These Standard Purchase Order Terms and Conditions (the “Terms”) are between you, the party receiving a purchase order (“Vendor”) and the Alert Logic entity sending you the purchase order (“Alert Logic”). These Terms only apply to purchase order transactions that are not subject to a separate written agreement executed by Vendor and Alert Logic (an “Existing Agreement”). If the parties are subject to an Existing Agreement, then the terms of the Existing Agreement will prevail and govern the purchase order. In the absence of an Existing Agreement, these Terms set forth the terms and conditions that apply to the purchase of services, goods, deliverables, and work product by Alert Logic from Vendor via a purchase order (each, a “PO”). These Terms, along with each applicable PO, form a “Contract” between Vendor and Alert Logic. Capitalized terms used in a PO have the same meaning as those set forth in these Terms unless such terms are otherwise defined in the PO.
1. Acceptance; Modifications. Vendor agrees to these Terms by (a) executing a PO referencing these Terms and returning it to Alert Logic; or (b) upon the earlier of: (i) Vendor’s shipment of goods or commencement of services or deliverables or work product; or (ii) within fifteen (15) days of PO issuance by Alert Logic unless Vendor notifies Alert Logic of non-acceptance (the “Effective Date”). The term of the Contract begins on the Effective Date and continues until the later of: (x) the date set forth on the PO; or (y) until Vendor has performed all of its obligations under the PO. These Terms apply to all goods set forth in a PO (collectively, “Goods”) and all services described in a PO (“Services”). These Terms constitute Alert Logic’s offer to Vendor, which Alert Logic may revoke at any time prior to Vendor’s acceptance. Acceptance by Alert Logic of any offer from Vendor is expressly limited to the terms of the Contract. Alert Logic objects to and will not be bound by any terms and conditions different from or in addition to these Terms, whether contained in any acknowledgement of the PO, or with delivery of any Goods or completion of any Services. These Terms may not be modified, supplemented, or superseded except by a writing signed by an authorized signatory of Alert Logic that provides it is an amendment to these Terms. To the extent that these Terms are treated as an acceptance of Vendor’s prior quote or offer, such acceptance is expressly made on condition of assent by Vendor to these Terms.
2. Goods. Time is of the essence with regard to delivery of Goods. Vendor shall make delivery of Goods pursuant to the terms in the PO (including any shipping or carrier requirements set forth therein). If no delivery schedule is specified, Vendor shall fill such order for Goods promptly and make delivery in an expeditious and cost-effective manner. Alert Logic may in its discretion reschedule any delivery or cancel any PO issued at any time prior to shipment of any Goods or prior to commencement of any Services, and Alert Logic will not be subject to charges/fees for such cancellation. If any Goods are not shipped within the time specified in the PO, then Alert Logic may reject such Goods and cancel the PO without liability or, in the alternative, Alert Logic may demand its allocable share of Vendor’s available Goods and cancel the remaining balance of the PO without liability. Goods must conform to the description and requirements or specifications in the PO. Alert Logic has a reasonable time after receipt of Goods and before payment to inspect them for conformity to the PO and requirements or specifications therein. Goods received prior to inspection are not deemed accepted until Alert Logic has performed testing to determine whether the Goods conform. If the Goods do not conform, then Alert Logic may reject such Goods. Alert Logic will return nonconforming Goods to Vendor on a freight collect basis; Vendor acknowledges that risk of loss will pass to Vendor upon Alert Logic’s delivery to a common carrier. Title to Goods passes to Alert Logic upon delivery. If the Goods ordered are destroyed prior to title passing to Alert Logic, Alert Logic may at its option cancel the PO without liability or require delivery of substitute Goods of equal quantity and quality. Vendor will make such delivery as soon as commercially practicable. If loss of Goods is partial, Alert Logic has the right to require delivery of the Goods not destroyed. All risk of loss remains with Vendor until Alert Logic accepts the Goods. Vendor must pack the Goods in containers that permit safe transportation and handling at reasonable rates considering the particular Goods shipped. Each delivery of Goods must be labeled to identify the contents within, and all boxes and packages must contain itemized packing lists/sheets that identify: Alert Logic, the complete “ship to” address; the contents therein; and the quantity of Goods therein. Alert Logic’s PO number must appear on all shipping containers, packing lists/sheets, and bills of lading. Vendor must identify the country of origin of all Goods delivered.
3. Services and Work Product. Work Product (as defined below) will be considered accepted (“Acceptance”): (a) when Alert Logic provides Vendor written notice of acceptance; or (b) 30 days after delivery, if Alert Logic has not first given Vendor written notice of rejection. Alert Logic may reject Work Product if it deviates from the description, requirements, or specifications in a PO. Acceptance does not imply Alert Logic’s recognition or concession that Work Product complies with such description, requirements, or specifications, or with the warranties or other requirements of the Contract. In case of rejection, Vendor shall correct the deviation and redeliver the Work Product within five days. Redelivery pursuant to the previous sentence will constitute another delivery, and the parties will again follow the acceptance procedures in this Section 3. Alert Logic may terminate the Contract and receive a refund of amounts previously paid if Vendor fails to provide Work Product that conforms to the description, requirements, or specifications in a PO after the second delivery. Vendor shall provide such refund within 30 days of Alert Logic’s written request, and Alert Logic shall promptly return the Work Product. The preceding sentence does not limit the definition of material breach of contract or limit any right or remedy for breach. Any custom software development performed by Vendor for Alert Logic will be considered Services that result in Work Product.
4. Software. If Vendor licenses Alert Logic off-the-shelf software, the Vendor hereby grants a non-exclusive, royalty-free (other than amounts paid pursuant to the PO), transferable license to reproduce, use, and run the software and associated documentation for Alert Logic’s internal business purposes. Alert Logic may allow its subsidiaries and affiliates to exercise such license on its behalf. Alert Logic may make copies of the software or associated documentation as reasonably necessary for its internal business purposes. Alert Logic may install copies of the software and associated documentation on any server operated by or for Alert Logic, including IaaS or cloud storage providers. Vendor reserves and retains all intellectual property rights in the software and associated documentation not expressly granted herein. Except as set forth in this Section 4, off-the-shelf software constitutes “Goods” under these Terms.
5. Payment, Invoicing, and Taxes. Alert Logic will pay the amount set forth on the PO within the period of time set forth in the PO. If no price is set forth on a PO, then Alert Logic will pay Vendor at the price last quoted and accepted by Alert Logic. No other fees or charges will be paid by Alert Logic. Unless otherwise set forth in a PO, Alert Logic shall pay invoices within thirty (30) days from receipt of an invoice submitted in accordance with these Terms. Vendor shall submit all invoices upon completion of Services actually performed or upon delivery of Goods. To be effective, Vendor must submit all invoices to [email protected] if in the United States or [email protected] if in the United Kingdom, and such invoices must contain a reference to the specific PO. Payment does not constitute acceptance. Each invoice submitted by Vendor must be provided to Alert Logic within ninety (90) calendars days of completion of the Services or delivery of Goods. Alert Logic reserves the right to return or reject incorrect invoices. If Alert Logic disputes an invoice, Alert Logic may withhold payment of the disputed amounts therein. Applicable taxes and other charges (shipping costs, duties, imports, tariffs, surcharges) must be stated separately on Vendor’s invoice. Except as otherwise required by applicable law, Alert Logic has no responsibility to pay or withhold from any payment to Vendor any taxes or other charges. All taxes and other charges assessable upon the Goods prior to delivery to Alert Logic will be borne by Vendor. Vendor shall maintain adequate records reflecting the basis for any charges billed in connection with a PO for at least three (3) years following Vendor’s receipt of Alert Logic’s final payment with respect to the PO; Vendor will provide such records to Alert Logic upon request, and such obligation survives expiration or termination of the PO. If Alert Logic has been overcharged, Vendor must pay Alert Logic the amount of such overcharge upon demand, which may be after expiration or termination of the PO.
6. General Representations and Warranties. Vendor represents, warrants, and covenants that: (a) it has the right to enter into the Contract; (b) the performance of the Contract does not and will not violate any third-party agreements; and (c) it has and will maintain all licenses and authorizations needed to carry out its obligations under the Contract.
7. Goods and Services Representations and Warranties. Vendor represents, warrants, and covenants that all Goods and/or Work Product (as defined below) delivered under the Contract will: (a) be free from any defects in workmanship, material, and design; (b) conform to applicable specifications or descriptions; (c) be fit for their intended purpose and operate as intended; (d) be merchantable; (e) be free and clear of all encumbrances; and (f) not infringe or misappropriate any third party’s intellectual property rights, with each warranty covering the longer of: (i) the term of the PO or (ii) eighteen (18) months from date of delivery. If Alert Logic gives Vendor notice of non-compliance with Vendor’s warranties set forth in this Section, Vendor shall, at its own cost and expense, promptly replace or repair the defective or non-conforming Goods and/or Work Product and pay for all related expenses for the return of the defective or non-conforming Goods and/or Work Product to Vendor and the delivery of repaired or replacement Goods and/or Work Product to Alert Logic. If Vendor is providing Services, then Vendor represents, warrants, and covenants that such Services will be performed by personnel of adequate skill, care, and knowledge in accordance with good industry practice and completed in a professional and workmanlike manner.
8. Compliance with Laws Representations and Warranties. Vendor represents, warrants, and covenants that it and the Vendor Agents (defined below) do and will comply with all applicable laws and regulations, including, without limitation, the applicable laws and regulations of the U.S. Government, U.K Government, and any other jurisdiction in which the Goods, Work Product, or Services are provided, relating to or in connection with: (a) the import, export, and re-export of commodities, technical data, and software; (b) privacy and data protection; (c) labor and employment; (d) protection of intellectual property; and (e) anti-corruption, including the United States Foreign Corrupt Practices Act and the UK Bribery Act.
9. Ownership. If Vendor develops or creates any tangible materials for Alert Logic, or develops or creates any inventions, methods, processes, products, deliverables, or work product in connection with this PO (collectively, “Work Product”), then such Work Product is the sole and exclusive property of Alert Logic. Alert Logic will own the copyright to such Work Product as a “work made for hire”. To the extent that any portion of Work Product is not a “work made for hire”, Vendor hereby irrevocably assigns to Alert Logic all right, title, and interest in and to such Work Product (including all intellectual property rights thereto). If Vendor uses any previously owned or licensed intellectual property rights to develop Work Product or incorporates any such intellectual property rights in the Work Product, then Vendor hereby grants Alert Logic a non-exclusive, perpetual, irrevocable, royalty-free license to use, make, have made, sell, offer to sell, import, practice, distribute, reproduce, modify, perform, and display (collectively, “Exercise”) such intellectual property rights but only as used or incorporated in the Work Product. Vendor hereby irrevocably and forever waives, and agrees never to assert, any “moral rights” in or to the Work Product which Vendor may now have, or which may accrue to Vendor’s benefit under U.S. or foreign copyright or other laws and any other similar rights that arise under any other applicable law now in force or hereafter enacted. If such moral rights cannot be waived, then Vendor hereby grants an exclusive (even as to Vendor), perpetual, irrevocable, royalty-free license to Exercise the moral rights in such Work Product. Vendor acknowledges the receipt of equitable compensation for the foregoing assignment and waiver. Vendor will assist Alert Logic in every reasonable way to secure, perfect, register, apply for, maintain, and defend for Alert Logic’s protection all intellectual property rights in and to the Work Product, which obligations survive expiration or termination of the PO. Alert Logic has the sole right to determine the intellectual property treatment of any Work Product, including whether to treat it as a trade secret or file any patent application or copyright or trademark registration on the Work Product.
10. Independent Contractor. The manner and means of providing any Goods, Services, and/or Work Product are subject to Vendor’s sole control. Vendor is an independent contractor without express or implied authority to bind Alert Logic. Neither Vendor nor its employees or agents (“Vendor Agents”) are agents or employees of Alert Logic, and therefore are not entitled to any benefits of Alert Logic. Vendor is responsible for all costs and expenses incident to performing its obligations under the Contract, including the provision of Vendor’s own supplies and equipment. Alert Logic may require a background check on any Vendor Agents who perform Services. Vendor agrees to conduct such a background check in accordance with the standards provided by Alert Logic, but subject to applicable law. Alert Logic will keep the results of any such background check confidential.
11. Insurance. Vendor is solely responsible for maintaining and requiring that Vendor Agents maintain adequate health, auto, workers compensation, employer’s liability, commercial general liability, professional liability, cyber liability, and umbrella insurance, in commercially reasonable amounts. Notwithstanding the foregoing, if Vendor licenses any software to Alert Logic, or by virtue of its Services has access to any Personal Data (as defined below), Vendor must obtain cyber liability and professional errors and omissions insurance in the amounts of at least $3,000,000 per occurrence and designate Alert Logic as an additional insured under such policies. Upon request, Vendor shall provide Alert Logic with certificates of insurance or evidence of coverage before commencing performance under the Contract.
12. Confidentiality. Unless the parties have executed an independent non-disclosure agreement setting out each party’s confidentiality obligations in relation to the subject matter of the PO, the following confidentiality terms apply. Vendor may acquire knowledge of or access to Confidential Information (as defined below) in connection with its performance under the Contract. Vendor shall not disclose such Confidential Information to any third party without the written consent of Alert Logic and shall not use such Confidential Information except in furtherance of its obligations under the Contract. Additionally, Vendor agrees to limit its internal distribution of Confidential Information to Vendor Agents who have a need to know, and to take steps to ensure that the dissemination is so limited, including the execution by Vendor Agents of nondisclosure agreements with provisions substantially similar to those set forth in this Section 12. In no event will Vendor use less than the degree of care and means that it uses to protect its own information of like kind, but in any event not less than reasonable care to prevent the unauthorized use of Confidential Information. Notwithstanding the foregoing non-disclosure obligations, Vendor may disclose Confidential Information that is required to be disclosed pursuant to a requirement of a government agency or law so long as Vendor, to the extent allowed by law, provides reasonable advance notice to Alert Logic of such requirement prior to disclosure. All Confidential Information is and will remain Alert Logic’s property and Alert Logic reserves all right, title, and interest in and to such Confidential Information. Upon Alert Logic’s written request, or the expiration or termination of the Contract, Vendor shall return, transfer, or assign to Alert Logic all Confidential Information, including all Work Product. “Confidential Information” means all information, whether written or oral, in any form, relating to Alert Logic’s current or future business, operations, finances, technology (including all owned or licensed software, hardware, networks, databases, infrastructure, and architecture), services, and strategies. In addition, Confidential Information means any third party’s confidential information disclosed to Vendor during the term of the Contract. Confidential Information does not include any information: (a) that Vendor was lawfully aware of prior to disclosure by Alert Logic; (b) that is publicly known through no wrongful act or failure to act of Vendor; (c) that Vendor developed independently without use of or reference to such Confidential Information, as evidenced by documentation; or (d) that is hereafter lawfully furnished to Vendor by a third party without restriction on disclosure.
14. Indemnity. Vendor shall indemnify, hold harmless, and at Alert Logic’s request, defend Alert Logic, its affiliates, and its and their officers, directors, agents, and employees, against all claims, actions, liabilities, damages, losses, and expenses, including attorneys’ fees and other legal costs, arising out of or relating to the Goods, Work Product, or Services provided pursuant to a PO. The scope of such indemnification and defense includes, without limitation, the following: (a) any claim based on the death of or bodily injury to any person or destruction or damage to property; (b) Vendor’s failure to satisfy any tax and/or customs laws, regulations, or guidelines; (c) any claim based on or alleging the negligence or willful misconduct of Vendor or any Vendor Agents; (d) Vendor’s failure to protect Confidential Information pursuant to these Terms; (e) Vendor’s failure to comply with applicable law or regulation; or (f) any claim of infringement or misappropriation by a third party against Alert Logic relating to the Goods, Work Product, or Services, whether such are provided alone or in combination with other products, software, or processes. Vendor will not settle any such suit or claim without Alert Logic’s prior written approval, which will not be unreasonably withheld. Vendor agrees to pay or reimburse Alert Logic for all fees and costs that may be incurred by Alert Logic in enforcing this indemnification and defense, including attorneys’ fees and other legal costs. If Alert Logic’s or its licensees’ use of any Goods, Work Product, or Services is enjoined or threatened to be enjoined, Vendor must, at its sole cost and expense, either: (i) substitute fully equivalent non-infringing Goods, Work Product, or Services; (ii) modify the Goods, Work Product, or Services so that they no longer infringe but remain equivalent in functionality; (iii) obtain for Alert Logic and its licensees the right to continue using the Goods, Work Product, or Services; or (iv) if none of the foregoing is possible, refund all amounts paid for the infringing Goods, Work Product, or Services.
15. Liability. EXCEPT FOR VENDOR’S INDEMNIFICATION OBLIGATIONS UNDER THESE TERMS, OR ONE OR MORE BREACHES BY VENDOR OF SECTION 12 OR SECTION 13 OF THESE TERMS, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE.
16. Termination. Alert Logic may terminate the Contract upon written notice to Vendor if Vendor fails to perform or otherwise breaches the Contract, files a petition in bankruptcy, becomes insolvent, or dissolves. In the event of such termination, Alert Logic shall pay Vendor for the portion of the Services satisfactorily performed and those conforming Goods delivered to Alert Logic through the date of termination, less reasonable and appropriate offsets, including additional costs to be incurred by Alert Logic in completing the Services. Alert Logic may terminate the Contract for any other reason upon ten (10) days’ written notice to Vendor. Vendor shall cease to perform Services and/or provide Goods under the Contract on the date of termination specified in such notice. In the event of such termination, Alert Logic will be liable to Vendor only for those Services satisfactorily performed and those conforming Goods delivered to Alert Logic through the date of termination. Vendor may terminate the Contract upon written notice to Alert Logic if Alert Logic fails to pay Vendor within thirty (30) days after Vendor notifies Alert Logic in writing that payment is past due. Upon the expiration or termination of the Contract for any reason, Vendor will promptly notify Alert Logic of all Confidential Information or any Work Product in Vendor’s possession and, at the expense of Vendor and in accordance with Alert Logic’s instructions, will promptly deliver to Alert Logic all such Confidential Information and/or Work Product. Any obligations and duties that by their nature extend beyond the expiration or termination of the Contract will survive the expiration or termination of the Contract.
17. Remedies. If Vendor breaches the Contract, Alert Logic will have all remedies available by law and at equity. Vendor’s breach of Section 12 or Section 13 of these Terms will result in irreparable harm and continuing damage to Alert Logic for which there is no adequate remedy at law, and, in the event of such breach, Alert Logic will be entitled to injunctive, equitable, or declaratory relief without the posting of bond.
18. Governing Law and Jurisdiction. The parties agree the governing law and jurisdiction under the Contract are based on the Alert Logic entity under the PO. If the Alert Logic entity under the PO is located in the United States of America, the Contract will be governed by the laws of the State of Texas, and any dispute or litigation concerning the Contract must be submitted to and resolved by a court of competent jurisdiction in Houston, Harris County, Texas. If the Alert Logic entity under the PO is located in the UK, the Contract will be governed by the laws of England and Wales, and any dispute or litigation concerning the Contract must be submitted to and resolved by a court of competent jurisdiction in London, England. If the Alert Logic entity under the PO is located in Colombia, the Contract will be governed by Colombian law, and any dispute or litigation concerning the Contract must be submitted to and resolved by a court of competent jurisdiction in Bogota, Columbia or Cali, Colombia. Notwithstanding the foregoing, Alert Logic may seek equitable, injunctive, or declaratory relief to enforce any of its rights in Confidential Information in any court of appropriate jurisdiction.
19. Export Compliance. Vendor will not export, re-export, resell or transfer any export controlled commodity, technical data, or software: (a) in violation of limitations imposed by the United States or any other applicable government authority; or (b) to any country for which an export license or other governmental approval is required at the time of export, without first obtaining all necessary licenses or other approvals.
20. Notice. All notices, consents, waivers, and other communications required under the Contract must be in writing, and will be deemed to have been delivered either: (a) on the delivery date, if personally delivered, or if delivered by confirmed e-mail; (b) one (1) business day after delivery to any national overnight courier directing delivery on the next business day, receipt requested; or (c) three (3) business days after deposit with the United States Post Office, registered or certified mail, return receipt requested, with adequate postage affixed thereto. All notices to Alert Logic must be sent to the attention of the Procurement Office at: Alert Logic, 1776 Yorktown St., Suite 700, Houston, TX 77056 with a copy to [email protected] and to Vendor at its address as set forth in the PO.
21. Non-Exclusivity. This is not an exclusive agreement. Alert Logic is free to engage others to perform Services or provide Work Product or Goods the same as or similar to Vendor’s.
22. Assignment. Alert Logic has the right to assign the Contract, or any of its rights or obligations under the Contract, without the prior written consent of Vendor. Vendor may not assign the Contract, or any of its rights or obligations under the Contract, without the prior written consent of Alert Logic. Any assignment or transfer without such written consent shall be null and void.
23. Waiver. A waiver of any default or of any term or condition of the Contract will not be deemed to be a continuing waiver or a waiver of any other default or any other term or condition.
24. Severability. If any provision of the Contract is deemed to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions will not in any way be affected or impaired thereby.
25. Entire Agreement. The Contract – consisting of these Terms and the applicable PO – represents and contains the entire agreement and understanding of the parties with respect to such Contract. The Contract supersedes all prior and contemporaneous agreements or understandings, express or implied, verbal or written, of any nature whatsoever with respect to the Contract. The terms of the Contract control and supersede any course of performance and/or trade usage inconsistent with any of the terms of the Contract.