These purchase order terms include the purchase order incorporating them by reference (the “Purchase Order”) between the Cisco affiliate and the Supplier affiliate identified in the Purchase Order (“Cisco” and “Supplier,” respectively). These purchase order terms also include any statement of work or other attachments or exhibits physically attached to, or otherwise expressly incorporated in, the Purchase Order (such statement of work, attachment(s), or exhibit(s), the “SOW”). If Cisco and Supplier are parties to a valid master agreement and: (a) there is no SOW, or (b) the SOW provides that the terms of such master agreement govern Cisco’s and Supplier’s rights and obligations under the Purchase Order or SOW, then the terms of such master agreement supersede these purchase order terms. Otherwise, these purchase order terms govern Cisco’s purchase, and Supplier’s provision, of the services, goods, and other deliverables as described in the Purchase Order. Supplier’s electronic or written acceptance or acknowledgement of the Purchase Order or Supplier’s commencement of performance, constitutes Supplier’s acceptance of these purchase order terms. Cisco limits its acceptance of any offer from Supplier to these purchase order terms, and Cisco rejects any additional or different terms in any other communication between the parties. Cisco may revoke the Purchase Order at any time prior to Supplier’s acceptance.
1.1 Supplier shall provide the services as set out in these purchase order terms (such services, the “Services”). Supplier shall perform all Services in a manner consistent with industry standards reasonably applied to the performance of such work.
1.2 Supplier shall provide the deliverables set out in these purchase order terms (the “Deliverables”). Supplier shall not infringe upon any third party’s intellectual property rights in the course of providing the Services or Deliverables, and Supplier shall not provide Cisco any software that contains open source technology or code designed to disrupt or impede operation or grant unauthorized access, such as viruses, worms, and back doors. If the Services or Deliverables fail to conform to the specifications, drawings, samples, descriptions, and requirements in these purchase order terms or contain material defects in design, materials, workmanship, performance, or title, Supplier shall at Cisco’s option (without charge or delay), repair, replace, re-perform, or modify the Services and Deliverables to promptly correct such nonconformance or defect during or after the term of these purchase order terms. The SOW may provide for additional rights and remedies in connection with defects or nonconformance.
1.3 At Cisco’s request, Supplier shall remove any individual(s) that are in contact with Cisco’s employees or customers at no cost to Cisco.
1.4 Supplier shall not subcontract its obligations under these purchase order terms, in whole or in part, to any other person or entity without Cisco’s prior written approval. Supplier is responsible for the acts and omissions of its subcontractors.
1.5 Supplier shall not assign or transfer any rights (except rights to payments) or obligations under these purchase order terms without Cisco’s prior written consent. Cisco may assign these purchase order terms to any Cisco affiliate without prior notice or consent.
1.6 Cisco may make available to Supplier certain equipment or other assets (“Equipment”). Supplier shall bear risk of loss of the Equipment from the time the Equipment is placed at Supplier’s disposal until Supplier returns the Equipment in accordance with Cisco’s instructions. Supplier shall ensure Equipment is used solely for the provision of the Services and Deliverables. Supplier shall use, store, and transport all such Equipment in accordance with the user manuals and Cisco instructions and shall keep Equipment free of all liens. Supplier shall execute all measures required for safeguarding the Equipment and Cisco’s right, title, and interest to such Equipment. Except as otherwise agreed in writing, only Cisco or its designee may provide required maintenance of Equipment. If Supplier fails to timely deliver the Equipment without damage (reasonable wear and tear excepted) to Cisco or its designee in accordance with Cisco’s instructions, Supplier shall pay all Cisco costs to repair or replace the Equipment at the applicable location, including costs of replacement parts, labor, shipping, customs, and duties.
2.1 Cisco shall pay Supplier the fees set out in the Purchase Order or SOW for the Services and Deliverables Supplier provides. Except as otherwise agreed in writing, Cisco is not obligated to pay for any other cost or expense.
2.2 Supplier shall provide ERP-generated invoices to Cisco after delivery of the Services and Deliverables, and Cisco shall pay undisputed invoices in accordance with the payment terms set out in the Purchase Order. If Cisco disputes an invoice, Supplier shall either correct the invoice or separate the disputed and undisputed portions into two separate invoices. The parties shall diligently attempt to resolve disputed items. Cisco will not be obligated to pay any fees, costs, or expenses for Services or Deliverables provided more than ninety days before Cisco’s receipt of an invoice. Cisco may reject corrections or changes to invoices received more than forty-five days after receipt of the initial invoice.
2.3 The fees set out in the Purchase Order do not include any sales, use, VAT, GST, property, or excise taxes, customs, import and export duties, or other tax, regardless of how or on whom the tax is levied and of whether such tax is based on any charge, price, fee, or other amount, the Services, the Deliverables, or their use. Supplier shall determine the applicable taxes and rates arising directly from Supplier’s provision of the Deliverables or Services, excluding taxes based on Supplier’s income, and shall add such taxes to the invoice. Cisco shall reimburse Supplier for any taxes that Cisco owes, and that Supplier pays, after Cisco receives a valid tax receipt documenting such payment. Supplier is responsible for any interest or penalties resulting from Supplier’s failure to promptly pay tax as required by law.
Cisco and Supplier shall comply with the obligations set out in https://www.cisco.com/c/m/en_us/about/supplier-info/access-non-mfg/gps-contracts/uma-gen-conf-info-v1-1.html and shall protect the other party’s Confidential Information (as defined in such obligations).
4.1 These purchase order terms will continue in effect until Cisco has accepted all Deliverables and Services, unless earlier terminated as provided in these purchase order terms.
4.2 Cisco may terminate these purchase order terms, at any time for convenience upon fifteen days’ written notice to Supplier or such other notice period as set out in the SOW.
4.3 Either party may terminate these purchase order terms if the other party breaches a material provision of these purchase order terms and fails to cure such breach within thirty days of receipt of written notice of breach.
4.4 Notwithstanding anything in these purchase order terms to the contrary, Cisco may immediately terminate these purchase order terms if: (a) Supplier breaches Section 5 (Supplier Compliance) or Section 6 (Ownership and License); (b) Supplier fails to comply with Cisco’s security policies or requirements; (c) all or substantially all of Supplier’s assets are sold, or a controlling interest in Supplier is transferred, to an unaffiliated third party; or (d) Supplier commences or has commenced against it proceedings under any bankruptcy or liquidation law, or a receiver or similar officer is appointed with respect to a substantial part of its assets.
4.5 Upon expiration or termination of these purchase order terms, Cisco shall promptly return or destroy any Supplier Confidential Information in Cisco’s possession pertaining to these purchase order terms and pay Supplier invoices for Services and Deliverables provided up to the effective date of termination. Upon expiration or termination of these purchase order terms, Supplier shall:
4.5.1 immediately cease work on Services and Deliverables provided under these purchase order terms;
4.5.2 deliver to Cisco or its designee, in a timely and professional manner, all Equipment in the same condition Supplier received it, reasonable wear and tear excepted, and all Deliverables related to these purchase order terms;
4.5.3 return to Cisco or destroy, at Cisco’s option, all Confidential Information related to these purchase order terms and provide Cisco a certificate of destruction for any destroyed Confidential Information; and
4.5.4 designate a qualified individual to be Cisco’s single point of contact for all Supplier obligations in connection with this Section 4.5.
5.1 Supplier shall comply with all laws and regulations applicable to Supplier’s performance of its duties and responsibilities under these purchase order terms (“Applicable Law”), including:
5.1.1 anti-bribery laws such as the U.S. Foreign Corrupt Practices Act and the UK Bribery Act 2010;
5.1.2 technology export, use, and transfer laws of the United States and other countries. Supplier shall provide documentation and assistance Cisco reasonably requests in connection with securing government authorizations or providing required reports. Supplier shall not use Cisco export/re-export authorizations to secure its own activities;
5.1.3 maintenance of accurate and complete Supplier Records of all transactions under these purchase order terms in accordance with applicable regulatory and generally accepted industry standards, including maintenance of records pertaining to the import and export/re-export of Cisco technology in compliance with Applicable Law; provided, Supplier shall maintain all such Supplier Records for not less than five years. For purposes of these purchase order terms, “Supplier Records” means all information (whether stored electronically or in other media) relating to the Services or Deliverables, including information pertaining to inventory, import/export and shipping, legal documents and notices, account records necessary to document the basis of charges billed to Cisco, and all other documents and materials created or used in the performance of Supplier’s obligations under these purchase order terms;
5.1.4 occupational health and safety laws, regulations, and requirements, including applicable job hazard analysis, risk assessments, exposure assessments, training, and injury reporting and tracking; and
5.1.5 environmental laws, regulations, and requirements, including applicable management and training requirements relating to waste, air emissions, wastewater, and stormwater. Supplier shall comply with all property and site access restrictions and requirements.
5.2 Supplier shall also comply with:
5.2.1 the terms of any master data protection agreement to which Cisco and the Supplier are parties. If Supplier has access to Cisco data and Cisco and Supplier are not parties to a master data protection agreement, then Supplier shall comply with the master data protection agreement at: http://www.cisco.com/c/en/us/about/legal/supplier-portal.html; and
5.2.2 Cisco’s Supplier Code of Ethics: http://www.cisco.com/web/about/ac50/ac142/supplier/terms_and_conditions_for_purchase_orders_list.html#Code.
5.3 Supplier shall maintain all information in its possession or under its control that Cisco owns or that Supplier manages on Cisco’s behalf under these purchase order terms until Supplier returns such information to Cisco or destroys it in accordance with Cisco’s written instructions.
5.4 Supplier shall make reasonable efforts to support Cisco’s commitment to diversity, including reporting, as requested by Cisco: (a) the diversity of Supplier’s workforce providing Deliverables and Services to Cisco under this agreement; and (b) Supplier’s expenditures with diverse suppliers. Cisco’s diverse business development program is described at: https://www.cisco.com/c/en/us/about/supplier-information/supplier-diversity.html.
6.1 Cisco owns all right, title, and interest in the Deliverables and in any technology, items, and information resulting from Supplier’s activities under or in anticipation of the Purchase Order or SOW, including any tangible or intangible derivatives, improvements, and modifications (“Work Product”). Supplier hereby transfers, conveys, and assigns to Cisco all of its right, title, interest, and intellectual property rights in the Deliverables and the Work Product. Cisco has the exclusive right to apply for and register any patents, mask work rights, copyrights, and other proprietary rights protections with respect to the Deliverables and Work Product, and Supplier shall execute such documents and take such other actions as Cisco may reasonably request, at Cisco's expense, to apply for, register, perfect, and protect Cisco's rights in the Deliverables and Work Product. If for any reason Cisco is unable to secure Supplier's signature to apply or register for any such proprietary rights protections, Supplier hereby irrevocably appoints Cisco and its officers and agents as Supplier's agent and attorney in fact, to act for and on Supplier's behalf to execute and file any such applications or registrations and to do all other lawfully permitted acts to further the prosecution and issuance of patents, copyright, and mask work registrations with the same legal force and effect as if executed by Supplier.
6.2 Property Supplier develops outside the scope of the Purchase Order and SOW remains Supplier’s property. However, Supplier hereby grants to Cisco a perpetual, irrevocable, fully paid up, royalty-free, non-exclusive, worldwide right and license to use, exploit, and exercise in connection with Cisco's use of the Services and Deliverables all such property and any intellectual property rights in such property.
6.3 Any assignment of copyrights under these purchase order terms includes all moral rights, including rights of paternity, integrity, disclosure, and withdrawal (“Moral Rights”). To the extent allowed by law, Supplier hereby waives all Moral Rights and consents to any action of Cisco that would violate such Moral Rights in the absence of such consent. To the extent such Moral Rights cannot be assigned or waived under applicable law, Supplier unconditionally and irrevocably grants to Cisco an exclusive, irrevocable, perpetual, worldwide, fully-paid, and royalty-free license, with rights to sublicense through multiple levels of sublicensees, to reproduce, create derivative works of, distribute, publicly and digitally perform, and publicly and digitally display by all means now known or later developed, such Moral Rights.
7.1 Supplier shall implement and maintain a written business continuity plan (“BCP”) designed to ensure the continued availability of essential business functions during events that would otherwise affect Supplier’s ability to provide the Services and Deliverables. Supplier shall include in the BCP evidence of a Business Impact Analysis (BIA) that identifies essential business functions and establishes their Recovery Time Objectives (RTO), Crisis Management Plans (CMP) to coordinate and communicate appropriate continuity actions, and Disaster Recovery Plans (DRP) for all essential business functions necessary to meet contractual obligations with Cisco under these purchase order terms. Supplier shall review, revise, and test/exercise the BCP not less than once every twelve months. Supplier shall complete a BCP assessment, using Cisco’s supplier assessment tool, within thirty days of Cisco’s written request.
7.2 If a party is unable to perform one or more obligations due to epidemic/pandemic, fire, flood, earthquake, hurricane, or similar natural disasters, war, terrorism, riots, rebellions, or revolutions, the party is excused from such obligation(s). Events affecting Supplier’s customers or business apart from these purchase order terms and Supplier’s failure to perform its obligations under Section 7.1 do not excuse Supplier’s failure to timely perform its obligations. The affected party shall provide prompt notice to the other of such event and shall use commercially reasonable efforts to resume performance without delay. If Supplier is unable to perform its obligations for more than forty-eight hours by reason of an event described in this Section 7.2, Cisco may, upon notice to Supplier: (a) cease payment of fees until Supplier recommences its performance; or (b) immediately terminate these purchase order terms and pay only those fees then due and payable.
No waiver of any right constitutes a subsequent waiver of such right or any other rights under these purchase order terms. A waiver is only valid if in writing.
Except as the parties otherwise expressly agree in writing: (a) Supplier does not have an exclusive right to provide to Cisco services and deliverables similar to the Services and Deliverables; and (b) neither party is a partner, employee, or agent of the other nor has authority to bind the other in any way.
These purchase order terms are the complete agreement between the parties regarding their subject matter and supersede all prior and contemporaneous oral or written communications. These purchase order terms may not be modified by course of performance; they may only be modified by a written agreement executed by both parties. In the event of a conflict between the provisions of these purchase order terms and provisions set out in a hyperlink or SOW, the provisions of these purchase order terms prevail. In the event of a conflict between provisions of a SOW and provisions set out in the Purchase Order or a hyperlink incorporated by reference into these purchase order terms, the provisions of the Purchase order and of the hyperlink prevail.
If a court holds any provision of these purchase order terms illegal, invalid, or unenforceable, the parties would want the court to interpret these purchase order terms as follows:
11.1 By modifying any unenforceable provision to the minimum extent necessary to make it enforceable or, if that modification is not permitted by law, by disregarding that provision;
11.2 That the rest of these purchase order terms will remain in effect as written;
11.3 That the unenforceable provision will remain as written in any circumstances other than those in which the provision is held to be unenforceable; and
11.4 If modifying or disregarding the unenforceable provision would result in failure of an essential purpose of these purchase order terms by holding all of these purchase order terms unenforceable.
The parties shall provide all notices and consents in writing. Notices and consents delivered by hand or by a national transportation company are effective upon delivery to the other party at its respective address as stated on the Purchase Order.
13.1 Supplier shall indemnify Cisco, its affiliates, and their respective directors, officers, and employees against all losses and liabilities as incurred (including legal expenses and costs of other professionals) arising in connection with a claim or proceeding, brought by a third party during or after the term of these purchase order terms, alleging: (a) use of the Services or Deliverables violates any third party’s intellectual property rights; (b) Supplier has failed to comply with Applicable Law, including any failure to satisfy tax or withholding obligations; or (c) Supplier’s negligence, willful misconduct, or breach of any warranty or other obligation under these purchase order terms.
13.2 Cisco shall promptly notify Supplier of any such claim or proceeding. However, delay in notifying Supplier will not relieve Supplier from any obligation except to the extent the delay harmed Supplier. Supplier may assume the defense of such claim or proceeding, and Cisco shall provide reasonable cooperation with Supplier, at Supplier’s expense, in the investigation of any such claim or proceeding. Supplier shall not settle or otherwise consent to a judgment that diminishes Cisco’s rights or interests without Cisco’s express written consent. If Supplier fails to assume such defense, Cisco may defend or settle such claim on Supplier’s behalf.
Except as the parties otherwise expressly agree in writing, the rights and remedies of each party provided in these purchase order terms are not exclusive and are in addition to other rights and remedies provided at law, in equity, or otherwise.
15.1 Upon twenty-four hours’ notice, Supplier shall permit one or more Cisco representatives to inspect during Supplier’s business hours all Supplier facilities, Supplier Records, Cisco Records, and Equipment relating to the Purchase Order up to one year following termination or expiration of these purchase order terms. Supplier shall provide Cisco the Supplier Records and Cisco Records in computer-readable format as specified by Cisco during the periods Supplier is obligated to maintain such Records under Section 5.
15.2 Supplier shall take immediate action to correct all deficiencies identified with respect to such facilities, Records, Equipment, and assets. If an audit identifies any overcharges, Supplier shall promptly credit to Cisco’s account, or pay to Cisco upon demand, the total amount overcharged. Supplier shall bear the cost of audits finding a discrepancy of more than five percent.
16.1 Unless Cisco instructs Supplier otherwise in writing, Supplier shall: (a) deliver all Deliverables to Cisco at the address set out in the Purchase Order; (b) preserve, package, and handle the Deliverables in accordance with best commercial practices and Applicable Law; (c) not deliver items manufactured using a cadmium plating process or that contain polychlorinated biphenyls or chemicals subject to a reporting requirement under Section 8(e) of the Toxic Substances Control Act, 15 U.S.C. Section 2607; and (d) include with each delivery a packing list identifying the Purchase Order number, Cisco part number (if applicable), quantity and description of the contents, and the shipping date. Supplier assumes responsibility for all shipping and delivery charges, including customs, duties, taxes, insurance, and costs. Risk of loss for the Deliverables does not pass to Cisco until Cisco accepts such Deliverables.
16.2 Time is of the essence in Supplier’s delivery of the Deliverables and Services. Cisco may reject Deliverables and Services provided after the date(s) set out in the Purchase Order and SOW (“Delivery Date”). Cisco may reject Services and Deliverables that do not conform to applicable specifications and requirements up to 10 business days following Cisco’s receipt. Cisco may: (a) return the non-conforming Deliverables to Supplier for a refund or credit; (b) require Supplier to replace or re-perform the non-conforming Deliverables or Services; or (c) accept the non-conforming Deliverables or Services on the condition that Supplier provide a refund or credit Cisco determines represents the diminished value of the non-conforming Deliverables or Services.
16.3 Cisco will hold any rejected Deliverables at Supplier’s risk and expense, including storage charges, while awaiting Supplier’s return shipping instructions, and Supplier shall bear all costs of return, including shipping and insurance charges. Cisco may, in its sole discretion, destroy or sell at a public or private sale any rejected Deliverables for which Supplier does not provide Cisco return instructions within a reasonable time. Cisco will apply any proceeds of such sale first toward any storage charges. Cisco’s payment for any Services or Deliverables does not constitute Cisco’s acceptance.
17.1 Except as otherwise expressly provided in the SOW: (a) the laws of Italy govern these purchase order terms; and (b) if either party brings against the other party any proceeding in connection with these purchase order terms, that party may bring that proceeding only in the state and federal courts of Italy, and each party submits to the exclusive jurisdiction of those courts for purposes of any such proceeding. However, either party may seek interim or temporary injunctive relief in any court of appropriate jurisdiction with respect to any alleged breach of such party’s intellectual property, confidentiality, or proprietary rights under these purchase order terms, as such a breach may cause the non-breaching party irreparable damage for which the award of damages may not be adequate compensation. The parties specifically disclaim the application of the UN Convention on Contracts for the International Sale of Goods to the interpretation or enforcement of these purchase order terms.
17.2 Supplier shall comply with the insurance coverage requirements set out in: https://www.cisco.com/c/m/en_us/about/supplier-info/access-non-mfg/gps-contracts/uma-gen-insurance-v1-1.html.