Scope. These Terms of Purchase, together with any documents attached hereto or which incorporate these Terms of Purchase (each, a “PO”), constitute the complete and entire agreement between DataStax, Inc. (“DataStax”) and the vendor identified on the PO (“Supplier”) with respect to the procurement of the products (“Products”), services (“Services”) and/or service deliverables (“Services Deliverables”) identified on the PO. Any additional or different term in any other document or oral communication purporting to be binding on DataStax is a material alteration to this PO and is expressly rejected, even if Supplier conditions acceptance of the PO on DataStax’s agreement to such term. The foregoing notwithstanding, if a Master Agreement is in force between Supplier and DataStax at the time the PO is issued, the terms of such Master Agreement will prevail over any inconsistent term in the PO and herein. As used in these Terms of Purchase, a Master Agreement means a written agreement that has been signed by Supplier and an authorized representative of DataStax. Supplier’s acceptance of the PO, or commencement of performance hereunder, constitutes acceptance of the terms in the PO including these Terms of Purchase.
Delivery and Performance. Supplier shall provide DataStax Services in accordance with the terms in the PO. On or prior to the date(s) on the PO, Supplier shall deliver the Products and the Service Deliverables to DataStax in the quantities and in the manner specified on the PO. If no such delivery dates are specified, delivery will be made within fifteen (15) days of Supplier’s receipt of the PO. Time is of the essence in Supplier’s performance of its obligations, and Supplier will immediately notify DataStax of any actual or potential delay in performance. DataStax may reschedule, terminate or cancel any PO without penalty prior to Service completion or Product shipment. Unless otherwise specified on the PO, Supplier is responsible for all taxes, duties and shipping and delivery charges, including all freight, insurance and packing charges (“Shipping Charges”), and all customs, duties and sales, use, excise, added value and other similar taxes (“Taxes”). With each Product delivery, Supplier will include a packing list with the PO number, the date of shipment, and the Product part number (if applicable), description, and quantity of each Product. Title and risk of loss for Products shall pass to DataStax upon delivery to the destination designated on the PO.
Price and Payment. All pricing shall be as stated on the PO and, unless otherwise specified on the PO, includes all Shipping Charges and Taxes. If applicable Taxes are to be paid by DataStax, Supplier shall identify them separately on the invoice. Supplier will invoice DataStax on the date of shipment for Products; and for Services, on the date of completion, unless otherwise specified on the PO. Each invoice must include the PO number. All undisputed payments will be made in U.S. Dollars within thirty (30) days after the later of: (a) receipt of a properly issued invoice as described above, or (b) acceptance of the Products, Services and/or Service Deliverables (as applicable), unless otherwise indicated on the PO. Payment is deemed to be made on the date of DataStax’s transmittal. DataStax will not be responsible for payment of any invoices for which DataStax has not (i) received the Products, Services or Service Deliverables as ordered or (ii) placed a PO, including but not limited to, renewal of software maintenance and support services, or related service charges.
Acceptance; Returns. Acceptance of Products and Service Deliverables shall be in accordance with the acceptance criteria set forth in the PO. If no such criteria are specified, then DataStax must expressly accept in writing. Payment for Products or Services shall not constitute acceptance. DataStax may reject and return to Supplier (at Supplier’s cost) any Product or Service Deliverables it believes to be defective, or inferior in quality, or not conforming with DataStax’s specifications or Supplier’s warranties. Supplier will issue a return material authorization (RMA) to DataStax within one (1) business day of Supplier’s receipt of DataStax’s rejection notice. If payment has been made, Supplier will issue a full refund to DataStax within ten (10) days from receipt of DataStax’s rejection notice. Supplier shall bear all return Shipping Charges.
Termination. DataStax may terminate this PO at any time, with or without cause, by written notice. Termination is effective immediately unless otherwise specified in the notice, but DataStax will pay the applicable fee set forth in the PO attributable to the Products and Service Deliverable delivered and accepted by DataStax prior to the effective date of termination. Any obligation or duty which, by its nature, should extend beyond the expiration or termination of this PO shall survive its expiration or termination.
Confidentiality. All non-public, confidential or proprietary information of DataStax, including specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts and rebates disclosed by DataStax, the contents of the PO, and the existence of the PO, shall collectively be deemed DataStax Confidential Information, whether disclosed orally or in written, electronic or other form, and whether or not identified as confidential or proprietary. Supplier shall safeguard DataStax Confidential Information, shall not disclose it to any third party, and shall use it only to fulfill Supplier’s obligations under the PO. This Section shall not apply to information that: (a) is or later becomes publicly known through no fault of Supplier; (b) was lawfully in Supplier’s possession without restriction prior to receipt from DataStax; (c) is rightfully received by Supplier from a third party without any duty of confidentiality; or (d) was independently developed by Supplier without use of or reference to DataStax Confidential Information, as shown by written documentation in existence at the time of receipt by Supplier.
Proprietary Interest. Goods. Supplier grants DataStax a worldwide, irrevocable, perpetual, assignable, sublicensable, non- exclusive, fully paid-up, royalty-free license to: use any technology (i) as embedded or incorporated in any Product, or (ii) that is necessary for the use or exploitation of any Product, including any bug fixes, updates or upgrades thereto developed by Supplier for Products and to make, use, sell, offer for sale and import Products. Subject to the foregoing license, Supplier retains ownership of all intellectual property rights in Products. Nothing herein grants any license, right, or interest in any trademark. Service Deliverables. DataStax is the sole owner of all Service Deliverables. Supplier (i) hereby irrevocably assigns to DataStax all right, title and interest in and to Service Deliverables, including all associated intellectual property rights, and (ii) agrees to give DataStax all assistance necessary to assist and/or enable DataStax to vest, perfect, preserve, register and record all such rights. All Service Deliverables are “works made for hire” to the extent permitted by law, and Supplier shall not assert, and shall waive, any “artist’s rights” or “moral rights” therein.
Representations and Warranties. Each party represents and warrants that it has the full power to enter into the PO and to perform its obligations under the PO, and that it will comply with all applicable laws and regulations pertaining to its performance under this PO. Additionally, Supplier represents and warrants that: (a) DataStax shall receive good title to each Product and Service Deliverable, free and clear of all liens, security interest and other similar encumbrances; (b) unless expressly identified and authorized by DataStax at the time of sale, all Products are new and unused, and are not replicas, imitations, look-alikes or “knock-offs”; (c) each Product and Service Deliverable, and DataStax’s use of such Product and/or Service Deliverable, do not and will not infringe or misappropriate any third party’s intellectual property rights, right of publicity or privacy, or any other proprietary rights, whether contractual, statutory or common law; (d) each Product and Service Deliverable is free from all defects in design, material and workmanship during the applicable warranty period (such warranty period shall (i) commence upon the date on which delivery to DataStax occurred, and (ii) last for the time period specified on the PO or in a separate written warranty agreement between the parties or, if none of the foregoing is applicable, then the duration of Supplier’s applicable standard warranty); (e) Supplier and each Product and Service Deliverable will comply with all applicable U.S. federal and state statutes, laws, rules, regulations and orders; (f) each Product and Service Deliverable conforms in all material respects to DataStax’s specifications, Supplier’s quotation or proposal, and Supplier’s specification, brochures and catalogs, and if none of the foregoing is applicable, then such Product is suitable for its advertised or intended use; (g) all Service Deliverables are the original work of Supplier, (h) if software is provided, then such software does not contain any viruses, worms or any other code that will damage or infect any product or program; and (i) all Services will be performed by qualified personnel in accordance with the terms of the PO and in a professional and diligent manner consistent with industry standards and good business practices.
Indemnification. Supplier shall defend, indemnify and hold DataStax, its officers, directors, employees, contractors and agents harmless from and against any and all third party claims, demands, losses, damages or expenses, including reasonable attorneys’ fees and court costs (collectively, “Claims”), arising out of or in connection with: (a) any acts or omissions of Supplier (including any allegation that Supplier, Services or any Product or Service Deliverable caused or allegedly caused bodily injury or death of any person, or damage to property); or (b) breach or alleged breach of any Supplier representation or warranty. DataStax will give Supplier written notice of the Claim and permit Supplier to control its defense or settlement, provided that Supplier must not enter into any settlement that obligates DataStax to remit payment or admit wrongdoing or liability without DataStax’s prior written consent, which may be given or withheld at DataStax’s sole discretion. If a third party enjoins or interferes with the use of any Product or Service Deliverable, then in addition to Supplier’s indemnification obligations as outlined herein, Supplier will use its best efforts to, at Supplier’s sole cost and expense: (i) obtain any license necessary to allow DataStax to continue using the Product or Service Deliverable, (ii) replace or modify the Product or Service Deliverable as necessary to enable such continued use, or (iii) only if (i) or (ii) are not commercially reasonable, promptly refund to DataStax the amount paid for such Product or Service Deliverable.
Insurance. Supplier will take such steps as may be reasonably necessary to prevent personal injury or property damage during any work hereunder that may be performed by any employee, agent or subcontractor of the Supplier at DataStax facilities. Supplier will secure and maintain insurance against general liability, personal injury and property damage in amounts sufficient to protect DataStax in the event of injury or damage. Supplier will comply with all applicable laws, regulations and orders governing the liabilities of an employer to its employees for injuries suffered in connection with employment, and also maintain workers compensation insurance as required by law in the state where services will be provided to DataStax, including employer’s liability coverage. Depending on the services provided, DataStax may require Supplier to carry additional insurance coverage and higher limits. Supplier will provide DataStax with documentation evidencing the required coverage at DataStax’s reasonable request.
Limitation of Liability. IN NO EVENT WILL DATASTAX BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR LOSS OF PROFITS, ARISING OUT OF OR IN CONECTION WITH THE PO, WHETHER OR NOT DATASTAX IS AWARE OF OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. DATASTAX WILL NOT BE LIABLE (UNDER ANY LEGAL OR EQUITABLE THEORY) FOR ANY AMOUNT IN EXCESS OF THE AMOUNT OWED TO SUPPLIER BY DATASTAX UNDER THE APPLICABLE PO. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
Governing Law. The PO will be construed in accordance with, and all disputes will be governed by, the laws of the State of California, without regard to its conflict of laws rules. Each party irrevocably consents to the personal jurisdiction of, and venue in, the state and federal courts in Santa Clara County, California, and irrevocably waives any claim it may have that a proceeding in such court has been brought in an inconvenient forum.
General. Nothing herein is intended nor will be construed as limiting DataStax’s ability to procure any product or service from any third party. Supplier may not identify DataStax as a customer of Supplier, make any public statement regarding the business relationship between Supplier and DataStax, or use any DataStax trademark or logo without DataStax’s prior written approval in each instance, which may be given or withheld at DataStax’s sole discretion. Supplier may not assign any of its rights or delegate any of its obligations under the PO without DataStax’s prior written consent, which may be given or withheld at DataStax’s sole discretion. Any non-conforming assignment shall be null and void and deemed a material breach. Supplier will be fully responsible for all acts and omissions of its employees, agents and subcontractors in the performance of Supplier’s obligations under this PO. Any notice to be given under this PO will be in writing and addressed to the party at the address stated on the PO. Notices must be in writing and will be effective: (a) upon delivery when personally delivered, (b) upon receipt if sent by an overnight service with tracking capabilities, (c) at such time as the party that sent the notice receives confirmation of receipt by the applicable method of transmittal when sent by fax or electronic mail, or (d) within five days of deposit in the mail if sent by certified or registered mail. If any portion of this PO is for any reason found to be invalid, illegal or unenforceable, such portion shall be limited to the minimum extent necessary, and all other provisions shall remain in full force and effect. Failure of either party to enforce rights under this PO is not a waiver of such rights and will not operate or be construed to waive any other provision of the PO. The rights and remedies herein provided are in addition to those available to either party at law or in equity.