Purchase Order Terms and Conditions

Purchase Order Terms and Conditions

1. Scope. These Purchase Order Terms and Conditions, including where applicable Attachment 1 Government Contract-Related Terms and Conditions, ("Terms") govern World Wide Technology, LLC ("WWT") purchase hardware, software, licensing (including subscriptions, cloud and software as a service offering (respectively, collectively "(Products)) and associated support and maintenance services "("Services") from Vendor for resell to the WWT customer ("Customers"). The Affiliates of Vendor and WWT may desire to purchase and resell under this Agreement. Such Affiliates may do so either through the issuance and acceptance of Purchase Orders. No other Vendor or WWT Affiliate will have any liability or obligation whatsoever in connection with the order or participation agreement of another Affiliate. No other terms on Vendor's quote, order form or acknowledgement("Quote") are applicable. WWT's offer to purchase the Products and Services is expressly limited to, and expressly made conditional on, Vendor's acceptance of these Terms. WWT objects to any different or additional terms. Vendor will be deemed to have accepted these Terms: (i) even if Vendor's acceptance purports to make acceptance conditional on acceptance of inconsistent, additional or different terms; (ii) when acknowledged by Vendor in writing; or (iii) if Vendor makes any shipment or performance in response to or in anticipation of a purchase order ("Order").

2. Price; Taxes; Payment Terms. The quantity and description of any Product or Services will be set forth in the WWT Order. WWT makes no representations regarding the number of Orders to be placed, or volume of Products or Services, beyond what is specified in an Order. Except for issuance of an Order to Vendor, nothing in these Terms will constitute a commitment on the part of WWT to purchase any specific quantity, amount, or type of Product or Services. The purchase price will be set forth in the Order. Unless otherwise provided in the applicable Order, the price set forth in the Order includes all applicable taxes, duties, tariffs, surcharges, and other amounts assessable by any government authority with respect to the Products or Services. The purchase price may not be modified or changed without the prior written agreement of WWT. Vendor shall submit invoices in a form acceptable to WWT, utilizing Coupa (instructions provided upon onboarding completion) with the correct WWT Purchase Order on such invoice. Payment terms are net sixty (60) days from date of WWT's receipt in Coupa of a correct and undisputed invoice in local currency. 

3. Warranty. Vendor represents, warrants, and covenants to WWT that the Products and Services: (i) are materially free from defects; (ii) cop; (ii) conform to the specifications and other requirements of the Order as well as any corresponding end user license agreement; (iii) are free and clear of all liens, claims or encumbrances; (vi) comply with all applicable laws, ordinances, regulations, rules or governmental orders; and (v) do not infringe or violate the intellectual property rights of any third parties. Vendor further warrants that the Services hereunder shall be performed by personnel with the experience, training, skill and other qualifications needed to perform the Services, and will be provided in a timely, professional and workmanlike manner... Should there be any failure to conform to any of the above warranties, the Vendor will either repair to replace the nonconforming Product and Services at no charge to WWT or its customers or, if neither of those options are available, refund all monies paid for the breaching Products or Services.

4. Shipment and Delivery; Acceptance. Unless otherwise set forth in the Order, shipments are made FCA Destination (Incoterms 2020). Title and risk of loss of damage and responsibility shall pass from Vendor to WWT at Vendors designated loading. All shipments and deliveries of Product must be in accordance with the quantities and schedules stated in the Order. Substitutes will not be accepted. Time is of the essence. Vendor may not make advanced, late, short or excess deliveries without the prior written consent of an authorized representative of WWT. Vendor will promptly notify WWT of any known or anticipated delay or failure to meet any requirements of the Order. WWT is not obligated to pay for or accept Products or Services that do not comply with the applicable Order, whether due to incorrect (over or short) quantities, untimely shipments or deliveries, or otherwise, and such shipments may be returned at Vendor's expense and risk. All Products and Services are subject to inspection and acceptance. If Vendor delivers nonconforming Products, WWT may, in its sole discretion (i) accept all or any portion of a nonconforming delivery, or (ii) reject all or any portion of the nonconforming delivery. If WWT elects to accept a nonconforming delivery, WWT will only be obligated to pay for the Products that are accepted, subject to a mutually agreeable reduction in price or other consideration. If Vendor fails to deliver the Product within the time period or by the delivery date set forth in the Agreement, WWT, in its sole discretion, reject or accept the late delivery.

5. Import; Export Sales. Vendor agrees that it will not export, re-export, directly or indirectly, any United States origin commodities, technology/technical data or software sold to WWT or its customers, or any direct product of that technical data: (i) in violation of the export laws and regulations of the United States, including but not limited to, the Bureau of Industry and Security Export Administration Regulations and the regulations of the Treasury Department's Office of Foreign Assets Control or any other relevant national government authority; (ii) to any country for which an export license or other governmental approval is required at the time of export, without first obtaining all necessary export licenses or other approvals; (iii) to any country or national or resident of a country to which trade is embargoed by the United States; (iv) to any person or firm on any government agencies Restricted Party List, including, but not limited to the U.S. Department of Commerce's Table of Denial Orders or Entities list, or U.S Treasury Department's list of Specially Designated Nationals; or (v) for use in any sensitive nuclear, chemical or biological weapons, or missile technology end-uses unless authorized by the U.S. Government by regulation or specific license.

6. Confidentiality. Confidential Information shall mean any information in whatever form, and however delivered or communicated, including, without limitation, all code, documentation, product plans, trade secrets, business plans, customer lists, know-how, and all other information of whatever nature related to or incorporated into the business of a Party or other business entity which is an Affiliate of a Party and which is reasonably understood to be of a confidential nature. Confidential Information includes information of others that a Party has agreed to keep confidential or that is conceived, compiled, developed, discovered or received by or made available by a Party to the other Party ("Receiving Party") in any manner. Confidential Information of a Party shall not include information or material that (i) is otherwise rightfully known to the Receiving Party; (ii) is released by a Party to any other person, firm or entity without restriction; (iii) is generally known or easily ascertainable by non-parties of ordinary skill in computer design, computer application software consulting and programming; (iv) is in the public domain through no fault of the Receiving Party; (v) lawfully obtained by the Receiving Party from a third party; or (vi) a Receiving Party is required to disclose by legal process, provided the other Party is given reasonable notice of such law or order and an opportunity to attempt to preclude or limit such production. Nothing contained in this Section 6 shall be construed to allow a Party to reverse engineer or decompile the other Party's Confidential Information. For a period of five (5) years from the receipt of any information deemed Confidential Information hereunder, each Party hereto shall take all steps that are necessary or reasonable to safeguard the secrecy and confidentiality of, and proprietary rights to, the Confidential Information disclosed or provided by another Party, and shall not disclose the foregoing to any third party (other than any employee, agent, director, officer, consultant, affiliate or contractor informed on a "need to know" basis and who has been advised of the confidential nature thereof). Each party shall be responsible for the compliance of such third parties with the restrictions set forth in this Section 6.

7. Insurance.  The Vendor will maintain, at the Vendor's expense, the following insurance coverage's with insurers having an AM Best's Rating of at least A-, VII, and all policies shall be written and respond to claims in the USA and in countries and jurisdictions where the Vendor's products and services are being sold and the Vendor's policies shall be primary and non-contributory to any policies maintained by WWT:

(a) Comprehensive General and Product Liability Insurance including but not limited to liability for completed operations, products liability and product recall written on an occurrence basis for personal and bodily injury, property damage and broad form contractual liability with minimum limits of $1,000,000 per occurrence and $2,000,000 in the aggregate. Insurance shall name WWT, and its Customers, Directors, Officer's and Employees as an additional insured and grant a waiver of subrogation in favor of these same listed parties.

(b) Umbrella/Excess Liability sitting on top and following form of (a) primary coverage above with minimum limits of $5,000,000.

(c) Professional Liability including Network Security & Privacy Liability Insurance including but not limited to coverage for any act, error and omission relating to the manufacturing, services or design with minimum limits of $5,000,000.

If any of the above coverage's are written on a claims made policy form, the Vendor shall provide a policy retroactive date at commencement of this Agreement and shall remain in effect for at least three (3) years beyond termination of this Agreement through a continuous renewal of the same policy or purchasing of an extended discovery and reporting period policy to include the beginning date of this Agreement and three (3) years after termination of these Terms.

Upon request, the Vendor shall provide WWT with Certificates of Insurance evidencing this coverage.  Evidence of this coverage shall be automatically provided by the Vendor to WWT within three (3) days prior to new policy inception dates. 

The insurance required under this Agreement does not represent that coverage and limits will necessarily be adequate to protect the Vendor nor shall it be deemed as a limitation of the Vendor's liability to WWT or its Customers. 

8. Indemnity. Vendor shall indemnify, defend, and hold harmless WWT and its customers, directors, officers, employees, representatives, successors and assigns from against any and actions, demands, allegations, claims, liability, investigations, suits, loss or expense, including, without limitation, reasonable attorneys' fees and cost of litigation ("Claims"), arising out of or related to: (i) the actual or alleged infringement, violation, or misappropriation of a third party's intellectual property rights by Vendor or the Products or Services; (ii) any claims of personal injury, death, or property damage caused by the Products or arising out of the Vendor's performance (or non-performance) of the Services; or (iii) Vendor's negligence or willful misconduct; or (v) any and all Claims arising out of or related to recalls of the Product or Vendor's breach of any end user licensing Agreement.

9. Rights and Remedies.  All rights and remedies of either party hereto are cumulative of each other, and the exercise of one or more rights or remedies will not prejudice or impair the concurrent or subsequent exercise of other rights or remedies.

10. Independent Contractor.  Vendor represents and warrants that it is an independent contractor and not an employee, agent, joint venture or representative of WWT. Nothing in these Terms will be construed as creating an employer-employee or a principal-agent relationship. Vendor has no authority to bind or otherwise obligate WWT in any manner.

11. Notices. All notices required or permitted under this Agreement shall be deemed duly given (a) when delivered by hand or confirmed e-mail transmission; (b) one (1) day after delivery by overnight delivery, or (c) three (3) days after being mailed by certified or registered mail, return receipt requested, with postage prepaid. In each case, notice must be sent to the address for the other Party noted below the signature line of this Agreement, or to such other address and/or facsimile number as either Party shall furnish to the other in writing in accordance with this Section 11.

12. Miscellaneous The validity, performance, and all other matters relating to the interpretation and effect of these Terms shall be governed by the laws of the State of New York, USA without regard to its conflict of law principles. The United Nations Convention on the International Sale of Goods (1980) (as amended from time to time) shall not apply to these Terms or any transactions relating thereto. Vendor may not assign any of its rights or delegate any of its responsibilities under these Terms (by operation of law or otherwise) without the written consent of WWT and any purported attempt to do so will be null and void. If any provision of these Terms is held to be unenforceable, these Terms shall be construed without such provision. Neither party's failure to exercise any of its rights under these Terms will constitute or be deemed a waiver or forfeiture of those rights. These Terms constitutes the complete agreement between the parties and may not be altered or modified except in writing duly executed by an authorized representative of WWT. WWT objects to any inconsistent, additional or different terms in any prior or subsequent invoice, acknowledgment, confirmation or other document. Trade custom, trade usage and past performance are superseded by these Terms and may not be used to interpret these Terms. If any provision of the Terms becomes void or unenforceable by law, the remaining provisions are still valid and enforceable.

Attachment 1

Government Contract-Related Terms and Conditions

1.               Applicability. When World Wide Technology, LLC or one of its affiliates ("WWT") purchases Products or Services from your company ("Company") (i) in support of—either directly or as a subcontractor—a contract with any department, agency, division, or office of the federal government of the United States (a "Federal Contract") or (ii) in support of—either directly or as a subcontractor—a contract with any department, agency, division, or office of any state government or non-federal political division of the United States (a "State Entity Contract", together with Federal Contracts, "Government Contracts"), relevant portions of these Government Contract-Related Terms and Conditions (hereinafter, "Government Terms") apply.

2.               Federal Contract Flow Downs.  When a purchase is being made to support a Federal Contract, the following apply in such manner as is necessary to reflect the position of Company as a subcontractor/supplier to WWT and to enable WWT to meet its obligations. All applicable clauses and provisions of the Federal Acquisition Regulation ("FAR") and supplements, thereof (e.g., the Defense Federal Acquisition Regulation Supplement ("DFARS"), the General Services Acquisition Regulation Supplement ("GSARS")), referenced in these Government Terms are hereby incorporated by reference. 

1. Company represents and warrants that it has completed the annual representations and certifications electronically in SAM accessed through http://www.sam.gov and that each of the Products and Services purchased by WWT is a "Commercial Item" as defined in FAR 2.101, Definitions.

1. As applicable and in accordance with EO 14042, vendor shall abide by the requirements of FAR 52.223-99 and DFARS 252.233-7999 Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors which requires vendor to comply with all guidance, including guidance conveyed through Frequently Asked Questions, published by the Safer Federal Workforce Task Force (Task Force Guidance) at https://www.saferfederalworkforce.gov/contractors/, as amended, for vendor workplace locations.

1. Terms used in this paragraph have the meanings given them in FAR 52.204-24, Representation Regarding Certain Telecommunications and Video Surveillance Services or Equipment, and FAR 52.204-25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment. Unless advised otherwise by Company, WWT has represented that Company is not providing covered telecommunications equipment or services hereunder; Company shall immediately inform WWT if Company has reason to suspect such representation is inaccurate.  Company is prohibited from providing and represents that it will not provide any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system unless an exception at paragraph (c) of FAR 52.204-25, applies or the covered telecommunication equipment or services are covered by a waiver described in FAR 4.2104, Waivers.  In the event Company identifies covered telecommunications equipment or services used as a substantial or essential component of any system, or as critical technology as part of any system, during contract performance hereunder, Company shall comply with the reporting requirements in FAR 52.204-25(d).  Company shall insert the substance of FAR 52.204-25, including FAR 52.204-25(e) in all subcontracts and other contractual instruments, including subcontracts for the acquisition of commercial items.

1. The rights and obligations set forth (and, when applicable, as specially tailored in the underlying Federal Contract and/or prime contract in support, thereof) in subsections (a), Inspection/Acceptance, (e), Definitions, (h), Patent Indemnity, (j), Risk of Loss, (k), Taxes, (l), Termination for the Government's Convenience, (m), Termination for Cause, (n), Title, (o), Warranty, (q), Other Compliances, (r), Compliance with Laws Unique to Government Contracts, and (u), Unauthorized Obligations, of FAR 52.212-4, Contract Terms and Conditions—Commercial Items, shall apply, except that "Contractor" shall mean "Company" and "Government" shall mean "WWT", provided, however, that, with respect to FAR 52.212-4(u)(1), "Government" shall mean "Government and/or WWT, as applicable".

1. Where the Federal Contact contains FAR 52.227-15, Representation of Limited Rights Data and Restricted Computer Software, Company shall complete the representation included in such clause and provide its response to WWT.

1. Additionally, if and to the extent the following clauses or provisions are included in the underlying Federal Contract and/or the prime contract in support, thereof, such clauses and/or provisions apply as though Company is the "Contractor", "Offeror" and/or "subcontractor", as the case may be. Full text of these clauses and provisions may be provided upon request, and they are also available via the internet. WWT may flow down additional terms and conditions included in the underlying Federal Contract and/or prime contract in support, thereof, as necessary to reflect the position of Company as a subcontractor/supplier to WWT and to enable WWT to meet its obligations.

1. FAR 52.203-17, Contractor Employee Whistleblower Rights and Requirement to Inform Employees of Whistleblower Rights (additionally, when a sale is in support of a DOJ award, Company represents and warrants that it will distribute the "Whistleblower Information for Employees of DOJ Contractors, Subcontractors, Grantees, or Sub-Grantees or Personal Services Contractors" document found at https://oig.justice.gov/sites/default/files/2020-04/NDAA-brochure.pdf as required by the DOJ clause WHISTLEBLOWER INFORMATION DISTRIBUTION (OCT 2021))
2. FAR 52.204-23, Prohibition on Contracting for Hardware, Software, and Services Developed or Provided by Kaspersky Lab and Other Covered Entities, as required by any purchase order hereunder
3. FAR 52.212-5, Contract Terms and Conditions Required to Implement Statutes or Executive Orders—Commercial Items
4. FAR 52.222-21, Prohibition of Segregated Facilities
5. FAR 52.222-26, Equal Opportunity
6. FAR 52.222-35, Equal Opportunity for Veterans
7. FAR 52.222-36, Equal Opportunity for Workers with Disabilities
8. FAR 52.222-37, Employment Reports on Veterans
9. FAR 52.227-14, Right in Data—General (applicable when data will be produced, furnished, or acquired under this Agreement or an Order, unless excepted by FAR 27.409(b)(1)(i)-(vii))
10. FAR 52.227-18, Rights in Data—Existing Works (applicable where Company has provided Existing Works as defined in FAR 27.405-2)
11. FAR 52.227-19, Commercial Computer Software License
12. FAR 52.244-6, Subcontracts for Commercial Items
13. DFARS 252.204-7004, DoD Antiterrorism Awareness Training for Contractors (applicable where Company has routine physical access to a Federally controlled facility or military installation)
14. DFARS 252.204-7009, Limitations on the Use or Disclosure of Third-Party Contractor Reported Cyber Incident Information (applicable where Company services support Government activities related to safeguarding covered defense information and cyber incident reporting)
15. DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting (applicable where Company provides operationally critical support, or where Company's performance will involve covered defense information)
16. DFARS 252.204-7018, Prohibition on the Acquisition of Covered Defense Telecommunications Equipment or Services
17. DFARS 252.204-7020, NIST SP 800-171 DoD Assessment Requirements (applicable unless transaction is solely for the acquisition of COTS items)
18. DFARS 252.211-7003, Item Unique Identification and Valuation (applicable where Company provides any item subject to a Unique Item Identifier)
19. DFARS 252.223-7008, Prohibition of Hexavalent Chromium (applicable where Company provides supplies, maintenance and repair services, or construction materials)
20. DFARS 252.225-7009, Restriction on Acquisition of Certain Articles Containing Specialty Metals (applicable where Company provides items containing specialty metals)
21. DFARS 252.227-7013, Rights in Technical Data--Noncommercial Items (applicable whenever any technical data for noncommercial items, or for commercial items developed in any part at Government expense is delivered to the Government)
22. DFARS 252.227-7015, Technical Data – Commercial Items (applicable whenever any technical data related to commercial items developed in any part at private expense is delivered to the Government)
23. DFARS 252.227-7019, Validation of Asserted Restrictions – Computer Software
24. DFARS 252.227-7025, Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends
25. DFARS 252.227-7028, Technical Data or Computer Software Previously Delivered to the Government
26. DFARS 252.227-7037, Validation of Restrictive Markings on Technical Data (applicable whenever Company delivers technical data)
27. DFARS 252.239-7010, Cloud Computing Services (applicable whenever Company efforts involve or may involve cloud services)
28. DFARS 252.244-7000, Subcontracts for Commercial Items and Commercial Components (DoD Contracts)
29. DFARS 252.246-7007, Contractor Counterfeit Electronic Part Detection and Avoidance System (applicable whenever Company provides electronic parts or assemblies containing electronic parts)
30. DFARS 252.246-7008, Sources of Electronic Parts (applicable whenever Company provides electronic parts or assemblies containing electronic parts and Company is not the original equipment manufacturer of such electronic parts or assemblies containing electronic parts)
31. DFARS 252.247-7023 Transportation of Supplies by Sea (applicable whenever acquisition is at or below the simplified acquisition threshold)

3.               State Entity Contract Flow Downs.  Company understands and acknowledges that State Entity Contracts, may contain conditions that WWT is unable to negotiate. To the extent the applicable State Entity Contract contains limitations of liability, indemnification, termination for convenience, changes, information security, technical data and computer software, liquidated damages, warranties, insurance, and compliance with law requirements, Company accepts such additional terms and conditions as binding on Company as though Company is WWT. 

4.               Order of Precedence.  These Government Terms shall govern in the event of any conflict between these Government Terms and any other contractual documentation between the Parties related to the subject transaction.  A conflict shall not be deemed to exist where the requirements and obligations of Company under these Government Terms are lesser or lower than those contained in other relevant contractual documentation between the Parties.