Last Updated: February 8, 2021
(a) These terms and conditions of purchase (these “Terms”) are the only terms which govern the purchase of goods and services (“Services”) by Global Upside, LLC (“Buyer”) from the seller (“Seller”) named in the purchase order (the “Purchase Order”). The term “Buyer” also includes Buyer’s employees, agents, officers, managers, directors, successors and assigns. The term “Seller” refers to the vendor providing Services to Buyer, together with its employees, agents, subcontractors, suppliers and all other persons performing Services on Seller’s behalf. The term “Services”, wherever appearing in these Terms means any and all services, work or labor of any kind furnished or performed by Seller under these Terms and any subsequent amendments, changes or modifications hereof.
(b) The Purchase Order and these Terms comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. If any Terms of this Purchase Order conflict with the terms within a Preferred Partner Agreement between the parties, the Terms of the Preferred Partner Agreement shall control in regard to the Services defined herein. These Terms prevail over any of Seller’s general terms and conditions of sale regardless of whether or when Seller has submitted its sales confirmation or such terms. These Terms expressly limit Seller’s acceptance to the terms herein and no other or inconsistent terms of Seller, no modification, amendment or waiver and no cancellation, change or return of any Purchase Order will be binding on Buyer until agreed in writing by Buyer’s authorized representative. No representation, promise or term not set forth herein has been or may be relied on by Seller, and any terms not contained herein are expressly objected to and rejected. Buyer’s acceptance of any Purchase Order, whether oral or written, is based on the express condition that Seller agrees to all terms and conditions of these Terms. Seller acknowledges that these Terms are subject to change from time to time and the parties agree that each Purchase Order will be governed by the version of these Terms available online at the time of such Purchaser Order. Seller’s acknowledgment of these Terms, the performance of Services referenced herein, or presentation of an invoice by Seller will constitute Seller’s acceptance of these Terms.
(a) All Services must be delivered as specified in the Purchase Order, free of any outstanding delivery charges.
(b) Seller shall provide the Services to Buyer as described and in accordance with the schedule set forth in the Purchase Order and in accordance with the terms and conditions set forth in these Terms.
(c) Completed Services (“Deliverables”) will be delivered in a timely manner in accordance with the terms set forth in the Purchase Order.
(d) Seller acknowledges that time is of the essence with respect to Seller’s obligations hereunder and the timely delivery of the Services, including, but not limited to, all performance dates, timetables, project milestones and other requirements as noted in the Purchase Order or otherwise communicated.
The price of the Services shall be the price stated in the Purchase Order (the “Price”). Unless otherwise specifically set forth in writing in the Purchase Order, the Price includes all costs necessary to enable or facilitate the performance of the Services. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Buyer.
Seller shall issue an invoice to Buyer on or any time after the completion of delivery and only in accordance with these Terms. Such invoices need to be received by the Buyer no later than 30 days from the delivery of the Services. Buyer is under no obligation to honor any invoices received later than 45 days from the date of provision of Services.
Buyer shall pay all properly invoiced amounts due to Seller within 30 days after Buyer’s receipt of such invoice, except for any amounts disputed by Buyer in good faith. All payments hereunder must be in the currency specified in the Purchase Order. Without prejudice to any other right or remedy it may have, Buyer reserves the right to set-off at any time any amount owing to it by Seller against any amount payable by Buyer to Seller under these Terms or otherwise. In the event of a payment dispute, Buyer shall deliver a written statement to Seller no later than 10 days prior to the date payment is due on the disputed invoice listing all disputed items and providing a reasonably detailed description of each disputed item. Amounts not so disputed are deemed accepted and will be paid, notwithstanding disputes on other items, within the period set forth in this Section. The parties shall seek to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under these Terms notwithstanding any disputes.
5. Seller’s Obligations Regarding Purchased Services
Seller performs the Services at its OWN RISK and Seller shall comply with each of the following obligations:
(a) Before the date on which the Services are to start, obtain, and at all times during the term of this engagement, maintain, all necessary licenses, permits and consents and comply with all relevant laws applicable to the provision of the Services.
(b) Comply with all rules, regulations and policies of Buyer, including security procedures concerning systems and data and remote access thereto, building and facility security procedures, including the restriction of access by Buyer to certain areas of its premises or systems for security reasons, and general health and safety practices and procedures.
(c) Maintain complete and accurate records relating to the provision of the Services under these Terms, including records of the time spent and materials used by Seller in providing the Services in such form as Buyer shall approve. During the term of this engagement and for a period of two years thereafter, upon Buyer’s written request, Seller shall allow Buyer to inspect and make copies of such records and interview Seller personnel in connection with the provision of the Services.
(d) Obtain Buyer’s written consent, which may be given or withheld in Buyer’s sole discretion, prior to entering into agreements with or otherwise engaging any person or entity, including all subcontractors and affiliates of Seller, other than Seller’s employees, to provide any Services to Buyer (each such approved subcontractor or other third party, a “Permitted Subcontractor”). Buyer’s approval shall not relieve Seller of its obligations, and Seller shall remain fully responsible for the performance of each such Permitted Subcontractor and its employees and for their compliance with all of the Terms as if they were Seller’s own employees. Nothing contained in these Terms shall create any contractual relationship between Buyer and any Seller subcontractor or supplier.
(e) Require each Permitted Subcontractor to be bound in writing by the confidentiality provisions of these Terms, and, upon Buyer’s written request, to enter into a non-disclosure or intellectual property assignment or license agreement in a form that is reasonably satisfactory to Buyer.
(f) Ensure that all persons, whether employees, agents, subcontractors, or anyone acting for or on behalf of the Seller, are properly licensed, certified or accredited as required by applicable law and are suitably skilled, experienced and qualified to perform the Services.
(g) Ensure that all of its equipment (including but not limited to hardware, software, internet, systems, etc.) used in the provision of the Services is in good working order and suitable for the purposes for which it is used and conforms to all relevant legal standards and standards specified by the Buyer.
6. Term and Termination
(a) For ongoing Services, the Purchase Order will remain in effect until terminated by either Party.
(b) Either Party, in its sole discretion, may terminate the Purchase Order, in whole or in part, at any time without cause, by providing at least thirty (30) days’ prior written notice to the other party.
(c) Upon expiration or termination of the Purchase Order for any reason:
(i) Seller shall (i) promptly deliver to Buyer all Deliverables (whether complete or incomplete) for which Buyer has paid and all of Buyer’s Materials; (ii) promptly remove any of Seller’s equipment or employees or those of any Permitted Subcontractor located at Buyer’s premises; and (iii) on a pro rata basis, repay all fees and expenses paid in advance for any Services or Deliverables which have not been provided.
(ii) Each Party shall (i) return to the other party all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on the other Party’s Confidential Information (as defined in Section 16, below); (ii) permanently erase all of the other Party’s Confidential Information from its computer systems; and (iii) certify in writing to the other party that it has complied with the requirements of this clause; provided, however, that Buyer may retain copies of any Confidential Information of Seller solely to the extent necessary to allow it to make full use of the Services and any Deliverables.
(a) Seller warrants to Buyer that it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations.
(b) The warranties set forth in this Section are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer’s discovery of the noncompliance of the Services with the foregoing warranties. If Buyer gives Seller notice of noncompliance pursuant to this Section, Seller shall, at its own cost and expense, promptly repair or re-perform the applicable Services. Seller will obtain from subcontractors and vendors all available warranties and guarantees with respect to design, materials, workmanship, equipment and supplies furnished for Buyer’s benefit. Should a subcontractor or vendor seek to defend on grounds that Seller committed error, Buyer may enforce this warranty against Seller and Seller will resolve all such issues with the subcontractor/vendor. All warranties shall survive Buyer’s acceptance of Services.
Seller shall defend, indemnify and hold harmless Buyer and Buyer’s parent companies and owners, and each of their subsidiaries, affiliates, successors or assigns and each of their respective directors, officers, shareholders, managers and employees (collectively, “Indemnitees”) from and against any and all claims, losses, suits, damages, liabilities, settlements, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) that, directly or indirectly, arise from or relate to (a) any breach or violation of these Terms, including any representation, warranty or guarantee; (b) Losses resulting from Seller’s negligence or willful misconduct; and (c) injury to property (including loss of use thereof) of Buyer or others arising out of or in any way connected with performance of the Services, including, but not limited to, those that result solely or concurrently from Buyer’s negligence; provided, however, that Seller will have no obligation to indemnify Buyer for claims or Losses described above that arise solely from Buyer’s intentional misconduct. Seller shall not enter into any settlement with any third parties without Buyer’s prior written consent.
9. Intellectual Property; Ownership
(a) Buyer is, and shall be, the sole and exclusive owner of all right, title, and interest in and to the Deliverables, including all intellectual property rights therein. Seller agrees, and will cause its employees and Permitted Subcontractors to agree, that with respect to any Deliverables that may qualify as a “work made for hire” as defined in 17 U.S.C. §101, such Deliverables are hereby deemed a “work made for hire” for Buyer. To the extent that any of the Deliverables do not constitute a “work made for hire”, Seller hereby irrevocably assigns, and shall cause its employees and Permitted Subcontractors to irrevocably assign to Buyer, in each case without additional consideration, all right, title, and interest throughout the world in and to the Deliverables, including all intellectual property rights therein. The Seller shall cause its employees and Permitted Subcontractors to irrevocably waive, to the extent permitted by applicable law, any and all claims such employees and Permitted Subcontractors may now or hereafter have in any jurisdiction to so-called “moral rights” with respect to the Deliverables.
(b) Buyer is, and shall remain, the sole and exclusive owner of all right, title, and interest in and to Buyer’s materials and Confidential Information (as defined in Section 16, below) (“Buyer’s Materials”), including all intellectual property rights therein. Seller shall have no right or license to use any Buyer’s Materials except solely during the Term to the extent necessary to provide the Services to Buyer. All other rights in and to Buyer’s Materials are expressly reserved by Buyer.
(c) Buyer shall have all right, title, and interest, with respect to all Deliverables created by Seller in its performance under these Terms. Notwithstanding the foregoing, Seller shall have all right, title, and interest with respect to (i) materials created by Seller outside of the Services under these Terms, and (ii) concepts, application frameworks, techniques, know-how, practices, methodologies, processes, and procedures used and developed by Seller under these Terms for the purpose of performing the Services.
10. Intellectual Property; Indemnity
Seller shall, at its expense, defend, indemnify and hold harmless Buyer and any Indemnitee from and against any and all Losses arising out of or in connection with any claim that Buyer’s or Indemnitee’s use or enjoyment of the Services infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third-party. In no event shall Seller enter into any settlement with any third parties without Buyer’s or Indemnitee’s prior written consent.
Beginning on the date of this Purchase Order and throughout the Term and for one year thereafter, neither Party shall, directly or indirectly, in any manner solicit or induce for employment any person who performed any work under these Terms who is then in the employment of the other Party. If one Party employs, directly or indirectly, any persons employed by the other Party during such period, the employing Party will owe the other Party a onetime fee equal to 50% of the person’s total annual compensation. A general advertisement or notice of a job listing or opening or other similar general publication of a job search or availability to fill employment positions, including on the Internet, shall not be construed as a solicitation or inducement for the purposes of this Section, and the hiring of any such employees or independent contractor who freely responds thereto shall not be a breach of this Section.
Beginning on the date of this Purchase Order and throughout the Term and for one year thereafter, the Seller will not contract directly with any customer of Buyer in providing Services covered under this Purchase Order or for similar services. Nor will the Seller accept any solicitation from any customer of Buyer.
12. Compliance with Laws
Seller shall at all times comply with all applicable laws, regulations and ordinances. Seller shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under these Terms.
13. Default; Remedies.
Each of the following will constitute an event of “Default” by Seller: (a) failure to complete Services within the time or with the quality specified or guaranteed under these Terms; (b) failure to comply with any provisions of these Terms including breach of any warranty or guarantee; or (c) adjudication of Seller as bankrupt or Seller’s making a general assignment for benefit of creditors or appointment of a receiver on account of Seller’s insolvency. Upon Seller’s Default, Buyer may immediately, without prejudice to any other right or remedy it may have at law or in equity: (i) terminate the relationship with Seller or any pending Purchase Orders with Seller and obtain a return of all money already paid to Seller for Services, or, at its sole option and without liability to Seller, suspend Services and/or exclude Seller from Buyer’s premises until Seller furnishes satisfactory evidence that such Default has been cured; (ii) take possession of any of Buyer’s samples and materials held by Seller; (iii) finish Services or correct any non-conformity at Seller’s expense by whatever method Buyer deems expedient; or (iv) require Seller to correct or cure any non-conformity at Seller’s expense. In addition, Buyer reserves all other rights and remedies available to it at law or in equity. Seller agrees to cooperate with Buyer in any way reasonably required to complete Services. In such case, Buyer will pay for that portion of Services previously completed by Seller, subject to the terms and provisions above. In addition to its other remedies, Buyer will have a right of set-off and may withhold from time to time out of monies due Seller, amounts sufficient to fully compensate Buyer for any loss or damage resulting from any Default or breach by Seller. As an alternative, Buyer may, in its sole discretion, extend the delivery or completion schedule or waive any deficiencies in performance; provided, however, that no such waivers or extensions will be binding unless in writing and signed by Buyer’s authorized representative. Buyer shall have the right at any time to require adequate assurances of Seller’s performance. In any action or proceeding between the parties, the prevailing party shall be entitled to recover all of its reasonable attorneys’ fees, expenses and other costs of litigation. If Buyer terminates for any reason, Seller’s sole and exclusive remedy is payment for the Services accepted by Buyer prior to the termination.
14. Waiver; Remedies
No waiver by Buyer of any of the provisions of these Terms is effective unless explicitly set forth in writing and signed by Buyer. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Terms operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. Buyer’s remedies under these Terms are cumulative and in addition to any other remedies available to Buyer, whether at law, equity or otherwise.
15. Confidential Information
All non-public, confidential or proprietary information of Buyer, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Buyer to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with these Terms is confidential (“Confidential Information”), solely for the purpose of performing under these Terms and may not be disclosed or copied unless authorized in advance by Buyer in writing. Upon Buyer’s request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section, without the need for posting of any bond. This Section does not apply to information that is: (a) in the public domain through no fault of Seller or any person or entity for Seller is responsible; (b) known to Seller at the time of disclosure and which can be shown with demonstrative evidence; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
16. Force Majeure
Neither party shall be liable to the other for any delay or failure in performing its obligations under these Terms to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party’s fault or negligence, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable (“Force Majeure Event”). Force Majeure Events include, but are not limited to, acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemic, war, invasion, hostilities, terrorist acts, riots, strike, embargoes or industrial disturbances. Seller’s economic hardship or changes in market conditions are not considered Force Majeure Events. Seller shall use all diligent efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized and resume performance under these Terms. If a Force Majeure Event prevents Seller from carrying out its obligations under these Terms for a continuous period of more than 15 business days, Buyer may terminate immediately by giving written notice to Seller.
Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under these Terms without the prior written consent of Buyer, which Buyer may withhold in its sole and absolute discretion. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder. Buyer may at any time assign or transfer any or all of its rights or obligations under these Terms without Seller’s prior written consent to any affiliate or to any person acquiring all or substantially all of Buyer’s assets or pursuant to transfer that occurs by operation of law.
18. Relationship of the Parties
The relationship between the parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
19. Governing Law
(a) All matters arising out of or relating to these Terms are governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of California. No provision of these Terms may be construed against Buyer as the drafting party.
(b) Any legal suit, action or proceeding arising out of or relating to these Terms shall be instituted in the federal courts of the United States of America or the courts of the State of California in each case located in the City and County of Santa Clara, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
If any term or provision of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.
These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.