replace or repair the defective or nonconforming Goods, repair, re-perform, or accelerate the Services, and/or correct the Deliverables, as requested and/or necessary, in Buyer’s sole discretion, at the Seller’s sole cost and expense. If Seller is unable to cure its default within five (5) days, then Buyer will, in addition to other remedies available hereunder, including but not limited to Buyer’s right to cancel all or the remainder of the Agreement and seek reimbursement of all related costs, be entitled to a full and prompt refund in respect of such nonconforming Goods, Services and Deliverables and Seller shall be liable to Buyer for all costs (including but not limited to the costs of repairing or re-procuring the Goods, completing and/or re-performing the Services, and/or completing the Deliverables, as well as all attorney’s fees, expert and professional fees, and court and arbitration costs), losses, damages, penalties, and expenses incurred by Buyer and/or related to Seller’s breach of the Agreement and/or any warranty.
8. INTELLECTUAL PROPERTY
i. Buyer’s Intellectual Property Rights. Buyer owns all right, title, and interest in and to its existing Intellectual Property Rights. Sections 8(i)(b) and 8(i)(c) are alternative provisions. All “off the shelf” Goods and Software purchased by Buyer are subject to Section 8(i)(c). All other Work Product, Deliverables, and Goods purchased by or provided to Buyer shall be subject to Section 8(i)(b). The remaining sections of this Section 8 apply to all Goods, Deliverables, Software, and Work Product provided by Seller regardless of whether Section 8(i)(b) or Section 8(i)(c) applies.
a. Buyer’s Intellectual Property Rights. Nothing in this Agreement shall be construed to grant any rights in Buyer’s Intellectual Property Rights to Seller and all Buyer’s Intellectual Property Rights shall remain the sole and exclusive property of Buyer. Without limiting the foregoing, Seller shall not use any of Buyer’s marks (including CYRUSONE) in any advertisement, publication, presentation, or otherwise without Buyer’s advance written consent and subject to a separate written license agreement. Buyer shall remain the sole and exclusive owner of all materials that embody Buyer’s Intellectual Property Rights (“Buyer’s Materials”) as well improvements, modifications, and derivative works based on Buyer’s Intellectual Property Rights or Buyer’s Materials, including the Intellectual Property Rights arising out of or embodied by the foregoing. If Buyer provides Seller with any Buyer’s Materials for use in performing Seller’s obligations under this Agreement, Seller shall protect Buyer’s Materials and Buyer’s Intellectual Property Rights arising out of them as confidential in accordance with the confidentiality provisions in this Agreement, Seller shall use such Buyer’s Materials only during the term of the applicable Purchase Order and only for performance of Seller’s obligations to Buyer under the Agreement, only in accordance with any restrictions imposed by Buyer, and shall discontinue use of and return all Buyer’s Materials in good condition (normal wear and tear excepted) to Buyer upon completion, termination, or cancellation of the Purchase Order.
b. Ownership. The work product related to all Services and all Goods, Software, Deliverables (collectively “Work Product”) prepared or furnished by Seller pursuant to this Agreement, including all Intellectual Property Rights arising out of or embodied by such Work Product, are and shall become the property of Buyer whether or not the Services are completed or the Work Product is delivered and accepted. Seller shall deliver to Buyer all Work Product as and when created or developed under this Agreement, including without limitation all inventions, ideas, discoveries, innovations, developments, products, methods, services, software, source code, object code, documentation, specifications, executables, drawings, designs, reports, computations, calculations, working papers, documents, and other embodiments of the Work Product.
1. Work for Hire. Seller agrees that all Work Product is work specially commissioned by Buyer and shall be considered work made for hire with all Intellectual Property Rights automatically and exclusively vesting in Buyer.
2. Assignment. If any Work Product may not, by operation of law, be considered work made for hire by Seller for Buyer, Seller agrees to and hereby does assign, transfer, and convey the worldwide right, title, and interest in and to the Work Product, and the Intellectual Property Rights arising out of or embodied by the Work Product to Buyer, including without limitation the right to sue, counterclaim, and recover for all past, present, and future infringement, misappropriation, or dilution of Intellectual Property Rights, and all rights corresponding to such Intellectual Property Rights throughout the world. This assignment shall become effective immediately upon the earlier of execution of this Agreement or creation of the Work Product, without the need for further consideration or written agreement among the parties.
3. Confirming Acts. During and after the term of this Agreement, Seller shall, upon the reasonable request of Buyer at any time, perform such further acts, execute documents, and give evidence as may be necessary or desirable to confirm, evidence, transfer, perfect and defend Buyer’s ownership of the Work Product, including the Intellectual Property Rights arising out of or embodied by the Work Product. During and after the term of this Agreement, upon Buyer’s request, Seller shall assist and cooperate with Buyer in Buyer’s application for, obtaining, perfecting, and transferring to Buyer the Work Product and all Intellectual Property Rights arising out of or related to the Work Product in any jurisdiction in the world, in maintaining, protecting, and enforcing the same, including, without limitation, by executing and delivering to Buyer any and all applications, oaths, declarations, affidavits, waivers, assignments, and other documents and instruments as shall be requested by Buyer. Seller hereby irrevocably grants Buyer the power of attorney to execute and deliver any such documents on Seller’s behalf in its name and to do all other lawfully permitted acts to transfer the Work Product and Intellectual Property Rights arising out of or embodied by the Work Product to Buyer and further transfer, issuance, prosecution, and maintenance of all Intellectual Property Rights to the fullest extent permitted by law if Seller does not promptly cooperate with Buyer’s request. This power of attorney is coupled with an interest.
4. Moral Rights. Seller hereby irrevocably waives, to the extent permitted by applicable law, any and all claims Seller may now or hereafter have in any jurisdiction to all rights of paternity, attribution, integrity, disclosure, and withdrawal and any other rights that may be known as “moral rights” with respect to all Work Product and all Intellectual Property Rights arising out of the foregoing.
c. License Grant. To the extent that any Work Product (including any software, including without limitation Software, embedded in the Work Product) delivered to Buyer under this Agreement includes any of Seller’s Intellectual Property Rights, and ownership of such Intellectual Property Rights is not automatically vested or transferred to Buyer, Seller shall notify Buyer. Regardless of whether Seller so notifies Buyer, Seller hereby grants Buyer an unrestricted, freely transferable and sublicensable, worldwide, irrevocable, fully paid up, royalty-free, perpetual license and right to use, reproduce, publish, distribute, display, perform, modify, make derivative works from, import, make or manufacture, have made or manufactured, sell, offer for sale, and otherwise use Seller’s intellectual property, including without limitation (i) in the course of selling, distributing, delivering, and/or using the Work Product supplied or furnished to Buyer in any manner and for any purpose as Buyer may in its sole discretion determine, and (ii) in connection with the development, sale, distribution, delivery, use, or manufacture of Buyer’s goods or services. This license shall survive any termination or expiration of the Purchase Order or this Agreement.
ii. Representations and Warranties. Seller represents and warrants to Buyer that (a) the Work Product does not include or use any third party materials unless authorized by Buyer in writing in advance, and in that case, Seller shall have obtained for Buyer the worldwide, unlimited, fully paid-up, royalty free, irrevocable, perpetual, transferable, sublicensable, right and license to use, reproduce, publish, distribute, display, perform, modify, make derivative works from, import, make or manufacture, have made or manufactured, sell, offer for sale, and otherwise use such third party materials; (b) without limiting the foregoing, the Work Product does not include or use any open source software program or other third party software or component; (c) Buyer will receive good and valuable title to the Work Product and all Intellectual Property rights arising out of or embodied by it, free and clear of all liens, security interests, and other encumbrances of any kind; (d) when delivered, the Work Product shall contain no virus, Trojan horse, worm, or other malware or malicious code of any kind; (e) the Work Product shall be Seller’s original creation; (f) neither the Work Product nor the use of the Work Product will infringe, misappropriate, or otherwise violate any Intellectual Property Right or other right of any third party and the Work Product will comply with all applicable laws; (g) all Work Product will perform in accordance with its documentation and specifications; (h) the Work Product will be free of damage and defect in design, material, and workmanship; (i) there is no pending or threatened claim against Seller regarding Intellectual Property Rights; (j) Seller shall prepare and deliver with the Software all documentation and specifications along with executables, source code, object code, and other components necessary or desirable to make full use of and commercially exploit, support, and maintain the Software; (k) Seller has not delegated any obligations to or used any Subcontractors to perform any of the Services or create any part of the Work Product without Buyer’s advance written permission, and, if Subcontractors are used, Seller has secured the commitment, assignment, and rights from such Subcontractors necessary to transfer and/or license the Intellectual Property Rights to Buyer in accordance with Section 8(i)(b) and 8(i)(c) as applicable; (l) all Work Product shall conform to and perform in accordance with its documentation, specifications, and Buyer’s requirements; and (m) Seller has full right, power, title, and authority to grant the licenses and make the assignments, representations, and warranties set forth in this Agreement without need for consent from any third party. These representations and warranties survive any delivery, inspection, acceptance, or payment of or for the Work Product by Buyer. In addition to Seller’s other obligations and Buyer’s other remedies, and at no additional charge to Buyer, if Seller is in breach of any of the foregoing representations or warranties, Seller shall re-perform and/or re-provide the Services and the Work Product to cure the deficiencies and defects and other nonconformities of the foregoing.
iii. Infringement. Seller shall indemnify, reimburse, defend and hold harmless Buyer and its parent companies, subsidiaries, affiliates, and their officers, directors, managers, shareholders, partners, members, employees, representatives, agents and permitted assigns (each, an “Indemnitee”) from and against any and all claims, causes of action, liabilities, penalties, fines, deficiencies, damages, judgments, settlements, interest, award(s), costs, expenses (including reasonable attorneys’ fees and disbursements of counsel), and losses arising out of or related to any (a) actual or alleged breach of any representation or warranty by Seller; (b) allegation that the Services, Work Product or Buyer’s or any Indemnitee’s (or their licensees or transferee’s) use of such Services and/or Work Product infringe(s), misappropriate(s), or otherwise violates the Intellectual Property Rights or other proprietary or other rights of any third party; and (c) efforts by Buyer and/or any Indemnitee to prove a claim is indemnifiable (including but not limited to the costs of enforcing any right to indemnification hereunder and pursuing any insurance providers). In the event of any claim described in subsection (b) of the preceding sentence (and in addition to its other obligations) Seller shall, at Buyer’s exclusive discretion and at Seller’s sole cost and expense: (a) obtain for Buyer the right to continue using the Services and Work Product that are the subject of the claim, (b) replace the Services and Work Product that are the subject of the claim with non-infringing Services and Work Product that perform the same function and have the same features and that are acceptable to Buyer, (c) modify the Services and Work Product so that they become non-infringing but still perform the same functions and have the same features in a manner acceptable to Buyer, and/or (d) refund the purchase price for the Services and Work Product and reimburse all Buyer’s expenses resulting from the infringement.
9. FORCE MAJEURE
i. A “Force Majeure Event” is a delay in performing material obligation(s) under this Agreement, which Buyer, in its sole discretion, determines: (a) materially impacts and delays the delivery of the Goods or performance of the Services; (b) the Seller did not contribute in whole or in part to the delay; (c) is due to fires, floods, pandemics, freight embargoes, unusually severe weather which precludes safe delivery of the Goods and/or performance of the Services, earthquakes, issuance of an order of Court or other public authority having jurisdiction or act of government, war or national emergency, or priorities arising therefrom; (d) the Seller could not have otherwise provided the Goods or Services and could not have reasonably foreseen or mitigated the delay; and (e) the Seller complied with the notice requirements set forth herein and otherwise satisfied its obligations under the Agreement. A Force Majeure Event shall not include any strike, lock-out, labor dispute or inability to obtain labor, utilities, services or raw materials or any other event that could have been reasonably anticipated or mitigated by Seller. When the Buyer determines an event qualifies as a Force Majeure Event, Buyer may either (a) terminate the Agreement with no liability to either party or (b) appropriately extend the Contract Time by the number of days of delay actually and directly affected by such occurrence. Any extension of Contract Time shall be reduced by the net of any delays caused by or a result of the fault or negligence of Seller or which are otherwise the responsibility of Seller. After Buyer elects whether to proceed with termination or an extension of time due to a Force Majeure Event, Seller agrees that its sole remedy for a Force Majeure Event is either termination of this Agreement with no liability to either party or an extension of time, as appropriate due to Buyer’s election. Seller waives all claims to monetary compensation or damages of any kind arising from any delay (including, but not limited to, Force Majeure Events). If Buyer determines a delay is not a Force Majeure Event, Seller shall not be entitled to an extension of time and Buyer shall be entitled to recover all damages and costs (including, but not limited to, attorney’s fees) incurred by Buyer as a result of such delay. Seller agrees to undertake reasonable steps to mitigate the effects of all delays.
ii. In the event delays to the Services or delivery of the Deliverables or Goods are encountered for any reason, Seller shall provide prompt written notice to the Buyer (not more than five (5) days after the event giving rise to the delay) of such delay. Seller’s failure to submit timely notice of any delay shall be deemed a waiver of Seller’s right to request an extension of time for a Force Majeure Event.
To the fullest extent permitted by law, Seller shall indemnify and hold harmless the Indemnitees from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers, incurred by any Indemnitee (collectively, “Losses”), arising out of or resulting from the acts, omissions, or negligence, of any degree, of Seller or its Subcontractors or anyone directly or indirectly employed by them or anyone for whose acts they may be liable, and/or Seller’s breach of this Agreement, regardless of whether such Losses are partially or wholly attributable to any Indemnitee’s conduct. Seller’s indemnity obligations shall include, but not be limited to, claims pertaining to bodily injury, sickness, disease or death, property damage, payment disputes, liens, breach of contract, warranty, tort, data breach or any other type of claim asserted against any Indemnitee arising from the Agreement. Such obligation shall not be construed to negate, abridge, modify, or replace any other indemnification obligations or rights that would otherwise exist. Seller shall not enter into any settlement without Buyer’s and the Indemnitee’s prior written consent. In the event Seller’s indemnity obligations under this clause are partially prohibited or unenforceable under applicable law, the parties hereby acknowledge and agree Seller’s indemnity obligations shall remain enforceable to the fullest extent permitted by law and that the breadth of Seller’s indemnity obligations shall only be limited or modified to the extent necessary to comport with applicable law.
11. INSURANCE REQUIREMENTS
i. Before commencing the Services, and as a condition precedent to payment and Seller’s exercise and enforcement of any other rights under this Agreement, the Seller and its Subcontractors shall procure, and maintain in full force, the insurance coverages and amounts required under this section (“Insurance Requirements”). Coverages shall include:
a. Commercial General Liability (CGL):
1. Seller shall provide CGL insurance in a form reasonably equivalent to the latest filed and approved ISO CG 00 01 with commercially reasonable endorsements covering operations by or on behalf of Seller, providing insurance for bodily injury liability and property damage liability for the limits of liability indicated below. The CGL policy shall include coverage for liability arising from premises, operations, independent contractors, products and completed operations, personal injury and advertising injury, contractual liability insuring the obligations assumed by Seller in this Agreement, broad form property damage (including completed operations), and explosion, collapse and underground hazards.
2. Except with respect to bodily injury and property damage included within the products and completed operations hazards, the aggregate limit, where applicable, shall apply separately to Seller’s Goods, Deliverables and/or Services under this Agreement.
3. Seller’s CGL policy shall not contain an exclusion or restriction of coverage for the following: (a) claims by one insured against another insured, if the exclusion or restriction is based solely on the fact that the claimant is an insured, and there would otherwise be coverage for the claim; (b) claims for property damage to the Seller’s Goods, Deliverables and/or Services arising out of the products-completed operations hazard where the damaged Goods or the Goods, Deliverables and/or Services out of which the damage arises was performed by a Subcontractor; (c) claims for bodily injury other than to employees of the insured; (d) claims for indemnity under provisions of the Agreement addressing claims arising out of injury to employees of the insured; (e) claims or loss excluded under a prior work endorsement or other similar exclusionary language; (f) claims or loss due to physical damage under a prior injury endorsement or similar exclusionary language; (g) claims related to roofing, if the Goods, Deliverables and/or Services involve roofing; (h) claims related to exterior insulation finish systems (EIFS), synthetic stucco or similar exterior coatings or surfaces, if the Goods, Deliverables and/or Services involves such coatings or surfaces; (i) claims related to earth subsidence or movement, where the Goods, Deliverables and/or Services involves such hazards; and (j) claims related to explosion, collapse and underground hazards, where the Goods, Deliverables and/or Services involves such hazards.
b. Automobile Liability Insurance. Seller shall carry automobile liability insurance, including coverage for all owned, hired and non-owned automobiles on and off-site. The limits of liability shall be not less than the required coverage set forth in the Insurance Requirements below for the combined single limit each accident for bodily injury, death of any person, and property damage arising out of the ownership, maintenance and use of those motor vehicles along with any other statutorily required automobile coverage. If the Goods, Deliverables and/or Services involve transportation of hazardous or regulated substances, hazardous or regulated wastes and/or hazardous or regulated materials, Seller shall provide pollution auto coverage equivalent to that provided under the ISO pollution liability-broadened coverage for covered autos endorsement (CA 99 48), and the Motor Carrier Act endorsement (MCS 90). Any statutorily required “No-Fault” benefits and uninsured/underinsured motorists coverage shall be included. The Auto limits can be met by carrying a combination of primary and excess liability.
c. Excess Liability Insurance. Seller shall carry excess liability insurance written on an occurrence basis in excess of the Commercial General Liability, Employer’s Liability, and Business Auto Liability Insurance identified herein, and which is at least as broad as each and every one of the underlying policies. The umbrella/excess liability policies shall be written on a “drop-down” and “following form” basis, with only such exceptions as Buyer shall expressly approve in writing. The amounts of insurance required herein may be satisfied by purchasing coverage for the limits specified or by any combination of underlying and umbrella limits, so long as the total amount of insurance is not less than the limits specified in the below Insurance Requirements for these types when added to the limit for this coverage. The aforementioned policies of insurance shall be specifically scheduled as underlying insurance. Such insurance shall be maintained for ten (10) years after completion of performance under the Agreement and acceptance of the final payment, or to the applicable Statute of Repose, whichever is less.
d. Worker’s Compensation and Employer’s Liability Insurance.
1. Worker’s Compensation insurance shall be provided to meet the state statutory obligations of the employer as required by applicable law or regulation.
2. Employer’s Liability insurance shall be provided in amounts not less than those set forth in the Insurance Requirements below.
3. If there is an exposure of injury to Seller’s or a Subcontractor’s employees under the U.S. Longshoreman and Harbor Workers’ Compensation Act, the Jones Act or under laws, regulations or statutes applicable to maritime or railroad employees, coverage shall be included for such injuries or claims.
4. If Seller leases one or more employees through the use of a payroll, employee management, or other similar company, then Seller must procure worker’s compensation insurance written on an “if any” policy form, including an endorsement providing coverage for alternate employer/leased employee liability. Such insurance shall be in addition to the workers’ compensation coverage provided to the leased employee by the payroll, employee management, or other similar company.
5. All workers compensation policies must contain a waiver of subrogation in favor of Buyer.
6. Seller shall be responsible for all documentation, processing, and management of workers’ compensation claims and related procedures for individuals assigned by Seller to perform Services for Buyer (“Workers”). Seller shall maintain compliance with applicable workers’ compensation laws, regulations, decrees and governmental orders related to workers’ compensation in all jurisdictions which govern the Services and the Workers’ conduct or work. Seller shall investigate all claims, including but not limited to fraudulent claims, and coordinate all procedures for handling workers’ compensation inquiries. Seller shall maintain all documents relating to workers’ compensation matters for Seller’s Workers, including documents and other information required by local, state, and federal governmental bodies. Maintaining the insurance coverage required by this Agreement shall in no way be interpreted as relieving Seller of any responsibility under this section.
e. Coverage Amounts Required. Seller’s insurance, as required herein, shall be written with at least the following limits of liability. None of the Seller’s Insurance shall be subject to any self-insured retention greater than $100,000 without Buyer’s written approval:
1. Commercial General Liability/ Bodily Injury/Property Damage
a. $1,000,000 Per Occurrence
b. $2,000,000 Aggregate
c. $1,000,000 Personal and Advertising Injury
d. $2,000,000 Products/Completed Operations Insurance
2. Commercial Automobile Liability
a. $1,000,000 combined single limit for bodily injury and property damage.
3. Excess Coverage
a. $5,000,000 minimum- providing excess follow form of above liability coverage
4. Workers Compensation/ Employer’s Liability
a. $1,000,000 Bodily Injury by Accident
b. $1,000,000 Bodily Injury by Disease- Each Employee
c. $1,000,000 Policy Limit- Bodily Injury by Disease
ii. Seller shall maintain in effect all insurance coverage required under the Insurance Requirements with insurance companies lawfully authorized to issue insurance in the jurisdiction in which the Goods are to be delivered and/or Services are to be provided with a rating of A-VIII or better in the most recent edition of A.M. Best’s Insurance Reports. All such insurance shall be written on an occurrence basis. Seller hereby agrees to deliver to the Buyer certified certificates of insurance and policies evidencing compliance with the insurance types and limits not less than those specified by the Agreement at the following times: (a) within five (5) days of the execution of the Agreement; (b) prior to any Goods, equipment, or personnel being brought onto the site where the Goods and/or Services are to be provided; (c) prior to commencement of the Services; (d) upon renewal or replacement of each required policy of insurance; and (e) upon the Buyer’s written request. Buyer has the right, but not the obligation, of prohibiting Seller or any Subcontractor from entering Buyer owned or operated location until Buyer receives all certificates of insurance and/or other evidence that insurance has been placed in complete compliance with these requirements. In no event shall any failure of the Buyer to receive certificates of policies required under the Agreement, or to demand receipt of such certificates prior to the Seller commencing the Services, be construed as a waiver by the Buyer of the Seller’s obligations to obtain insurance pursuant to the Agreement. The obligation to procure and maintain any insurance required by the Agreement is a separate responsibility of the Seller and independent of the duty to furnish a certificate of such insurance policies. If the Seller fails to obtain or maintain any insurance coverage required under this Agreement, the Buyer may, but shall not be obligated to, purchase such coverage and charge the expenses for such insurance (including the costs of premiums and deductibles related thereto) to the Seller and/or terminate this Agreement for cause.
iii. Primary and Noncontributory; No Limitation. Seller’s policies shall be primary and noncontributory to any policies maintained by the Additional Insured(s) (defined below). Nothing in this section shall be construed as limiting in any way the extent to which Seller or any Subcontractor may be held responsible for payment of damages resulting from their operations. Seller’s obligations to procure insurance are separate and independent of, and shall not limit Seller’s contractual indemnity and defense obligations. Buyer makes no representation that the coverages and limits required in the Agreement will necessarily be adequate to protect Seller.
iv. Additional Insured Obligations; Waiver of Subrogation. To the fullest extent permitted by law, the Seller shall cause all insurance required by the Agreement (except Worker’s Compensation and Professional Liability) to include the Buyer as additional insured(s) (“Additional Insured(s)”) and to include a waiver of subrogation. The additional insured coverage shall apply to both ongoing and completed operations. 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, as well as General Liability Additional Insured Endorsements for “on-going” operations via CG2010, “completed operations” via CG2037 and Products Liability via vendor’s endorsement CG2015. Should Seller receive notice of cancellation or material reduction of any of the policies of insurance required herein, Seller shall promptly, but not less than thirty (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. In accord with Section 11(vi) below, the Additional Insured(s) shall have no liability for any deductibles or self-insured retentions (“SIR”) applicable to any insurance provided by the Seller or its Subcontractors, which shall be and remain the responsibility of the Seller and its Subcontractors.
v. Adjacent Property. To the fullest extent permitted by law, the Seller shall indemnify, defend and hold harmless the Buyer against any and all liability, claims, demands, damages, losses, and expenses, including attorneys’ fees, in connection with or arising out of any damage or alleged damage to any of the Buyer’s existing adjacent property that may arise from the provision of Goods or the performance of the Services.
vi. Deductibles and Self-Insured Retentions. The Seller shall disclose to the Buyer for Buyer’s approval, which shall not be unreasonably withheld, any deductible or SIR applicable to any insurance provided by the Seller or its Subcontractors. Any and all deductibles and SIRs applicable to any insurance required to be provided by the Seller and its Subcontractors shall be the sole responsibility of the Seller (and/or the Subcontractor who procured such insurance) and in no event shall the Buyer be responsible for such deductible(s) or SIR(s). Notwithstanding the foregoing, if any SIR or deductible applicable to any insurance required to be provided by the Seller or Subcontractors is paid by Buyer, Buyer may: (i) back charge Seller, (ii) withhold from monies otherwise owing to the Seller, and/or (iii) collect by any other lawful means from Seller full reimbursement for such costs. Any and all SIRs on general liability insurance policies must be susceptible of being satisfied through payments made by any additional insured, co-insurers and/or insured other than the first named insured. The policy must also state that allocated loss adjustment expenses will satisfy the SIR or deductible.
12. TERMINATION AND SUSPENSION
i. Buyer’s Suspension. At any time and without cause, Buyer may suspend Seller’s performance under the Agreement by written notice to Seller. Buyer will notify the Seller the date that this Agreement will resume and the Seller shall resume on the date so fixed. The Contract Time shall be extended, as determined solely by Buyer, for any delays directly attributable to any such suspension.
ii. Buyer’s Termination for Convenience. Buyer may terminate this Agreement , or portions thereof, for its convenience, in whole or in part, upon written or electronic notice, at any time, to Seller. If this Agreement is so terminated, unless otherwise directed by Buyer, Seller shall immediately stop performance and Seller’s sole and exclusive remedy is payment of undisputed amounts otherwise owed for Services properly performed and accepted and/or Goods delivered and accepted in accordance with this Agreement , as applicable, prior to the effective date of the termination. Upon termination pursuant to this section, Seller shall deliver to the Buyer all Goods not terminated and all Deliverables, including any and all Work Product. In no event shall Seller be paid loss of anticipated profits or revenues or other economic loss arising out of or resulting from such termination.
iii. Buyer’s Termination for Cause.
a. Within five (5) days of written notice from Buyer and Seller’s failure to cure any of the following, the Buyer may terminate the Agreement for any of the following events constituting default:
1. Seller’s failure to timely and accurately provide the Goods, Services and/or Deliverables;
2. Seller’s failure to supply sufficient qualified personnel;
3. Seller’s failure to make prompt payment to its carrier or Subcontractors;
4. Seller provides nonconforming or defective Goods or Deliverables;
5. Seller disregards any applicable law, statute, ordinance, code, rule, regulation or lawful or orders of any public authority having jurisdiction;
6. Seller breaches any warranty made by the Seller under or pursuant to the Agreement;
7. Seller has a voluntary or involuntary bankruptcy proceeding commenced by or against it, or Seller’s property is assigned for the benefit of creditors or goes into receivership or other state, federal, or foreign insolvency proceeding(s);
8. Seller becomes insolvent or generally fails to pay debts as they become due, discontinues business, dies or commences to dissolve, wind-up, or liquidate itself;
9. Seller or its current owner(s) transfer a substantial portion of the property or ownership interest in Seller; or
10. Seller is otherwise guilty of a material breach of a provision of the Agreement.
b. In the event of Buyer’s termination for Seller’s default, and in addition to other remedies available to Buyer:
1. Seller shall deliver to Buyer all Deliverables, including any and all Work Product prepared by or created by Seller pursuant to the Agreement;
2. Buyer may accept assignment of subcontracts and supply contracts, and Buyer may finish the Services by whatever reasonable method the Buyer determines are expedient; and
3. Buyer may also recover all costs (including but not limited to the costs of repairing or reprocuring the Goods, completing and/or reperforming the Services, and/or completing the Deliverables, as well as all attorney’s fees, expert and professional fees, and court and arbitration costs), losses, damages, penalties, and expenses incurred by Buyer and/or related to Seller’s breach (collectively “Costs”), which Costs may be recovered from the Seller as follows:
a. The Contract Price shall be adjusted to deduct the Contract Price for each/all Good(s), Service(s) and/or Deliverable(s) terminated by Buyer (“Adjusted Contract Price”).
b. If the Costs exceed the unpaid Adjusted Contract Price, the Seller shall be liable to the Buyer for such excess Costs. Buyer may off-set such costs against any balance otherwise due Seller under any other agreement between Buyer (or any of its affiliates) and Seller.
c. If the Costs are less than the unpaid Adjusted Contract Price, the Buyer shall, at its sole discretion, pay to the Seller or off-set against any balance otherwise due Seller under any other purchase order, undisputed payment for Services properly performed and accepted and/or Goods delivered and accepted less the Costs.
c. When Buyer terminates the Agreement for Seller’s default, Seller shall not be entitled to receive further payment until the Services are complete and all Good and Deliverables are delivered, or if Buyer elects not to complete such services or procures delivery of any remaining goods or deliverables elsewhere, until Buyer has fully accounted for all costs by Buyer as a result of Seller’s default.
d. If it is determined that Buyer’s termination for default was wrongful, the termination shall be deemed a termination for convenience pursuant to Section 12(ii).
iv. Post Termination Obligations. Following a termination pursuant to this section, Buyer shall have no obligation to Seller except that Seller shall be entitled to amounts due to Seller as provided in Sections 12(ii) to (iii) above; provided, however, that in no event shall Buyer be obligated to pay an amount in excess of the Adjusted Contract Price; and any advance payments made by Buyer to Seller will be refunded to Buyer. Upon termination of this Agreement, Seller shall return or destroy all Confidential Information in accordance with Section 17(iv) herein, and shall immediately return all Deliverables and Work Product to Buyer.
v. Survival. The parties expressly acknowledge and agree that, unless explicitly stated otherwise herein, all provisions in this Agreement that, by their nature, are intended to survive termination/expiration of the Agreement (including but not limited to the following, which are included for example only and are not an exhaustive list: Buyer’s audit rights; dispute resolution, post-termination obligations, forum selection, and governing law; warranties and representations; non-disclosure of Confidential Information; Buyer’s termination rights and Seller’s liability for damages related thereto; indemnification and reimbursement (including attorney’s fees); intellectual property rights, representations, and indemnity; insurance;; and survival, no waiver, entire agreement, severability, and notices), as well as any provisions necessary to construe those terms, shall survive any termination/expiration of the Agreement.
Seller shall 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. Seller will comply with all applicable federal, state, and local safety laws, regulations and policies, including training, posting, inspection, and reporting requirements.
14. APPLICABLE LAWS; CERTIFICATION
Seller hereby certifies that in performing the Services and its obligations hereunder, Seller shall comply with all applicable foreign, federal, state, provincial and local statutes, laws, regulations, orders and ordinances. Compliance includes but is not limited to Workers Compensation Laws; the Rehabilitation Act of 1973, Section 503, as amended; the Age Discrimination in Employment Act of 1967; the Equal Employment Opportunity Clause of Executive Order 11246, as amended by Executive Order 11375; the Utilization of Minority Business Enterprises Clause of Executive Order 11625, as amended; the Hazardous Materials Transportation Act of 1976; Federal Clean Air Act; Federal Water Pollution Control Act; the Federal Resource Conservation and Recovery Act of 1976; the Energy Policy and Conservation Act; the National Energy Conservation Policy Act; the Vietnam Era Veteran’s Readjustment Assistance Act of 1974, as amended; Executive Order 13201; any privacy laws; the Fair Labor Standards Act; the Equal Pay Act; the Occupational Safety and Health Act; Patient Protection and Affordable Care Act (“ACA”); Americans with Disabilities Act; Title VII of the Civil Rights Act; Rehabilitation Act of 1973 (29 USC §705, et. seq.); the Affirmative Action regulations regarding the disabled as set forth in 41 CFR 60-741; the Immigration Reform and Control Act of 1986 (“IRCA”); C.F.R. § 52.252-2; 48 C.F.R. § 22.1802; Executive Order No. 12989 (Feb. 13, 1996), as amended by E.O. No. 13465, June 6, 2008; Family and Medical Leave Act; provisions relating to the identification and procurement of required permits, certificates, approvals and inspections, labor and employment obligations, affirmative action, and wage and hour laws, and those governing the environment and the use, handling, storage, spillage, recordkeeping, reporting, remediation, cleanup, disposal and transportation of hazardous, toxic, polluting or contaminating substances which are hereby incorporated by reference as appropriate, and the rules and regulations issued thereunder which are incorporated by reference as appropriate. This Agreement incorporates one or more clauses by reference, with the same force and effect as if they were given in full text. Seller warrants and represents to Buyer that all chemical substances, mixtures, and articles sold and distributed to Buyer are in full compliance with the Toxic Substances Control Act and all regulations issued thereunder. Seller commits itself to such compliance by acceptance of the Agreement. Seller shall require its Subcontractors to comply with the requirements in this section, Seller shall execute and deliver such documents and other information as may be required to effect or evidence compliance with applicable laws.
15. EXPORT COMPLIANCE
The parties acknowledge that the Goods and/or Services may be subject to certain export or foreign trade control laws and/or regulations (including, without limitation, those of the United States, such as the U.S. Commerce Department’s Export Administration Regulations and regulations of the U.S. Treasury Department’s Office of Foreign Assets Control) (“Export Law(s)”). Seller covenants that it shall (and shall ensure that its Subcontractors) comply with all applicable Export Laws with respect to the Goods and Services, including those prohibiting exports, re-exports, or disclosure of U.S. origin technology or materials to: (a) countries subject to comprehensive economic embargo sanctions or designated as terrorist-supporting by the United States; the government entities of such countries, wherever located; nationals of such countries, wherever located (including specifically, employees or contractors in the United States on temporary visas); or any person, wherever located, known to be acting for or on behalf of such a country; (b) other entities or persons designated on the U.S. Treasury Department’s list of Specially Designated Nationals and Blocked Persons, the U.S. Commerce Department’s Denied Party list or Entity list, or persons otherwise prohibited from receiving such information or materials under U.S. export law or regulation (see www.bis.doc.gov for information); or (c) any end-user engaged in design, development or production of chemical, biological, or nuclear weapons. Seller shall promptly notify Buyer of any Export Law(s) applicable to any Goods and/or Services (including a complete and accurate description of the applicable Export Law(s) and any licenses, exceptions and legal requirements in relation thereto). Seller acknowledges and agrees that it shall not constitute a default on the part of Buyer if Buyer is precluded by applicable law (including, without limitation, any Export Law(s)), from (i) purchasing any Goods and/or Services; or (ii) otherwise fulfilling its obligations under this Agreement. Seller shall require its Subcontractors to comply with the requirements of this section.
Seller (which for purposes of this section shall include all of its employees, agents and affiliates) agrees that it will not bribe, attempt to bribe, or accept bribes from, any government officials or employees, public international organizations, politicians, political parties, or private individuals or entities, or the employees of Buyer or its affiliates. Seller acknowledges and agrees that it is familiar with and will abide by the anti-bribery laws in the countries in which it does business (which may include, among others, laws promulgated under the Organization for Economic Cooperation and Development’s Convention on Combating Bribery of Foreign Public Officials, the UN Convention Against Corruption, the U.S. Foreign Corrupt Practices Act (“FCPA”) and the UK Bribery Act). Seller also agrees it will not take any action that would cause Buyer to be in violation of the FCPA, the UK Bribery Act, or other anti-bribery laws. Seller attests that it is taking similar actions with its supply base to ensure compliance with anti-bribery laws. Seller agrees that its books, records, and accounts shall accurately and properly reflect any and all payments by, and transactions of, Seller and that it shall maintain an adequate system of accounting. Seller further agrees that it shall not make facilitation payments on behalf of Buyer. If Seller discovers that it has violated any of the provisions in this section, Seller shall immediately notify Buyer and cooperate with any investigations by Buyer. Seller agrees that, in addition to Buyer’s termination rights otherwise set forth in this Agreement, Buyer may immediately terminate this Agreement in the event of a violation of this section by Seller and, further, Buyer shall not be required to make any payments to Seller that might otherwise be due if such payments are related to a transaction in which Seller has violated this section. Seller shall require its Subcontractors to comply with the requirements of this section.
i. “Confidential Information” shall mean all information and materials that are nonpublic, confidential or proprietary in nature that the Buyer has furnished, or is furnishing to or is accessed by Seller or its Representatives, whether or not marked confidential, restricted, proprietary, or with a similar designation and whether furnished before or after the date of this Agreement, whether tangible or intangible, oral or in writing, and in whatever form or medium provided, as well as all information, Work Product, Deliverables, and documents, generated by the Seller or its Representatives that is developed pursuant to Seller’s performance under the Agreement or otherwise and contains, reflects, or is derived from the information furnished by Buyer, including but not limited to the following: (i) all information concerning the operations, affairs, customers, business plans, business processes, end-users, businesses and financial affairs, of Buyer, and the relations of Buyer with its customers, employees, agents, and service providers (including business plans, release dates and schedules, and consumer market information); (ii) Deliverables; (iii) Buyer Data (defined below); and (iv) Personal Data (defined below).
ii. Seller agrees that it and its Representatives will not disclose Buyer’s Confidential Information to any third party and will use such Confidential Information solely for the purposes of Seller’s performance under the Agreement and shall hold such information in strictest confidence and not disclose such information to third parties without the prior, written consent of Buyer; provided, however, Seller may disclose the Confidential Information only to Seller’s officers, directors, employees, or Subcontractors who need to know such Confidential Information in order to evaluate or perform the obligations under this Agreement (“Representatives”), provided that such Representatives (other than Seller’s own employees) have first executed a written confidentiality agreement agreeing to protect the Confidential Information to the same extent as if they were the Seller. Seller understands that Buyer’s sharing of the Confidential Information with Seller does not, and shall not be construed to, grant Seller any license or right of any nature with respect to any Confidential Information, materials, software, or other tools made available to Seller, and that all such information is subject to the intellectual property rights provisions contained herein. Seller shall maintain strict control over the Confidential Information and shall be fully liable for any breach of this Section 17 by its Representatives. Seller shall promptly notify the Buyer if Seller learns or becomes aware of any violation of this Section 17 by any others, or of any other misappropriation or unauthorized access, use, reproduction, or reverse engineering of, or tampering with the Confidential Information by others.
iii. If the Seller or any of its Representatives are requested or required (by deposition, interrogatory, request for documents, subpoena, civil investigative demand, regulatory agency, federal, state, or local law, or other governmental entity exercising jurisdiction over the Seller, its Representatives or subject matter in question, or similar process) to disclose any of the Confidential Information, then unless prohibited by law, the Seller shall provide the Buyer with prompt written notice of such request or requirement and shall cooperate with the Buyer so it may seek a protective order or other appropriate remedy. Subject to the issuance of a protective order or a receipt of a waiver hereunder, the Seller may produce such Confidential Information, if in the opinion of counsel of the Seller, the Confidential Information is responsive to discovery requests or demands in the respective proceeding(s) and not protected by the attorney-client privilege or the attorney work-product doctrine, but the Seller shall exercise reasonable efforts to obtain assurance that confidential treatment will be afforded to such Confidential Information, shall disclose only the portion of the Confidential Information legally required, and shall otherwise continue to protect the remaining Confidential Information.
iv. The Seller agrees that within fifteen (15) business days after the earlier of the Buyer’s request (“Destruction Request”) or termination/expiration of the Agreement, all copies of the Confidential Information in any form whatsoever, (except that portion of Confidential Information that may be found in analyses, compilations, studies or other documents prepared by or for Seller or its Representatives (“Analyses”)) will be returned to the Buyer or, if requested by Buyer, destroyed and the Seller will, upon request, cause one of its Representatives to verify such return or destruction; provided, however, that the Seller may retain a copy of the Buyer’s Confidential Information for legal archival or electronic back-up purposes, which copy or back-up shall be maintained in accordance with the provisions of this Agreement. Analyses may also be held by the Seller and kept subject to the terms of this Agreement, or destroyed. Except as specifically permitted under this Section 17(iv), Seller shall not otherwise use or access the Confidential Information after receipt of a Destruction Request or termination/expiration of the Agreement.
v. Except as required by applicable law, rule, regulation or exchange rule, Seller shall not issue any statement, confirm, or otherwise disclose to the general public, to the news media, or to any third party, except with the prior written approval of Buyer, both as to the content and timing of any such disclosure, (a) that discussions regarding the Agreement are taking place, (b) that the parties have exchanged information with a view toward the consummation of an agreement regarding the same, or (c) the existence of this Agreement. If Buyer provides prior express written approval for the use of Confidential Information, Buyer further reserves the right to revoke such use at any time.
vi. Any of Buyer’s or, if any, Buyer’s tenant’s trade secrets or Confidential Information that Seller learns about while on Buyer’s premises or otherwise in connection with Seller’s work and/or Services shall be deemed Buyer’s proprietary information. Seller shall maintain the confidentiality of such information in accord with this section and shall not use such information other than for purposes of performing the specific obligations hereunder. Seller further acknowledges and agrees that Buyer or its tenant(s) may require additional confidentiality provisions and/or security requirements be included for specific portions of the Services. Seller shall abide by, and enforce, any additional confidentiality and/or security requirements, as reasonably requested by the Buyer.
vii. The Seller acknowledges and agrees that, in the event of any breach of this Section 17, the Buyer may be irreparably and immediately harmed and may not be made whole by monetary damages alone. Accordingly, it is agreed that, in addition to any other remedy to which it may be entitled at law or in equity, the Buyer shall be entitled to seek restraining orders and/or an injunction or injunctions (without the posting of any bond and without proof of actual damages) to prevent breaches and/or compel specific performance of this section. The Buyer may pursue such claimS in a court of competent jurisdiction sitting in DALLAS, Texas, as set forth in SECTION 24(v) herein. For the avoidance of doubt, nothing in this Agreement shall limit any direct, indirect, incidental, consequential, special, exemplary, punitive, treble, lost profit, lost revenue, or other damages recoverable by the Buyer for breach of this section.
18. DATA SECURITY; PERSONAL DATA; DATA BREACH
i. Data Security. Seller shall implement and maintain a written information security program, which will be followed in all relevant aspects of Seller’s performance under the Agreement (the “Security Program”). Seller’s Security Program shall be designed to protect the privacy, security, confidentiality, and integrity of Buyer Data that Seller collects, receives, accesses, analyzes, processes, transfers, transmits, stores, disposes, uses, and/or discloses (“Processed and Transferred”). Seller’s Security Program shall include Seller’s implementation and maintenance of reasonable administrative, physical, and technical safeguards, which shall be sufficient in nature and scope to: (a) protect against unauthorized use, access, acquisition, disclosure, modification, or destruction of Buyer Data; (b) protect against any potential threats and hazards to the security or integrity of Buyer Data; and, (c) protect Buyer’s Intellectual Property Rights, including, without limitation, Buyer’s copyrights, patents, trade secrets, trademarks, and derivative works thereof. Further, Seller’s Security Program shall: (a) comply with applicable data protection and privacy laws; (b) meet or exceed accepted industry practices, and; (c) meet or exceed the minimum Security Requirements below. In the event Seller maintains or stores any Buyer Data and/or provides any infrastructure services, Seller shall implement commercially reasonable safeguards and practices for information security that are comparable to established and accepted industry best practices and standards (such as NIST Cybersecurity Framework, ITIL, the ISO 2700x family of internationally recognized information security standards, CobiT, as amended). “Buyer Data” means all Buyer data and information (including Personal Data), which may be Processed and Transferred by Seller for or on behalf of Buyer in connection with Seller’s performance under the Agreement. Seller’s Security Program that shall include and address, at a minimum, the following administrative, physical, and technical safeguards: (i) Logical access controls to manage access to Buyer Data and system functionality on a least privilege and need-to-know basis, including defined authority levels and job functions, unique IDs and passwords, strong (i.e., two-factor) authentication for remote access systems (and elsewhere as appropriate), and promptly revoking or changing access in response to terminations or changes in job functions; (ii) Password controls to manage and control password security, complexity and expiration; (iii) Network security controls, including the use of firewalls and updated Intrusion Detection/Prevention Systems to help protect Seller’s systems from intrusion or limit the scope or success of any attack or attempt at unauthorized access, and reasonable system monitoring; (iv) Vulnerability management procedures and technologies to identify, assess, mitigate and protect against new and existing security vulnerabilities and threats, including viruses, bots and other malicious code, and also including use of anti-virus or other programs capable of detecting, removing and protecting against malicious or unauthorized software with signature updates at least every twenty-four (24) hours; (v) Appropriate disposal and destruction measures to ensure Buyer Data, and any media that Processed or Transferred Buyer Data, is sanitized and/or Securely Destroyed, as appropriate, prior to disposal, release out of organizational control, or release for reuse; and, Seller shall ensure that third parties cannot obtain Buyer Data in hardcopy form and Buyer Data in digital form is not recoverable by any known forensic means; (vi) Encrypting Buyer Data and any encryption keys stored by Seller or stored on any mobile media (including USB, tablets, laptops, external hard drives, and cell phones) and encrypting Buyer Data and any encryption keys transmitted over public or wireless networks (including email) and encrypting and storing backup media at a secure offsite facility; (vii) Seller personnel shall not store, manage, move or maintain any Buyer Data on any portable computing device and/or mobile devices, unless an exception is made in writing by Buyer’s IT Department; (viii) Implementing and maintaining procedures for vulnerability and patch management ensuring that application system and network device vulnerabilities are evaluated and security patches applied in a timely manner; (ix) Monitoring, detecting, isolating, preventing, and responding to attempted or successful attempts or intrusions by unauthorized persons into any system used to maintain Buyer Data or to perform under the Agreement; (x) Maintaining current firewall protection and system patches for any internet-connected systems and devices; (xi) Designating one or more employees to coordinate and maintain the Security Program, assess and manage risks, and monitor the program’s effectiveness; (xii) Reviewing and assessing the Security Program at least annually to determine whether existing safeguards adequately control security risks; (xiii) Adjusting the Security Program as appropriate in response to risk assessments or in light of new or significant threats or material changes in business practices or operations that may affect the Security Program; (xiv) Training employees and other persons responsible for performing the Agreement in Security Program practices and procedures with reasonable regularity, including in such training, without limitation, the risks of social engineering and malicious software, and password management requirements; (xv) Establishing sanctions for Security Program violations; and (xvi) Selecting vendors and service providers capable of maintaining appropriate safeguards and practices, and contractually requiring the service providers to maintain substantially similar privacy and data security practices and procedures as are required of Seller hereunder.
ii. Personal Data. Notwithstanding anything to the contrary set forth in this Agreement, in no instance may any personnel or employee of Seller and/or its Subconsultants and/or affiliates: (a) collect, retain, access and/or use any Personal Data, unless specifically authorized by Buyer in writing to enable performance hereunder; or, (b) otherwise release, transfer, store, disclose, disseminate, copy or download any Personal Data for any commercial purpose other than performance as specified hereunder. “Personal Data” shall mean any and all of the following information or data that is Processed and Transferred by Seller in connection with the Seller’s performance under the Agreement (regardless of form or format of the information or data, and regardless of the media on which that information or data is embodied): (a) any information or data that can be used to identify or locate a person or entity or the activity, assets or health information of a person or entity, including, but not limited to: names, addresses, social security numbers, driver’s license numbers or other government issued identification numbers commonly used to verify the identity of an individual, e-mail addresses, passwords, personal identification numbers, account numbers, account information, transactional information or history, claim history, credit/debit card numbers, credit report information, passwords, security codes, information regarding an individual’s medical history or medical treatment or diagnosis or physical condition; (b) any Protected Health Information as defined under the Health Insurance Portability and Accountability Act of 1996 (Public Law 104-191) (“HIPAA”), as amended; (c) any Personal Information as defined under the California Consumer Privacy Act; and, (d) any other personal information that is protected by applicable state or federal data protection or privacy laws.
iii. Data Breach. In the event Seller knows or reasonably believes that there has been any breach or violation of any terms of this section and/or any unauthorized acquisition, disclosure, use of and/or access to Buyer Data or Personal Data (a “Breach”), Seller shall take the following actions: (a) immediately notify Buyer of such Breach; (b) identify for and disclose to Buyer at no cost to Buyer the specific data, by customer and/or account number, which has or may have been Breached; (c) monitor any affected accounts for any unusual activity (if appropriate); and (d) to the extent such Breach is caused by Seller, its affiliates and/or their contractors and/or employees, or is a result of an act, omission, or negligence by Seller, its affiliates and/or their contractors and/or employees: (1) take measures immediately designed to contain and control the incident and prevent further unauthorized access, use, acquisition, or disclosure, as applicable to the circumstances giving rise to the Breach; (2) implement a plan designed to remedy the circumstances that permitted such Breach to occur; and, (3) cooperate with Buyer as reasonably necessary to facilitate Buyer’s compliance with any applicable federal or state law regarding unauthorized access of Personal Data, including any laws requiring notification to individuals, third-parties, or government authorities in connection with a Breach. Buyer shall have sole authority to control, or delegate to Seller, any and all Breach response activities required by law, including any applicable notification requirements. Seller shall not make any public announcements regarding a Breach of Buyer’s Data without first notifying Buyer and giving Buyer an opportunity to review and approve any proposed communication or announcement; provided, however that this obligation shall not be construed as requiring Seller to violate applicable law. Seller shall at all times comply with applicable law in responding to any Breach and shall bear responsibility for all costs associated with such Breach. Seller shall indemnify, hold harmless and reimburse, Buyer for loss, damage, costs, and expenses (including attorney’s fees) for any Breach involving Buyer’s Data arising from or in connection with this Agreement.
19. NETWORK INTEGRITY
Seller 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 Seller’s performance under this Agreement. If Malicious Code is found to have been introduced into any environment or system described above, Seller 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, Seller will, at its own cost, assist Buyer in mitigating and restoring such losses. Seller 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, Seller represents and covenants that it will not invoke such disabling code at any time in a manner that might affect Buyer or the Services. Seller shall be liable for any damages (including court costs and attorney’s fees) incurred by Buyer as a result of Seller’s breach of this section and no limitation on damages contained in this Agreement shall prevent Buyer from recovering from Seller as set forth herein. Any exclusion or limitation of liability clause or any other clause in the Seller’s documents which purports to restrict Buyer’s remedies under this Section 19 is hereby objected to, rejected, and superseded by this Section 19.
20. SPECIAL TOOLS
Unless otherwise stated in the Purchase Order, all special tools, patterns, machinery and equipment needed by Seller for the performance of its obligations hereunder shall be obtained by Seller at its expense and shall be the property of Seller. Seller shall indemnify, defend, and hold harmless Buyer for all Losses related to Seller’s use of any special tools, patterns, machinery or equipment under this section.
21. PROHIBITION OF USE OF BUYER NAME AND TRADEMARKS
Seller shall not use the name(s) of Buyer, its parent companies, subsidiaries, affiliates, or assigns, or derivations, trademarks, trade dress, logos, or the equivalent thereof in advertising or sales materials or in any other manner whatsoever without prior express written approval of Buyer. Such prohibition includes, without limitation, the following:
i. Seller shall not refer to the existence of this Agreement without Buyer’s prior express written approval;
ii. Seller is not allowed to make any statement or representation whatsoever regarding Buyer’s opinion of Seller’s company, Goods or Services without Buyer’s prior express written approval; and
iii. If Buyer provides prior express written approval for the use of Buyer, its parent companies, subsidiaries, affiliates, or assigns’ name(s), Buyer further reserves the right to revoke the use of its name(s) at any time.
22. RIGHT TO AUDIT
For a period of two (2) years after Seller’s completion of Services or the date on which Deliverables and/or Goods were supplied pursuant to this Agreement, whichever is later, Buyer shall have the right to perform audits from time to time (i) of Seller’s costs and other items related to the terms of this Agreement, (ii) for purposes of verifying compliance with the terms of this Agreement and (iii) of Seller’s information security practices, including but not limited to the physical systems, written policies, procedures and vulnerability testing of systems and infrastructure relevant to the delivery of the Services. Seller shall, upon reasonable request and during reasonable business hours, make available for examination and reproduction by Buyer and its duly authorized agents, such books, records, and invoices of Seller as may be necessary to perform an audit pursuant to this section. If any audit report establishes Seller’s non-compliance with the Agreement (including the requirements of any attachments or modifications hereto): (i) Seller shall submit to Buyer, within thirty (30) days of its receipt of the relevant audit report from Buyer, a plan to improve and remediate Seller’s performance to the level required by this Agreement; (ii) Seller shall be immediately deemed in default of the Agreement and Buyer may, without any additional notice to Seller, terminate the Agreement pursuant to Section 12(iii) herein; and (iii) Seller shall reimburse Buyer for all of Buyer’s costs related to the audit and all other damages suffered by Buyer as disclosed by the audit (including any overpayments revealed and all related attorney’s fees).
Seller shall not subcontract any obligations and/or Services to be performed or any Goods to be furnished without the prior written consent of Buyer. Notwithstanding, if Seller subcontracts, or attempts to subcontract, any obligations, Seller shall be as fully responsible to Buyer for the acts and omissions of its Subcontractor(s) and for the persons directly and indirectly employed by such Subcontractor(s), as Seller is for the acts and omissions of persons directly employed by Seller. Nothing contained in the Agreement shall create any contractual relationship between Buyer and any Subcontractor of Seller. Seller agrees to bind every Subcontractor to the terms and conditions of this Agreement. Each subcontract agreement for a portion of the Services is assigned by the Seller to Buyer provided assignment is effective only after termination of the Agreement by Buyer and only for those subcontract agreements that the Buyer accepts by notifying the Subcontractor and Seller.
24. DISPUTE RESOLUTION AND GOVERNING LAW
i. This Agreement, any disputes or claims arising out of or relating to the Agreement and any questions concerning the validity of, construction of, or performance under the Agreement shall be governed by the laws of the state of Texas (regardless of any conflict of laws rules or provisions that would apply the laws of another jurisdiction) and, except for Buyer’s claims for Seller’s actual or alleged breach of Section 17 (which are subject to Section 24(v) below)), shall be resolved by negotiation, mediation, arbitration and/or litigation at Buyer’s sole option. In the event Buyer selects litigation, Seller hereby waives any and all objections to such forum and venue and consents to the exclusive personal jurisdiction of the state and federal courts of the state of Texas in all such matters arising hereunder. In the event Buyer selects arbitration, the Federal Arbitration Act (“FAA”) shall govern in all such matters hereunder and the provisions for arbitration shall be specifically enforceable under the FAA.
ii. Claims and Disputes, Definition. A “Claim” is a demand or assertion by one of the parties seeking, as a matter of right, payment of money, or other relief with respect to the terms of the Agreement. The term “Claim” also includes other disputes and matters in question between the Buyer and Seller arising out of or relating to the Agreement. The responsibility to substantiate Claims shall rest with the party making the Claim.
iii. Notice of Claims. Claims by either the Buyer or Seller must be initiated by written notice to the other party, which Notice of Claim shall be sent by certified or registered mail, or by carrier providing proof of delivery, as follows: (1) if to the Seller, to the Seller’s address on the Purchase Order; (2) if to Buyer, to both CyrusOne LP, 2850 North Harwood St., Ste. 2200, Dallas, TX 75201 and Buyer General Counsel at Buyer’s address above, with a copy via email to [email protected]. Claims by either party must be initiated within twenty-one (21) days after occurrence of the event giving rise to such Claim or within twenty-one (21) days after the claimant first recognizes the condition giving rise to the Claim, whichever is later.
iv. Continuing Contract Performance. Pending final resolution of any Claim or dispute related to the Agreement, the Seller shall proceed diligently with performance under the Agreement and the Buyer shall continue to make undisputed payments in accordance with this Agreement.
v. BREACH OF SECTION 17. SELLER AGREES THAT ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED IN ANY WAY TO SELLER’S ACTUAL OR ALLEGED BREACH OF SECTION 17 HEREIN MAY, AT BUYER’S SOLE DISCRETION, BE BROUGHT BY BUYER IN A COURT OF COMPETENT JURISDICTION SITTING IN DALLAS, TEXAS AND SELLER HEREBY WAIVES ANY AND ALL OBJECTIONS TO SUCH FORUM AND SUCH VENUE AND CONSENTS TO THE PERSONAL JURISDICTION OF SUCH COURT. ANY LITIGATION BROUGHT BY BUYER AND ARISING FROM SELLER’S ACTUAL OR ALLEGED BREACH OF SECTION 17 SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, REGARDLESS OF ANY CONFLICT OF LAWS RULES OR PROVISIONS THAT WOULD APPLY THE LAWS OF ANOTHER JURISDICTION. THE FAA SHALL NOT APPLY TO OR GOVERN, IN WHOLE OR IN PART, ANY LITIGATION BROUGHT BY BUYER FOR SELLER’S ACTUAL OR ALLEGED BREACH OF SECTION 17.
vi. Dispute Resolution Procedure. Except for Claims or disputes by Buyer for Seller’s actual or alleged breach of Section 17 (which Buyer elects to litigate and declines, in its sole discretion, to consolidate with other claims, are specifically excluded from this Section 24(vi) and shall be governed by and subject to the procedures set forth in Section 24(v) above), all other Claims, disputes, or other matters in controversy arising out of or related to the Agreement except those waived as provided herein shall be resolved as follows:
a. Negotiations. Unless otherwise elected by Buyer, prior to and as a condition precedent to mediation or other binding dispute resolution of any Claim, the parties shall engage in the following multi-step negotiation process and attempt to resolve the Claim:
1. The parties shall attempt to resolve the dispute through good faith negotiation between the parties respective management
2. If the parties are unable to resolve the dispute as set forth in Section 24(vi)(a)(1), then the parties shall cause their executive officers, having authority to settle the dispute, to meet to resolve the dispute within fifteen (15) days of the failed negotiation between management. Ten (10) days prior to the scheduled meeting, the parties shall exchange: i) a statement of the parties’ positions and a summary of the evidence supporting such positions; and ii) the name and title of the executive who will be representing that party and any other persons who will accompany the executive to the meeting. Any written responses by either party shall be exchanged five (5) days prior to the meeting.
3. All negotiations pursuant to Section 24(vi)(a) shall be confidential and inadmissible in any binding dispute resolution, and shall be treated as compromise and settlement negotiations for purposes of the applicable Rules of Evidence.
b. Mediation. Unless otherwise elected by Buyer, any Claim not otherwise resolved by negotiations pursuant to Section 24(vi)(a) shall be subject to mediation prior to and as a condition precedent to binding dispute resolution of said Claim.
1. The parties shall endeavor to resolve their Claims by mediation in Dallas, Texas or Buyer’s Location, at Buyer’s sole option. A request for mediation shall be made in writing, delivered to the other party to the Agreement, and filed with the person or entity administering the mediation. The parties shall agree on a mediator within thirty (30) days after the request for mediation. If the parties cannot agree on a mediator, then the parties shall file for administration of the mediation by the American Arbitration Association (“AAA”). The request may be made concurrently with the filing of binding dispute resolution proceedings but, in such event, mediation shall proceed in advance of binding dispute resolution proceedings, which shall be stayed pending mediation for a period of sixty (60) days from the date of filing, unless stayed for a longer period by agreement of the parties or court order. In such event, if Buyer selects arbitration and such arbitration is stayed pursuant to this section, the parties may nonetheless proceed to the selection of the arbitrator(s) and agree upon a schedule for later proceedings.
2. The parties shall share the mediator’s fee and any costs equally. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof.
c. Binding Dispute Resolution. For any Claim(s) subject to, but not resolved under, subsections (a) and (b) above, or as otherwise elected by Buyer pursuant to this Section 24, Buyer shall have the sole and exclusive option to have the Claim(s) determined either by a court of competent jurisdiction or by arbitration, in accordance with this Section 24(vi)(c). Buyer shall exercise its exclusive option by commencing either a court action or an arbitration proceeding. If Seller first commences litigation with respect to a dispute which Buyer desires to have determined by arbitration, or if Seller first commences an arbitration which Buyer desires to have determined by litigation, Buyer shall commence the arbitration or litigation desired by Buyer within thirty (30) days after receiving service of Seller’s complaint or arbitration demand.
1. Arbitration. If Buyer chooses to have Claim(s) not otherwise settled by negotiation or mediation resolved by arbitration then such Claim(s) shall be subject to arbitration which, unless the parties mutually agree otherwise, shall be administered by the AAA in accordance with either its Commercial Arbitration Rules and Mediation Procedures or Construction Industry Arbitration Rules in effect on the date of the Agreement, as selected in the sole discretion of Buyer.
a. The arbitration shall be conducted in Dallas, Texas or the Buyer’s Location, at Buyer’s sole option, unless another location is mutually agreed upon. A demand for arbitration shall be made in writing, delivered to the other party to the Agreement, and filed with the person or entity administering the arbitration. The party filing a notice of demand for arbitration must assert in the demand all Claims then known to that party on which arbitration is permitted to be demanded and all Claims (except for those related to Seller’s breach of Section 17) not so asserted shall be waived.
b. A demand for arbitration shall be made no earlier than concurrently with the filing of a request for mediation, but in no event shall it be made after the date when the institution of legal or equitable proceedings based on the Claim would be barred by the applicable statute of limitations.
c. The award rendered by the arbitrator or arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.
d. The foregoing agreement to arbitrate and other agreements to arbitrate with an additional person or entity duly consented to by the parties shall be specifically enforceable under applicable law in any court having jurisdiction thereof.
e. Consolidation or Joinder. Subject to the rules of the AAA, either party, at its sole discretion, may consolidate an arbitration conducted under this Agreement with any other arbitration to which it is a party provided that: i) the arbitration agreement governing the other arbitration permits consolidation; ii) the arbitrations to be consolidated substantially involve common questions of law or fact; and iii) the arbitrations employ materially similar procedural rules and methods for selecting arbitrator(s).
i. Either party, at its sole discretion, may include by joinder persons or entities substantially involved in a common question of law or fact whose presence is required if complete relief is to be accorded in arbitration, provided that the party sought to be joined consents in writing to such joinder. Consent to arbitration involving an additional person or entity shall not constitute consent to arbitration of any claim, dispute or other matter in question not described in the written consent.
ii. The Buyer and Seller grant to any person or entity made a party to an arbitration conducted under this section, whether by joinder or consolidation, the same rights of joinder and consolidation as the Buyer and Seller under this Agreement.
2. Litigation. If Buyer chooses to have Claim(s) not otherwise settled by negotiation or mediation resolved by litigation then such Claim(s) shall be resolved in the appropriate forum in Dallas, Texas. Seller hereby waives any and all objections to such forum and venue and consents to the exclusive personal jurisdiction of the state and federal courts of the state of Texas.
25. CONFLICTS OF INTEREST
Seller shall perform its obligations with integrity and shall, at all times, perform the Services so as to protect the business and other interests of Buyer, ensuring at a minimum that it: (a) avoids conflicts of interest and promptly discloses any to the Buyer, and (b) warrants that it has not and shall not pay nor receive any contingent fees or gratuities to or from the Buyer, including its agents, officers and employees, subcontractors, sub-subcontractors, suppliers, and subconsultants or others for whom they may be liable, to secure preferential treatment.
26. BATTLE OF THE FORMS NOT APPLICABLE
It is the intent and agreement of the parties that the battle of the forms section of the Uniform Commercial Code §2-207, generally or as adopted by Texas or other applicable state law, shall not apply to the Agreement or to any invoice or acceptance form of Seller relating to the Agreement. The parties intend for this Agreement to exclusively control the relationship of the parties with respect to all Goods, Services, and/or Deliverables purchased pursuant to these Terms and Conditions and the Agreement. This Agreement shall control over any inconsistent, additional, or different terms or conditions that appear on any quotation, acknowledgement, proposal, scope of work, warranty, work order, invoice, or other communication received from Seller, regardless of the order or timing by which such terms or conditions are submitted. Any additional or different provisions contained in such documents (including any click wrap terms) that are inconsistent with, or which purport to alter or vary any of the terms and conditions of this Agreement are hereby explicitly rejected, objected to, and superseded by this Agreement and shall not become a part of the parties’ contract for sale of any Goods, Services and/or Deliverables. Under no circumstances shall any additional or different provisions from those contained in this Agreement and supplied by Seller be treated as a counteroffer, and any attempts by Seller to deem its acceptance of these terms conditional or contingent upon Buyer’s acceptance of terms and conditions other than those contained in the Agreement shall be disregarded; the terms of this Agreement, including these Terms and Conditions and any terms and conditions contained in a valid Purchase Order or other writing signed by both parties, shall constitute the only valid and enforceable terms of the parties’ agreement. By submitting an invoice for payment under any Purchase Order or otherwise, Seller reaffirms its assent to these Terms and Conditions regardless of and notwithstanding any inconsistent terms which may be included in such invoice(s).
Seller shall not assign or transfer this Agreement, or any interest therein or monies payable thereunder without the prior, written consent of Buyer, which may be granted or withheld in Buyer’s sole option, and any assignment made without such consent shall be null and void and Seller shall nevertheless remain legally responsible for all obligations under the Agreement. Buyer may, at any time, assign or transfer any or all of its rights or obligations under this Agreement without Seller’s prior written consent to any affiliate or any person acquiring all or substantially all of the Buyer’s assets.
All remedies provided for herein are to be cumulative and in addition to and not in lieu of any other remedies available at law, in equity and otherwise.
29. NO WAIVER
Unless expressly stated otherwise herein, the failure of a party to enforce a provision, exercise a right or pursue a default of this Agreement shall not be considered a waiver. Further, no failure or delay by Buyer in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power, or privilege preclude any other or further exercise thereof.
No changes or modifications to this Agreement shall be valid unless confirmed in writing by Buyer. Seller agrees to provide the Goods, Services and/or Deliverables in accordance with the terms and conditions set forth herein, including all terms incorporated herein by reference, and this Agreement constitutes the entire and integrated agreement between Buyer and Seller for the provision of Goods, Services and/or Deliverables and supersedes any prior or contemporaneous negotiations or agreements, whether written or oral. This Agreement shall control over any inconsistent, additional, or different terms or conditions that appear on any quotation, acknowledgement, proposal, scope of work, warranty, work order, invoice, or other communication received from Seller. Any additional or different provisions contained in such documents (including any click wrap terms) that purport to alter or vary any of the terms and conditions of this Agreement are hereby rejected, objected to, and superseded by this Agreement and shall not become a part of the parties’ contract for sale of any Goods, Services and/or Deliverables. Seller is an independent contractor and no Seller officer, director, employee, agent, affiliate, or anyone retained by Seller to perform Services for Buyer will be deemed to be an employee, agent, or contractor of Buyer. Nothing contained in this Agreement will be construed to make either Buyer or Seller a partner, joint venturer, principal, agent, or employee of the other. 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. In such case the Agreement shall be construed, to the fullest extent permitted by law. This Agreement may be executed in any number of counterparts, all of which taken together will constitute one single agreement amongst the parties.
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 courier providing proof of delivery or sent by certified mail or registered mail, return receipt requested, postage prepaid, to the addresses as provided in Section 24(iii). Copies of all notices to Buyer under this Agreement shall also be sent by certified or registered mail, or by carrier providing proof of delivery, to CyrusOne General Counsel at Buyer’s address in Section 24(iii) and by email to [email protected]. Seller shall not change its address for notices hereunder without ten (10) days’ advance written notice to Buyer.
32. ATTORNEY’S FEES
In the event of any arbitration or litigation arising from, or related to, a breach of this Agreement, the prevailing party (as determined by the court or arbitrator) will be entitled to recovery of all reasonable attorneys’ fees, consultant’s fees, court costs, arbitration costs and fees and other related expenses, together with attorneys’ fees and court costs incurred in supplemental enforcement proceedings to collect any judgment rendered in such proceeding.
33. CONSENT TO ELECTRONIC CONTRACTING
By entering into this Agreement using electronic signatures, the parties consent and intend to: (i) conduct this transaction by electronic means; (ii) enter into other necessary documentation by electronic means; (iii) use electronic signatures and records in connection with this Agreement, and other documents issued under this Agreement; and (iv) receive electronic mail and other electronic communication with respect to any document relating to or regarding this Agreement and the Services or Goods Seller provides to Buyer. Buyer and Seller agree and intend for their respective electronic signatures hereto to be given full legal effect and enforceability for the purposes of any applicable law. The parties may provide documents to each other electronically by emails that include attachments or embedded links.
33. PERFORMANCE OF SERVICES AT BUYER LOCATIONS AND SYSTEMS
To the extent Seller will provide any Services at a Buyer owned or operated location, and/or access any of Buyer’s systems (including remote access), software, network, and/or Confidential Information, Seller agrees as follows:
i. Seller shall conduct a background investigation on each individual assigned to perform Services. The investigation must take place in each of the following: (a) the county (or comparable political subdivision), (b) state, and (c) 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 (10) years prior to said check. Seller shall not assign any individual that has a felony conviction or pending felony charge on their record to perform the Services and shall prohibit such individual from accessing any of Buyer’s systems (including remote access, software, network) and/or Confidential Information. However, if Seller wishes for any individual with a felony criminal record to perform the Services or otherwise access the information addressed in this subsection, such background check shall be disclosed by Seller to Buyer and Buyer may, at its sole option, permit the individual to perform the services, notwithstanding this subsection.
ii. Seller 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 10-panel drug test on all individuals assigned to perform Services. Seller shall not assign any individual that has failed a drug screen.
iii. Seller and all individuals assigned by Seller to perform the Services or permitted access to any of Buyer’s systems (including remote access, software, network) and/or Confidential Information shall comply with all of Buyer’s code of conduct, policies and procedures governing such access (including remote access) and use of Buyer locations, systems, software, network and/or Confidential Information.