Purchase Order Boilerplate/Standard Terms Examples

Discussion and workshop on PO terms best Practice, practical steps, and a review of 4 examples.

2014

Global CPO Purchasing Forum – San Francisco CA

William Kohnen

Bill Kohnen Examples Standard PO Terms May 2014

Page 1 of 9Rev. 03/2014STANDARD TERMS AND CONDITIONS OF PURCHASE – UNITED STATES1. TERMS OF AGREEMENTThe purchase order, together with these terms and conditions, and any attachments and exhibits,specifications, drawings, notes, instructions and other information, whether physically attached orincorporated by reference (collectively the “Purchase Order”), constitutes the entire and exclusiveagreement between the Cisco company (“Cisco”) and the supplier (the “Supplier”) identified in thePurchase Order. Cisco’s submission of the Purchase Order is conditioned on Supplier’s agreement thatany terms different from or in addition to the terms of the Purchase Order, whether communicated orallyor contained in any purchase order confirmation, invoice, acknowledgement, release, acceptance or otherwritten correspondence, irrespective of the timing, shall not form a part of the Purchase Order, even ifSupplier purports to condition its acceptance of the Purchase Order on Cisco’s agreement to suchdifferent or additional terms. Supplier’s electronic acceptance, acknowledgement of this Purchase Order,or commencement of performance constitutes Supplier’s acceptance of these terms and conditions. ThePurchase Order does not constitute a firm offer within the meaning of Section 2205 of the CaliforniaCommercial Code, and may be revoked at any time prior to acceptance. Notwithstanding the foregoing, ifa master agreement covering procurement of the Work described in the Purchase Order exists betweenSupplier and Cisco, the terms of such master agreement shall prevail over any inconsistent terms herein.2. DEFINITIONS2.1 “Deliverables” means the deliverables specified in the Purchase Order (and anyStatement of Work) to be delivered on or before the Delivery Date.2.2 “Delivery Date” means the date or dates specified in the Purchase Order by which theSupplier is required to deliver the Work.2.3 “Harmful Code” means any software intentionally designed to (i) disrupt, disable, harm, orimpede operation, or (ii) impair operation based on the lapse of time, including but not limited to viruses,worms, time bombs, time locks, drop-dead devices, access codes, security keys, back doors, or trap doordevices.2.4 “Intellectual Property Rights” means any and all tangible and intangible: (i) copyrights andother rights associated with works of authorship throughout the world, including but not limited tocopyrights, neighboring rights, moral rights, and mask works, and all derivative works thereof;(ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) patents, designs,


algorithms, utility models, and other industrial property rights, and all improvements thereto; (v) all otherintellectual and industrial property rights (of every kind and nature throughout the world and howeverdesignated) whether arising by operation of law, contract, license, or otherwise; and (vi) all registrations,applications, renewals, extensions, continuations, divisions, or reissues thereof now or hereafter in force(including any rights in any of the foregoing).2.5 “Preexisting Materials” means any Intellectual Property Rights or tangible personalproperty of Supplier or Cisco created before the date of this Purchase Order or outside the scope of thisPurchase Order.2.6 “Products” means tangible goods specified in the Purchase Order to be delivered on orbefore the Delivery Date.Page 2 of 9Rev. 03/20142.7 “Services” means the services that Supplier is to perform for Cisco specified in thePurchase Order.2.8 “Statement of Work” or “SOW” means the document specifying, without limitation, thescope, objective, and time frame of the Work that Supplier will perform for Cisco.2.9 “Subcontractor” means a third party performing Work under an agreement (a“Subcontract”) with Supplier.2.10 “Supplier Personnel” means Supplier’s employees, consultants, agents, independentcontractors and Subcontractors.2.11 “Third Party Intellectual Property” means the Intellectual Property Rights of a third partywhich Supplier uses or incorporates into the Work.2.12 “Work” means the Deliverables, Products and Services specified in the Purchase Order,including any SOW.3. DELIVERY3.1 Time is of the essence in Supplier’s performance of its obligations under Section 3 of thePurchase Order. Supplier will immediately notify Cisco if Supplier’s timely performance under thePurchase Order is delayed or is likely to be delayed. Cisco’s acceptance of Supplier’s notice will notconstitute Cisco’s waiver of any of Supplier’s obligations.3.2 If Supplier delivers Work after the Delivery Date, Cisco may reject such Work.3.3 Cisco will hold any Work rejected under this Purchase Order at Supplier’s risk andexpense, including storage charges, while awaiting Supplier’s returns shipping instructions. Supplier willbear all return shipping charges, including without limitation, insurance charges Cisco incurs on Supplier’sbehalf. Cisco may, in its sole discretion, destroy or sell at a public or private sale any rejected Work forwhich Cisco does not receive return shipping instructions within a reasonable time, and apply theproceeds, if any, first toward any storage charges.3.4 Supplier will preserve, pack, package and handle the Deliverables and Products so as toprotect the Deliverables and Products from loss or damage and in accordance with best commercialpractices in the absence of any specifications Cisco may provide. Without limiting the foregoing, Suppliershall observe the requirements of any local laws and regulations relating to hazardous work, including,


without limitation, with respect to its accompanying information, packing, labeling, reporting, carriage anddisposal.3.5 Supplier will include with each delivery of Products a packing list identifying the PurchaseOrder number, the Cisco part number for each of the Products (if applicable), a description and thequantity of each of the Products, and the date of shipment.3.6 Unless Cisco expressly instructs otherwise, Supplier will deliver all Work to Cisco’s plantat the address set forth in the Purchase Order. Seller assumes responsibility for all shipping and deliverycharges including, without limitation, customs, duties, costs, taxes and insurance. Risk of loss for theDeliverables and Products does not pass to Cisco until acceptance in accordance with Section 6.4. PRICE AND PAYMENT4.1 Unless otherwise specified in the Purchase Order, the price for the Work includes alltaxes and other charges such as shipping and delivery charges, duties, customs, tariffs, imposts andgovernment-imposed surcharges. Supplier will, at Cisco’s request, break-out from the price all suchPage 3 of 9Rev. 03/2014taxes and other charges, in its invoices. Supplier shall use its best efforts to assist Cisco in all legalefforts to minimize the taxes resulting from the performance of this Purchase Order.4.2 Cisco will pay Supplier the price in accordance with the payment terms set forth in thePurchase Order following the later of: (i) the Delivery Date; (ii) the date of Cisco’s acceptance of all of theWork; or (iii) Cisco’s receipt of a properly prepared invoice. A properly prepared invoice must include thePurchase Order number and, if required in the Purchase Order, Supplier’s certification of conformance ofthe Work to the requirements. Payment will be in the currency of the country in which the Cisco entity oraffiliate identified in the Purchase Order is located, and if the price set forth in the Purchase Order is notin the local currency, then Cisco will determine the local currency equivalent of the price as of date ofpayment. Cisco may, at any time, set-off any amounts Supplier owes Cisco against any amounts Ciscoowes to Supplier or any of its affiliated companies.5. OWNERSHIP AND LICENSE5.1 Unless otherwise specified in a SOW and except as provided in Section 5.2, Cisco is thesole and exclusive owner of all Deliverables and Supplier hereby irrevocably assigns and transfers toCisco all of its worldwide right and title to, and interest in, the Deliverables, including all associatedIntellectual Property Rights.5.2 Unless otherwise specified in a SOW, each party owns all right, title, and interest in andto any of its Preexisting Materials. Supplier hereby grants Cisco a perpetual, irrevocable, worldwide,transferable, royalty-free, nonexclusive license, with the right to sublicense and authorize the granting ofsublicenses, to use and reproduce Supplier's Preexisting Materials in the Deliverables to the extent


necessary for Cisco’s exercise and exploitation of its rights in the Deliverables.5.3 Unless otherwise specified in an SOW, Supplier will obtain and assign to Cisco a nonexclusive,royalty-free, worldwide, perpetual, irrevocable, transferable, sub-licensable license to use allThird Party Intellectual Property Rights incorporated into, required to use, or delivered with the Work.Supplier will deliver copies of the above releases and licenses to Cisco upon Cisco’s request.6. INSPECTION AND ACCEPTANCECisco may reject any or all of the Work which does not conform to the applicable requirements within 10business days of Supplier’s delivery of the Work. At Cisco’s option, Cisco may (i) return the nonconformingWork to Supplier for a refund or credit; (ii) requires Supplier to replace the non-conformingWork; or (iii) repair the non-conforming Work so that it meets the requirements. As an alternative to (i)through (iii), Cisco may accept the non-conforming Work conditioned on Supplier providing a refund orcredit in an amount Cisco reasonably determines to represent the diminished value of the non-conformingWork. Cisco’s payment to Supplier for Work prior to Cisco’s timely rejection of such Work as nonconformingwill not be deemed as acceptance by Cisco.7. CHANGES7.1 As used in this Section 7, “Change” means a change Cisco directs or causes within thegeneral scope of this Agreement, the applicable SOW or both.7.2 Cisco, by written order (“Change Order”), may make Changes in accordance with thisSection 7.7.3 If Supplier asserts that Cisco has directed or caused a Change to the cost of or time forperformance for which Cisco has not issued a Change Order, Supplier will promptly notify Cisco in writingof the Change, providing (i) a description of the action or inaction asserted to have caused the Change;(ii) an estimate of the equitable adjustment that would be required for Supplier to perform the ChangedWork; and (iii) a date no less than 30 days from the date of notice by which Cisco must respond toPage 4 of 9Rev. 03/2014Supplier’s notice so that Supplier may proceed with the Work unchanged. Cisco will evaluate Supplier’snotice of Change in good faith, and if Cisco agrees that it has made a constructive change, Cisco willissue a Change Order to Supplier.7.4 Supplier shall, as promptly as practicable, after giving the notice of the Change, or within10 days of receiving a Change Order, submit a request for equitable adjustment specifying theadjustment in the price or time for performance resulting from the Change.7.5 The parties shall negotiate an amendment to the applicable SOW to incorporate aChange Order providing for an equitable adjustment to the price, time for performance, or both.7.6 Supplier will proceed with the Changed Work as directed, notwithstanding that the partieshave not negotiated the amendment to this Agreement or the applicable SOW to incorporate theequitable adjustment.8. REPRESENTATIONS AND WARRANTIES


8.1 Supplier represents and warrants that:(i) it has the full power to enter into the Purchase Order and to perform itsobligations under the Purchase Order;(ii) it has the right and unrestricted ability to assign the Work to Cisco including,without limitation, the right to assign any Work performed by Supplier Personneland Subcontractors;(iii) the Work, and Cisco’s use of the Work, do not and will not infringe upon anythird party’s Intellectual Property Rights, right of publicity or privacy, or any otherproprietary rights, whether contractual, statutory or common law;(iv) Supplier will not disclose to Cisco, bring onto Cisco's premises, or induce Ciscoto use any confidential or proprietary information that belongs to anyone otherthan Cisco or Supplier which is not covered by a non-disclosure agreementbetween Cisco and Supplier;(v) Software supplied by Supplier does not contain any Harmful Code;(vi) Supplier’s Work conforms to Cisco’s specifications, Supplier’s quotation orproposal, and Supplier’s brochures or catalogs, and if none of the foregoing isapplicable, then such Work is suitable for the intended use;(vii) in performing its obligations under this Purchase Order it will apply the Code ofEthics found at:http://www.cisco.com/web/about/ac50/ac142/supplier/about_cisco_become_a_cisco_supplier.html;(viii) except to the extent Supplier is providing: (A) Products only; (B) Services froma Supplier location; or (C) Services in relation to marketing, educational, or asales related event at a third party site, they have read and comply with theCisco Supplier Environmental Health and Safety Requirements locatedat:http://www.cisco.com/web/about/ac50/ac142/supplier/about_cisco_become_a_cisco_supplier.html;(ix) it will not use or disclose any information that may identify an individual("Personal Data") that is processed for or on behalf of Cisco, except to the extentnecessary to perform under this Purchase Order;(x) only to the extent that Supplier actually processes Personal Data it will: (A)implement and maintain appropriate technical and organizational measures andother protections for Personal Data (including, without limitation, not loading anyPersonal Data provided to Supplier on (a) any laptop computers or (b) anyportable storage media that can be removed from Supplier's premises unlesseach case (i) such data has been encrypted and (ii) such data is loaded ontoportable storage media solely for the purpose of moving such data to off-sitestorage), (B) report to Cisco any breaches of security of Personal DataPage 5 of 9Rev. 03/2014immediately after discovery (“Security Incident”), (C) cooperate fully with Cisco ininvestigating any Security Incidents , (D) cooperate fully with Cisco's requests foraccess to, correction of, and destruction of Personal Data in Supplier'spossession, (E) comply with all instructions or other requirements provided orissued by Cisco from time to time relating to Personal Data, and (F) permit Ciscoand/or its duly authorized representatives, on reasonable prior notice, to inspectand audit Supplier’s business premises and computer systems to enable Ciscoto verify that Supplier is in full compliance with its processing obligations underthis Purchase Order;(xi) it will not transfer Personal Data across any country border unless it is (a) strictlyunavoidable for the proper performance under this Purchase Order, and (b)notified to Cisco in writing prior to any such transfer. Upon Cisco’s request,Supplier shall enter into such other arrangements with Cisco as Cisco considersappropriate (e.g. the EU Model Clauses) in order to ensure that Supplier’stransfers are lawful.(xii) it will not provide Cisco with Personal Data of any third party or its own


employees. Notwithstanding the foregoing, if Supplier does provide Cisco withany Personal Data, Supplier represents and warrants that it has obtained thenecessary consent to provide that Personal Data to Cisco and to allow Cisco touse, disclose, and transmit such Personal Data on a worldwide basis amongCisco and its affiliates in connection with this Purchase Order; and(xiii) no Products contain or include components (a) containing PCB’ (polychlorinatedbiphenyls) chemical substances, (b) manufactured using a cadmium platingprocess or contain a chemical substance or mixture that is or becomes subjectto a reporting requirement under Section 8(e) of the Toxic Substances ControlAct, 15 U.S.C. Section 2607(e), as in effect at time of shipment.8.2 Cisco warrants and represents to Supplier that it has the full power to enter into thePurchase Order and to perform its obligations under the Purchase Order.8.3 TO THE EXTENT ALLOWED BY APPLICABLE LAW, NO OTHER WARRANTIES AREMADE, EITHER EXPRESSED OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OFMERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.9. ASSIGNMENT AND SUBCONTRACTING9.1 Supplier may not assign any of its rights or delegate any of its obligations under thePurchase Order without Cisco’s prior written consent, which Cisco will not unreasonably withhold. Ciscomay, at its option, void any attempted assignment or delegation undertaken without Cisco's prior writtenconsent.9.2 Supplier may not subcontract any of its rights or obligations under the Purchase Orderwithout Cisco’s prior written consent. If Cisco consents to the use of a Subcontractor, Supplier will:(i) guarantee and will remain liable for the performance of all subcontracted obligations; (ii) indemnifyCisco for all damages and costs of any kind, subject to the limitations in Section 12 (Indemnification),incurred by Cisco or any third party and caused by the acts and omissions of Supplier’s Subcontractors’and (iii) make all payments to its Subcontractors. If Supplier fails to timely pay a Subcontractor for workperformed, Cisco will have the right, but not the obligation, to pay the Subcontractor and offset anyamount due to Supplier by any amount paid to the Subcontractor. Supplier will defend, indemnify andhold Cisco harmless for all damages and costs of any kind, without limitation, incurred by Cisco andcaused by Supplier’s failure to pay a Subcontractor.9.3 To the extent allowed by applicable law, no person who is not a party to Purchase Ordershall be entitled to enforce or take the benefit of any of its terms whether as a result of applicablelegislation, custom or otherwise.Page 6 of 9Rev. 03/201410. TERM AND TERMINATION10.1 The Purchase Order will remain in effect with respect to any SOW already issued prior toexpiration of the term of the Purchase Order until such SOW is either terminated or the Work iscompleted and accepted.10.2 Cisco may terminate this Purchase Order, any SOW, or both at any time, for no reason orfor any reason, upon 15 days written notice to Supplier. Upon receipt of notice of such termination,


Supplier will inform Cisco of the extent to which it has completed performance as of the date of the notice,and Supplier will collect and deliver to Cisco whatever Work then exists. Cisco will pay Supplier for allWork performed and accepted through the effective date of the termination, provided that Cisco will notbe obligated to pay any more than the payment that would have become due had Supplier completed andCisco had accepted the Work. Cisco will have no further payment obligation in connection with anytermination.10.3 Either party may terminate the Purchase Order, any SOW or both, immediately bydelivering written notice to the other party upon the occurrence of any of the following events: (i) areceiver is appointed for either party or its property; (ii) either makes a general assignment for the benefitof its creditors; (iii) either party commences, or has commenced against it, proceedings under anybankruptcy, insolvency or debtor's relief law, if such proceedings are not dismissed within 60 days; or (iv)either party is liquidating, dissolving, or ceasing to do business in the ordinary course.10.4 Cisco may immediately terminate the Purchase Order upon written notice to Supplier ifthere is a change in ownership representing 20 percent or more of the equity ownership of Supplier.10.5 Either party may terminate this Purchase Order, any SOW or both, immediately bydelivering written notice to the other party for any material breach not cured within 30 days of receipt ofnotice of the breach. Cisco shall have no further payment obligation to Supplier under any terminatedSOW if Cisco terminates the SOW under this Section 10.5.10.6 Any obligations or duties which, by their nature, extend beyond the expiration ortermination of the Purchase Order shall survive the expiration or termination of the Purchase Order.11. CONFIDENTIAL INFORMATION AND PUBLICITY11.1 If Cisco and Supplier have entered into a Non-Disclosure Agreement (“NDA”) whichcovers disclosure of confidential information under the Purchase Order, and if the term of the NDAexpires before the expiration or termination of the Purchase Order, then the term of the NDA shall beautomatically extended to match the term of the Purchase Order.11.2 The parties shall treat the terms, conditions, and existence of the Purchase Order asConfidential Information as defined in the NDA.11.3 Supplier shall obtain Cisco’s written consent prior to any publication, presentation, publicannouncement, or press release concerning its relationship as a supplier to Cisco.12. INDEMNIFICATION12.1 As used in this Section 12, a “Claim” is any claim, demand, loss, damage, liability, cost orexpense (including professional fees and costs as incurred) for which one party (the “Indemnifying Party”)may be obligated to defend, indemnify and hold the other party (the “Indemnified Party”) harmless.12.2 Supplier shall defend, indemnify and hold Cisco harmless from and against any and allClaims as incurred, arising out of or in connection with any (i) act or omission of Supplier (including its


Page 7 of 9Rev. 03/2014Subcontractors) in the performance of the Work; or (ii) any infringement of a third party’s IntellectualProperty Rights or any other rights.12.3 Cisco shall indemnify and hold Supplier harmless from and against any and all Claims asincurred, arising out of or in connection with: (i) Supplier’s use of Cisco’s products or services inconnection with the Work; (ii) Supplier’s use of information or materials provided to Supplier by Cisco; or(iii) infringement a third party’s Intellectual Property Rights or any other rights resulting from Supplier’sadherence to Cisco’s written instructions.12.4 Each party will indemnify and hold the other party harmless from and against any and allClaims, as incurred, arising out of any negligent or willful acts or omissions of the Indemnifying Partywhich results in personal injury (including death) or damage to tangible property (not including lost ordamaged data).12.5 The Indemnified Party will provide the Indemnifying Party with prompt written notice ofthe Claim and permit the Indemnifying Party to control the defense, settlement, adjustment, orcompromise of any Claim. The Indemnified Party may employ counsel at its own expense to assist it withrespect to any Claim. The Indemnified Party will have no authority to settle any Claim on the IndemnifiedParty’s behalf.12.6 If a third party enjoins or interferes with Cisco’s use of any Work, then in addition toSupplier’s obligations under Section 12.2, Supplier will use its best efforts to (i) obtain any licensesnecessary to permit Cisco to continue to use the Work; (ii) replace or modify the Work as necessary topermit Cisco to continue to use of the Work; or if (i) and (ii) are not commercially reasonable, then (iii)promptly refund to Cisco the amount paid for any Work for which a third party enjoins or interferes withCisco’s use of the Work.12.7 Nothing in this Section shall limit any other remedy of the parties.13. LIABILITY13.1 NOTWITHSTANDING ANYTHING ELSE IN THE PURCHASE ORDER OROTHERWISE, CISCO WILL NOT BE LIABLE TO SUPPLIER WITH RESPECT TO THE SUBJECTMATTER OF THE PURCHASE ORDER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITYOR OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS IN THE AMOUNTCISCO PAID TO SUPPLIER IN THE SIX MONTHS PRECEDING THE EVENT OR CIRCUMSTANCEGIVING RISE TO SUCH LIABILITY.13.2 IN NO EVENT WILL CISCO BE LIABLE TO SUPPLIER FOR ANY INCIDENTAL,INDIRECT, SPECIAL, CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS ARISING OUT OF, OR INCONNECTION WITH, THE PURCHASE ORDER, WHETHER OR NOT CISCO WAS ADVISED OF THEPOSSIBILITY OF SUCH DAMAGE.13.3 THE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIALPURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. NOTHING IN THE PURCHASE ORDERLIMITS EITHER PARTY'S LIABILITY FOR BODILY INJURY OF A PERSON, DEATH, OR PHYSICALDAMAGE TO PROPERTY OR ANY LIABILITY WHICH CANNOT BE EXCLUDED UNDER APPLICABLE


LAW.14. INSURANCESupplier will secure and maintain insurance providing coverage for liabilities to third parties for bodilyinjury (personal injury) and damage to property in amounts sufficient to protect Cisco in the event of suchinjury or damage, and will be in compliance with any and all laws, regulations or orders addressing theliabilities of an employer to its employees for injuries and disease suffered in connection withPage 8 of 9Rev. 03/2014employment. Supplier further will maintain such additional types and limits of insurance as is customaryfor a company of similar size and similar operations to Supplier in the jurisdiction or jurisdictions in whichSupplier’s operations take place.15. COMPLIANCE WITH LAWSSupplier represents and warrants that it will comply with all applicable local and national laws andregulations pertaining to its performance of its obligations under this Purchase Order. In particular andwithout limitation, Supplier shall not act in any fashion or take any action that will render Cisco liable for aviolation of any applicable anti-bribery legislation (including without limitation, the U.S. Foreign CorruptPractices Act and the UK Bribery Act 2010), which prohibits the offering, giving or promising to offer orgive, or receiving, directly or indirectly, money or anything of value to any third party to assist it them orCisco in retaining or obtaining business or in performing the Work. Without limiting the foregoing, to theextent that Supplier is a US federal contractor or covered subcontractor as contemplated in accordancewith the applicable laws and regulations, then Supplier agrees that this Purchase Order will be subject tothe requirements of 41 CFR 60-1.4 and 29 CFR part 471, Appendix A to Subpart A, and the requirementsof 41 CFR 60-300.5(a) and 41 CFR 60-741.5(a), which are incorporated herein by reference. The lattertwo regulations prohibit discrimination against qualified individuals on the basis of protectedveteran status and disability and require affirmative action to employ and advance in employmentprotected veterans and qualified individuals with disabilities. Supplier’s failure to comply with thisprovision shall constitute a material breach of this Purchase Order.16. GOVERNING LAWThe Purchase Order will be construed in accordance with, and all disputes will be governed by, the lawsof the State of California, without regard to its conflict of laws rules. The parties specifically waiveapplication of the UN Convention on Contracts for the International Sale of Goods. Supplier irrevocablyconsents to the personal jurisdiction of the state and federal courts in and for Santa Clara County,


California, and irrevocably waives any claim it may have that any proceedings brought in such courtshave been brought in an inconvenient forum.17. GENERAL17.1 Any notice to be given under the Purchase Order will be in writing and addressed to theparty at the address stated in the front of the Purchase Order. Notices will be deemed given and effective(i) if personally delivered, upon delivery, (ii) if sent by an overnight service with tracking capabilities, uponreceipt; (iii) if sent by fax or electronic mail, at such time as the party which sent the notice receivesconfirmation of receipt by the applicable method of transmittal; or (iv) if sent by certified or registered mail,within five days of deposit in the mail.17.2 If there is a conflict between or among the Purchase Order and any documents attachedto and incorporated by reference, the conflict will be resolved as follows:17.2.1 A conflict between the terms of the Purchase Order and those set forth in anexhibit or hyperlink will be resolved in favor of the Purchase Order.17.2.2 A conflict between the terms of the Purchase Order and those set forth in anSOW will be resolved in favor of the SOW.17.2.3 A conflict between the terms of an exhibit or hyperlink and those set forth in anSOW will be resolved in favor of the SOW.17.3 If any court of competent jurisdiction holds that any provision of the Purchase Order isillegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining provisions of thePage 9 of 9Rev. 03/2014Purchase Order will not be affected or impaired, and all remaining terms of this Purchase Order remain infull force and effect, provided that this provision shall not be applied to defeat the intent of the parties.17.4 A party’s election not to insist on strict performance of any requirement of the PurchaseOrder will not operate or be construed to waive any future omission or breach, or any other provision ofthe Purchase Order.


CYPRESS PURCHASE ORDER TERMS AND CONDITIONS OF PURCHASE 1. ACCEPTANCE. The terms and conditions of the Purchase Order (“Order”) becomes the

exclusive and binding agreement between Cypress (“Buyer”) and Seller covering the purchase of the products or services herein when this order is acceptable by acknowledgement and/or commencement of performance by Seller. ADDITIONAL OR DIFFERENT TERMS PROPOSED BY SELLER WILL NOT APPLY UNLESS ACCEPTED IN WRITING BY BUYER. ACCEPTANCE OF THE PRODUCTS OR SERVICES DELIVERED UNDER THIS ORDER SHALL NOT CONSTITUTE ACCEPTANCE OF SELLER’S TERMS AND CONDITIONS. No change, modifications or revision of this Order shall be effective unless an authorized representative of Buyer signs Seller’s written changes.

2. PRICES. Seller warrants that the prices charged for product or services identified on the face hereof are not in excess of prices charged to other customers similar quantities and delivery requirements. If Seller decreases the price for products or services identified in this Order, Seller will automatically reduce the price of any Buyer’s unshipped product or service by a comparable percentage of the time of the price decrease.

3. INVOICES. Invoices shall be submitted to the address shown on the face of this purchase and shall include the following information: purchase order number, product number, description of products, sizes, quantities, unit prices, and extended totals, and any applicable taxes in addition to any other information specified elsewhere herein. Bill of Lading or express receipt shall accompany each invoice. Payment of invoice shall not constitute acceptance of product and shall subject to adjustment for errors, shortages, defect in the products or other failure of Seller to meet the requirements of the order. Buyer may at any time set off any amount owed by Buyer to Seller against any amount owed by Seller or any of its affiliated companies to Buyer.

4. TAXES AND EXPENSES. The prices set forth in this purchase order do not include any applicable Foreign, Federal, State and local taxes or miscellaneous charges such as duties, customs, tariffs, imports and surcharges. All such taxes and charges shall be itemized separately on Seller’s invoice.

5. OVERSHIPMENT. Buyer reserves the option to return at Seller’s expense any shipment of the products either in excess of the amount stated on the face of this order, or on advance of the agreed upon schedule. Such shipment will be held at Seller’s risk and expense including reasonable storage charges while awaiting shipping instructions. Return shipping charges for excess quantities will be at Seller’s expense. Material for which return shipping instructions are not received within a reasonable time, maybe destroyed or sold by Buyer at public or private sale and the proceeds, if any, applied toward storage charges.

6. PACKING AND SHIPMENT. Unless otherwise specified, when the price of this order is based on the weight of the ordered products, such price is to cover net weight of products ordered only and no charge will be allowed for boxing, crating, drayage, storage or the packing requirements or any allowance for damage in connection with foregoing. Unless otherwise specified, all products shall be packed packaged, marked, and otherwise prepared for shipment in a manner which is (i) in accordance with good commercial practice, (ii) acceptable to common carriers for shipment at the lowest rate


for the particular products and (iii) adequate to ensure safe arrival of the products at the named destination and for storage and protection against weather. Seller shall mark all containers with necessary lifting, handling and shipping information and also, purchase order numbers, date of shipment and the names of the consignee and consignor. An itemized packaging sheet must accompany each shipment unless otherwise specified and must be located on the outside of the first box or crate of the shipment. No partial or complete deliver shall be made hereunder prior to the dates shown unless Buyer has given prior when written consent. 7. WARRANTY. (a) Seller warrants that all products delivered hereunder, including all components and raw materials incorporated therein, as well as products corrected under the warranty, shall be free from defects of workmanship, materials and manufacture, shall comply with the requirements of this contracts, including compliance with any drawings or specifications incorporated herein to any samples furnished by Seller, and where design in Seller’s responsibility, be free from defects in design. Seller further warrants all products purchased hereunder shall be of merchantable quality and shall be fit and suitable for the purposes intended by Buyer. The foregoing warranties are in addition to all other warranties, whether expressed or implied, and shall survive any delivery, inspection, acceptance, or payment by Buyer. (b) If any products delivered hereunder do not meet the warranties specified herein or otherwise applicable, Buyer may at its election (i) require the Seller to promptly correct, at no cost to Buyer, or any defective or nonconforming products by repair or replacements at the location specified by Buyer, or (ii) return such defective or nonconforming products at Seller’s expense to the Seller, and recover from the Seller the order price and shipping costs thereof. If, after being requested by Buyer, the Seller fails to promptly replace or correct any defective product, Buyer (i) may by contact or otherwise replace or correct such products and charge to the Seller the cost occasioned thereby, or (ii) may, without further notice, terminate this order for default in accordance with the clause thereof entitled “Termination”, or (iii) may utilize the deficient product and require an appropriate reduction in price. The foregoing remedies are in addition to all other remedies at law or in equity or under this order, for damages or otherwise, and shall not be deemed to be exclusive. All warranties shall run to the Buyer and to its customers. (c) Buyer’s approval of the Seller’s products or design shall not relieve Seller of the warranties set forth in this clause, nor shall not waiver by Buyer of any drawing or specification requirement for one or more of the products constitute a waiver of such requirement for remaining products to be delivered hereunder unless so stated by Buyer in writing. The provisions of this clause shall not limit or affect the rights of Buyer under the clause hereof entitled “Inspection”. (d) Claims by Buyer under this warranty maybe exercised anytime within a minimum period of one year after final acceptance unless specifically agreed otherwise in writing.


8. INSPECTION. All products purchased hereunder shall be subject to inspection and test by Buyer to the extent practicable at all times and places during and after the period of manufacture and in the event, prior to final acceptance. If inspection or test is made by Buyer on Seller’s premises, Seller without additional charge, shall provide all reasonable facilities and assistance for the safety and convenience of Buyer’s inspectors. No inspection or test made prior to final acceptance shall relieve the Seller from responsibility for defects or under failure to meet the requirement of this order.

9. CHANGES. The Buyer may at any time, by a written order, and without notice to sureties or assignees, suspend performance hereunder. Increase or decrease ordered quantities, or make changes in any or more of the following (a) applicable drawings, designs or specifications; (b) method of shipment or packing, and/or (c) place of delivery. If any such change causes an increase or decrease in the cost of, or the time required for the performance of this order, n equitable adjustment shall be made in the order price or delivery schedule, or both, and he order shall be modified accordingly. No claim by the Seller or adjustment hereunder shall be valid unless asserted in writing accompanied by an estimate costs, within twenty (20) days from the receipt of the Seller of the notification of changes and, in any event, Seller must submit its final claim in writing with supporting documentation within the net succeeding twenty (20) day period. Failure of the Seller to either (a) assert a claim within twenty (20) days, or (b) submit a final claim within the next succeeding twenty (20) days as provided above, shall constitute an unconditional and absolute waiver by the Seller of any right to make a claim for adjustment. Buyer reserves the right to verify claims hereunder and Seller shall make available to Buyer, upon its request, all relevant books, records, inventories and facilities for its inspection and audit.

10. TERMINATION. (a) It is agreed and understood that time is of the essence under this order or any

extension thereof affected by any change order. Buyer may, by written notice, terminate this order in whole or in part if the Seller falls (i) to make delivery of the products or to perform the services within the time specified therein, or any extension thereof by written change order or amendment, or (ii) replace or correct defective products in accordance with the provision of those clauses hereof entitled “ Warranty” and “ inspection”, or (iii) to perform any of the provisions of this order or to so fail to make progress as to endanger performance in accordance with the terms hereof, including delivery schedules, or (iv) if Seller becomes insolvent, admits in writing its inability to pay its debts as they mature, files a voluntary petition in bankruptcy, makes an assignment for the benefit of creditors or if the petition of any bankruptcy laws is filed against it.

(b) In the event of the termination pursuant to his clause, Buyer may procure upon Such term and in such manner as Buyer may deem appropriate, products or services similar or substantially similar to those so terminated and Seller shall be liable to Buyer for any excess cost occasioned thereby, provided that in the event that Buyer elects to terminate only a portion of this order, then in such event Seller shall continue the performance of his order to the extent not terminated.

(c) If this order is terminated pursuant to paragraph (a) Buyer in addition to any rights provided herein, may require the Seller to transfer title and deliver to Buyer, in the manner, time and to the extent directed by Buyer, (i) any


completed products and (ii) such partially completed products and materials, parts, tools, dies, jigs, fixtures, plans, drawings, information, and contract rights as the Seller has produced or acquired for the performance of the terminated part and (iii) Seller shall grant Buyer a royalty-free, assignable, non-exclusive license to use and other license to use Seller designs, processes, drawings and technical data, substantially retailing to the quantity of the products terminated hereunder. Seller upon direction of Buyer, protect and preserve property encompassed in this paragraph in the possession of Seller. Payment for completed products delivered to and accepted by Buyer shall be in amount agreed upon by the Seller and Buyer, however, such amount shall not exceed the order price per unit and Seller’s obligation hereunder to carry out Buyer’s direction as to delivery protection and preservation shall not be contingent upon prior agreement as to

such amount. (d) failure of Buyer to enforce any right under this clause shall not deemed a waiver

of any right hereunder, The rights and remedies of the Buyer under this clause shall not be exclusive and are addition to any rights and remedies provided by law or under this order.

11. CANCELLATION. (a) Buyer may cancel order placed with the provisions of this purchase Order

Subject to the following restrictions : (i) Standard Product. Cancellation of the standard product (resellable in its original) without charge back requires notice to Seller thirty (30) days or more to the scheduled ship date. (ii) Nonstandard Product Or Custom Product. Cancellation of Nonstandard or Custom product without charge back or requires written notice to the Seller sixty (60) days or more prior to the scheduled ship date. (b) In the event cancellation notice requirements are not met, Seller shall immediately stop work. For Standard Product so cancelled, Buyer will be

liable for restocking charge equal to the 10 % of the Purchase price for the product cancelled. For Nonstandard Product, Buyer will be liable for all reasonable costs incurred or committed for raw materials and work in process that cannot be diverted to other sale or use by Seller. Seller agrees to divert raw materials, work in process and completed materials from canceled orders to other requirements wherever possible in order to minimize cancellation charges. Payment of cancellation charges shall be due within thirty (30) days of the date of receipt written cancellation from the Seller.

(c) Seller’s cancellation claims shall consist solely of the following: (i) For completed products accepted by Buyer but not yet paid for, an

amount determined by multiplying the number of such products by the unit price therefore as specified in this order, and

(ii) The total cost of work in process, not to exceed the average unit cost multiplied by the number of units in process, provided however, that such number of units in process shall not exceed that amount which has been previously placed on firm release by Buyer. (d) In no event shall Seller be entitled to incidental or consequential damages, anticipated or projected profits, costs of


preparing claims, attorney’s fees, costs of tooling or equipment or sales or agents commissions on the terminated product. (d) Buyer reserves the right to verify claims hereunder and Seller shall make available to Buyer upon its request, all relevant books, records, inventories and facilities for its inspection and audit. In the event Seller fails to reasonably afford Buyer its rights hereunder, the Seller shall be deemed to have relinquished any claim asserted under the provisions of this clause. 12. WAIVER. The failure of Buyer to enforce at any time any of the provisions of this order, or to

exercise any election or option provided herein, or to require at any time performance by the Seller of any of the provisions hereof, shall in no way constitute to be a waiver of such provisions, not in any way to affect the validity of this order or any part thereof, or the right of Buyer thereafter to enforce each and every such provision.

13. ENCUMBRANCES; INDEMNIFICATION. All products supplied must be free from claims of others with respect to royalties, patent rights and mechanics’ liens or other encumbrances or charges. Seller agrees to indemnify and hold harmless the Buyer against all claims demands, costs and actions for actual or alleged infringements or misappropriations of patent, copyright, trademark, trade secret, or other intellectual property rights in the use, sale or resale of said products.

14. COMPLIANCE WITH LAWS. (a) Seller warrants that no governmental law, rule or ordinance of any Country has been violated in the manufacture or sale of the products or in the performance of services covered by this order, and will defend and hold Buyer harmless from loss, cost or damage as a result of any such actual or alleged violation. Upon written request by Buyer, Seller agrees to execute and furnish a certification of compliance, which may be on Buyer’s form and which shall certify compliance with any applicable Foreign, Federal, State or Local Laws or Regulations. Reseller shall conduct its business in accordance with the applicable laws and customs of each country in the Territory. (b) Seller shall also comply with the applicable laws and requirements of the United States, including without limitation, the requirements of

(i) the United States Foreign Corrupt Practices Act, (ii) the United States Export Administration Act, 50 U.S.C.A. Section 2401 et seq. and the regulation

promulgated thereunder (including the Export Administration Regulations and the United States Anti-Boycott Regulations, 15 C.F.R. Section 768 et seq.),

(iii) the War Powers Act and other laws or Executive Order relating to control of exports or transfer of technology, in each case in their present form or as they may be amended in the future.

15. GRATUITIES. Seller warrants that it has not offered or given and will not offer or give to any employee, agent or representative of Buyer any gratuity with a view toward securing any business from Buyer or influencing such person with respect to the terms, conditions or performance of any contract with or order from Buyer. Any breach of this warranty shall be a material breach of each contract between Buyer and Seller. 16. NONDISCLOSURE OF CONFIDENTIAL MATTER AND PUBLICITY. Products purchased pursuant to Buyer’s specifications or drawings shall not be quoted for sale to others without the Buyer’s prior written authorization. Such specifications, drawings, samples, or other data furnished by the Buyer shall be treated as confidential information by the Seller, shall remain Buyer’s property and shall be promptly returned to Buyer upon


request. Any publicity regarding this order (pictures, descriptions or samples thereof) is prohibited except with Buyer’s prior written approval. 17. ASSIGNMENTS AND SUBCONTRACTS. Neither party shall assign, transfer or subcontract its rights or obligations under this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, neither party will require the other party's consent to assign this Agreement in its entirety (but not less than in its entirety) to any of its Affiliates or to any party who acquires substantially all of the assets of the assigning party to which this Agreement relates. Any prohibited assignment, transfer or subcontract shall be void. 18. BUYER-FURNISHED PROPERTY. All tools or other materials furnished by the Buyer for use in the performance of this order shall remain the property of the Buyer (or of the Government, as the case may be), shall be used by the Seller in the performance of this order only, in accordance with the requirements of the order relating to such use, and shall be returned to the Buyer when requested upon the completion or termination of the order to the extent not previously delivered to the Buyer. Seller agrees to exercise reasonable care in the safeguarding and preservation of all Buyer-furnished property and assumes all responsibility for loss, damage or destruction while such property is within its possession or control. 19. PATENT LICENSE. The Seller, as part consideration for this purchase order and without further cost to the Buyer, hereby grants and agrees to grant to the Buyer and to the extent requested by the Buyer, to the Government, an irrevocable, transferable, worldwide, non-exclusive, royalty-free right and license to import, have imported, use, sell, offer for sale and otherwise distribute and exploit products embodying any and all inventions and discoveries made, conceived or actually reduced to practice in connection with the performance of this purchase order. 20. FORCE MAJEURE. Neither party shall be deemed in default of this Agreement to the extent that any delay or failure in the performance of its obligations results from any cause beyond its reasonable control and without its fault or negligence, including, without limitation, acts of God, acts of civil or military authority, embargoes, strikes, work stoppages, war, riots, fires, explosions, delays by suppliers, shortages of parts or materials, power failures, or communication line interruptions. Upon any delay described in this section, the time for performance by the party affected by a Force Majeure event shall be extended for a period equal to the time lost by reason of the delay. 21. NOTICE. All notices required hereunder shall be in writing and shall be deemed to have been duly given if (i) delivered by hand; (ii) mailed by registered or certified mail; (iii) sent by air courier; or (iv) sent by cable, telex or facsimile, followed within twenty-four (24) hours by notification pursuant to (i), (ii) or (iii) above, in each case to the address first set forth below, or to such other address as a party may specify for itself by written notice hereunder. All such notices shall be effective upon receipt and addressed as follows:


To Buyer at: 198 Champion Court San Jose, CA 95134 Attn: Vice President Procurement

OR Gateway Business Park Special Export Processing Zone Bgy Javalera, Gen Trias Cavite City, Philippines

To Seller at: The address as appearing on the face side of this purchase order. 22. SEVERABILITY. If any of the provisions of this Agreement shall be or become invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the remaining provisions of this Agreement. Instead, this entire Agreement shall be construed as though not containing the particular invalid or unenforceable provision or provisions, and the rights and obligations of the parties shall be construed and enforced accordingly. 23. LIMITATION OF LIABILITY. Buyer’s liability for breach of this purchase order shall not exceed the purchase price of the products or services ordered herein giving rise to the liability. IN NO EVENT SHALL BUYER BE LIABLE TO THE OTHERPARTY OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES WHATSOEVER, WITHOUT REGARD TO CAUSE OR THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, DAMAGES INCURRED BY THE OTHER PARTY OR SUCH THIRD PARTY FOR LOSS OF BUSINESS PROFITS OR REVENUE, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS ORDER, EVEN IF BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 24. APPLICABLE LAW. This Agreement shall be governed by and construed under the laws of the State of California, without regard to conflict of law principles or the UN convention on contracts for the international sale of goods. The parties consent to personal and exclusive jurisdiction of and venue in the state and Federal courts within Santa Clara Country, California. 25. ARBITRATION. Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the UNCITRAL Arbitration Rules currently in force. The number of arbitrators shall be three; the place of arbitration shall be in the County of Santa Clara, California, or such other place in the United States as the parties may mutually agree; the appointing authority shall be the American Arbitration Association; and the language to be used in the arbitral proceedings shall be English. The remedies set forth in this Agreement shall not be exclusive, but shall be in addition to such other legal and equitable remedies as the arbitrators determine to be appropriate.


Lenovo standard purchase order terms and conditionsThis Purchase Order ("PO") is issued by Lenovo (Singapore) Pte. Ltd. ("Lenovo") or one of its affiliates to Supplier.Exclusive terms: This PO describes the exclusive terms and conditions under which Supplier will provide products or services to Lenovo provided, however, that additional terms and conditions may be attached by Lenovo to this PO, and the parties may also be governed by a written agreement referenced in this PO (e.g., a Lenovo Parts Procurement Agreement; or a Lenovo System Purchase Agreement). Such written agreements may refer to this PO as a Work Authorization. Unless Lenovo agrees in writing, Lenovo’s rights under this PO may not be waived or modified, and no other document or communications are binding on Lenovo, including the Supplier's proposal, quotation, order acknowledgment, or invoice. Supplier is authorized to provide products and services under this PO only if Supplier agrees to the foregoing statement of exclusive terms.Prices/taxes: If a price is not stated in this PO or otherwise agreed to by Lenovo in writing, the price will be Supplier's lowest prevailing market price. Supplier is responsible for and will pay all sales, use, and similar taxes. If Lenovo provides evidence of tax exemption or reduction, then Supplier will not invoice nor pay such exempt/reduced taxes unless the applicable taxing authority assesses such tax, at which time Supplier will invoice and Lenovo will pay any such due and owing tax.Terms of payment: Upon Lenovo’s request, Supplier will issue invoices electronically and also comply with any local country requirement for tangible invoice forms. Unless this PO states otherwise, payment will be due net sixty (60) days after Lenovo receives Supplier's valid invoice. Supplier’s invoice will list the quantity of products and/or services purchased, reference this PO number, and, if applicable, the Lenovo agreement under which the products and/or services are being purchased under.Acceptance: Payment will not be deemed acceptance by Lenovo. All products or services are subject to inspection, and may be accepted or rejected in accordance with the criteria specified in the relevant SOW or PO. Upon request from Lenovo or its customers, Supplier shall issue a refund, repair or replace any rejected products or re-perform any rejected services, as determined by Lenovo or its customers, without additional charge and in a timely manner.Termination: Lenovo may terminate this PO with or without cause at any time. If Lenovo terminates without cause, Lenovo will compensate Supplier for actual and reasonable expenses incurred for work in process before the termination, not to exceed the prices specified in this PO.Imports: Supplier is responsible for compliance with all requirements to import any products covered by this PO into any country and the payment of all associated duties, taxes and fees.Packages/transportation: Supplier will comply with all country of origin marking instructions, all instructions for exports to Lenovo, all packaging, labeling, and transportation routing requirements set out in this PO. The Instructions for Exports to Lenovo and Lenovo’s Shipping Transportation Guidelines are incorporated by reference. Supplier will not use premium transportation unless expressly authorized by Lenovo. Supplier will not include more than one daily shipment for one destination on one bill of lading, and Supplier will not declare a value or purchase additional insurance on F.O.B. Origin shipments to Lenovo.Late shipments: Time is of the essence. Lenovo requires timely delivery to build products to fill orders from customers. If Supplier fails to deliver on time, Lenovo may purchase replacements elsewhere and Supplier will be liable for any difference in price that Lenovo must pay, as well as any actual and reasonable out-of-pocket costs Lenovo incurs to obtain the replacement parts. Supplier will promptly notify Lenovo if it is ever unable to make timely delivery.Warrantees: Supplier warrants that: (i) it has the right to enter into this PO and it will comply, at its own expense, with any law (including environmental and anti-corruption laws) or other obligation that may affect its ability to perform under this PO; (ii) no claim, lien, or action exists or is threatened against Supplier that may affect Lenovo’s rights under this PO; (iii) products and services specified in this PO do not infringe any privacy, intellectual property, moral or other right of a third party; (iv) products specified in this PO are of merchantable quality, are free from defects in materials and design, and otherwise will conform to the warranties, specifications and requirements in this PO, including without limitation 41A7731 ("Baseline Environmental Requirements for Materials, Parts, and Products for Lenovo Hardware Products") and 41A7733 ("Lenovo RoHS Engineering Specification"); (v) products specified in this PO are


safe for their intended use; (vi) products specified in this PO do not contain harmful code, will not engage in electronic self-help, and are euro-ready to the extent that they may interact with monetary data (meaning they are capable of correctly processing monetary data in the euro denomination and euro currency formatting conventions, including the euro sign); (vii) the products are not made with ozone depleting substances (such as halons, chlorofluorocarbons, hydrochlorofluorocarbons, methyl chloroform and carbon tetrachloride); (viii) products are new and do not contain used or reconditioned parts; (ix) it will comply with all applicable data privacy laws and will otherwise protect information that may identify an individual (“Personal Data”), and will not use, disclose, or transfer across borders any Personal Data processed for Lenovo, except as necessary to perform under this PO, and will comply with Lenovo’s requests to access, correct, or destroy such Personal Data; (x) it understands and will comply fully with all applicable laws, including export and import laws and Supplier will (among other things) secure all necessary clearances, licenses, and exemptions, and it will make all required filings and disclosures relating to the transfer of technology, software, or commodities; (xi) Supplier will not export, directly or indirectly, any technology, software or commodity of U.S. origin or having U.S. content to countries (or nationals of those countries wherever located) listed in U.S. Export Administration Regulations, as modified from time to time, unless authorized by appropriate government license or regulations; (xii) Supplier shall obtain and maintain all relevant licenses and Product certifications for Lenovo and its subsidiaries to sell and for Lenovo and its customers to use the products worldwide, and Supplier shall pay all fees required; (xiii) Supplier shall maintain comprehensive general liability insurance sufficient to cover all claims that might arise from Supplier's activities under this PO; (xiv) Supplier was awarded this business because it is an expert fully competent in all aspects of providing the products and services under this PO, and Supplier will not deny any obligation to Lenovo on grounds that Lenovo recommended reviewed, or assisted with any aspect of this PO, and Supplier acknowledges Lenovo’s reliance upon Supplier’s expertise; (xv) if Supplier describes the product or service in its own marketing materials, then Supplier warrants such descriptions are true, and Lenovo and its customers may rely on such claims in creating their own marketing materials for the products and services; (xvi) Supplier maintains and fully implements documented quality and environmental management systems that meets ISO 9000:2000 and ISO 14001 standards, respectively, and both systems are accredited from an approved registrar. Supplier’s design, development, manufacture and support processes all comply with these ISO standards, and Supplier will maintain compliance as these standards evolve. Supplier will demonstrate compliance with these standards to Lenovo and third parties, and will provide copies of relevant paperwork, upon request; (xvii) Supplier shall verify that any encryption technologies are: (a) covered by a valid export license from the U.S. Department of Commerce Export Administration; handled only at locations and pursuant to control procedures approved by Lenovo; and (b) ship directly from the approved location only to approved and lawful destinations; (xviii) Supplier complies with all laws relating to security including the FAA emergency directive on security procedures dated August 9, 1996. Supplier represents that it shall not include any explosive, hazardous, incendiary and/or destructive materials in any products transported under this PO; and (xix) products do not include any open source code.Intellectual property and other indemnifications: Supplier grants Lenovo all rights and licenses necessary for Lenovo (including Lenovo's affiliates and customers), to use and sell the products or services specified in the PO and to exercise the rights granted under this PO. Supplier agrees to defend, hold harmless, and indemnify Lenovo, its affiliates and customers from any and all claims arising out of, or pertaining to, the purchase of Supplier products or services, and to reimburse Lenovo, its affiliates and customers for the actual expenses they incur defending and settling such claims, including any third party claim of intellectual property infringement. If an infringement claim is made, Supplier will, at its own expense: (i) obtain for Lenovo, its subsidiaries, affiliates and customers the rights granted under this PO; (ii) modify the products or services so they are non-infringing and remain in compliance with this PO; or (iii) replace the products or services with non-infringing ones that comply with this PO. Lenovo may return non-conforming products (including infringing products) and cancel non-conforming services for a full refund at Supplier's expense.Limitation of liability: To the extent permitted by local law, the cumulative liability of Lenovo, its parents, subsidiaries, affiliates, and other related legal entities shall not exceed the purchase price agreed to by Lenovo for the conforming products and services delivered under this PO as the maximum measure of Supplier’s actual damages, and Lenovo, its parents, subsidiaries, affiliates, and other related legal entities shall not be liable for any lost revenues, lost profits, incidental, indirect, consequential, special or punitive damages.


Assignment: Supplier may not assign its rights nor subcontract its duties without Lenovo's written consent. Any unauthorized assignment is void.Exchange of information: All information exchanged between the parties will be non confidential, unless covered by a separate written confidentiality agreement between the parties. Supplier will obtain agreement from its employees and other entities allowing Lenovo to receive and use information Supplier may provide to Lenovo about these employees or entities if that information is governed by privacy laws or other non-disclosure requirements.Applicable laws: This PO is governed by the laws of New York, except: (i) in Australia, this PO is governed by the laws of the State or Territory in which the transaction occurs; (ii) in the United Kingdom, this PO is governed by the laws of England; (iii) in Bulgaria, Croatia, Czech Republic, Hungary, Poland, Romania, Slovakia and Slovenia (collectively, “Central Europe”), this PO is governed by the laws of Austria; (iv) in Estonia, Latvia, and Lithuania, Finnish law will apply; (v) in Canada, the laws of the Province of Ontario govern this PO; (vi) in the United States (including if any part of the transaction occurs within the United States) and Puerto Rico, the laws of the State of New York applicable to contracts executed in and performed entirely within that State govern this PO; and (vii) in the People’s Republic of China, the laws of mainland China will govern .General: Any reproduction of this PO by reliable means will be considered an original. The United Nations Convention on Contracts for the International Sale of Goods does not apply. The parties expressly waive any right to a jury trial regarding disputes related to this PO. To the extent permitted by local law, any claim related to this PO must be commenced no later than two (2) years from the date on which the cause of action arose. If Supplier is located in Canada, the parties have agreed to draft this agreement in English (“Les parties ont consenti à rédiger ce contrat en langue anglaise.”)The following Federal Acquisition Regulations (“FAR”) provisions are incorporated herein and made a part hereof: Utilization of Small Business Concerns (FAR 52.219-8); Small Business Subcontracting Plan (FAR 52.219-9); Equal Opportunity (FAR 52.222-26); Equal Opportunity for Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans (FAR 52.222-35); and Affirmative Action for Workers with Disabilities (FAR 52.222-36). In each provision, “Contractor” shall mean “Supplier” and “Contracting Officer” and “Government” shall mean “Lenovo or the U.S. Government” as necessary to fulfill the intent of this provision for the purposes of a subcontract under a U.S. Government prime contract issued to Lenovo. These provisions have the same force and effect as if they were stated in their full text


IBM standard purchase order terms and conditionsFebruary 25, 2014, to current dateAgreement documents: This Purchase Order (PO) and any attachments are the sole and exclusive agreement of Buyer and Supplier for the products and services in this PO, and no other document, including the Supplier’s proposal, quotation or acknowledgment form, will be part of this PO, unless specifically agreed to in writing by Buyer. Terms contained in the Supplier's response to, or acknowledgment or acceptance of, this PO, if any, that are additional to, or different from, the terms set forth herein (which terms would constitute a counter-offer by Supplier) are specifically rejected by Buyer. Buyer's offer to purchase as provided in this PO may not be modified by Supplier counter-offers. Notwithstanding the foregoing, if this PO is deemed an acceptance by Buyer of a Supplier offer or counter-offer, then such acceptance is expressly made conditional on Supplier's assent to all of the terms of this PO, including those that are additional to, or different from, the terms of Supplier's offer or counter-offer. The terms and conditions of this PO are subject to change without notice.Prices: If the PO does not include pricing, the price for the products or services provided hereunder will be Supplier's lowest prevailing market price for such products or services. Supplier is not entitled to reimbursement of expenses incurred in connection with fulfilling this PO, except as otherwise agreed in writing by Buyer.Taxes: Supplier is responsible for and will pay all applicable taxes, charges, fees, levies, or other assessments imposed or collected by any governmental entity (or political subdivision thereof) worldwide on sales of products or services, or sales, use, transfer, goods, and services or value added tax or any other duties or fees related to any payment by Buyer to Supplier for products and/or services provided to Buyer under or pursuant to this PO. If Buyer provides a direct pay certificate, certification of an exemption from tax, or reduced rate of tax imposed by an applicable taxing authority, then Supplier agrees not to invoice, nor pay, any such tax unless and until the applicable taxing authority assesses such tax, at which time Supplier shall invoice and Buyer agrees to pay any such tax that is legally owed. Buyer shall withhold taxes as required under applicable law on payments made to Supplier hereunder and shall be required to remit to Supplier only the net proceeds thereof.Terms of payment and acceptance: Unless otherwise mandated by local law, the terms of payment are net 60 days after receipt of Supplier's valid invoice or after receipt of the products or services, whichever is later. Payment will not be deemed acceptance of products or services, and such products or services will be subject to inspection, test, acceptance or rejection. At Buyer's option, Buyer may reject products or services that do not comply with Buyer's acceptance criteria for a refund, or require Supplier to repair or replace such products or re-perform such services without charge and in a timely manner. Buyer may return non-conforming products to Supplier at Supplier's expense.Termination: This PO may be terminated by Buyer with or without cause. If Buyer terminates without cause, Buyer will pay Supplier for Supplier's actual and reasonable expenses for work that has been satisfactorily completed as of the date of termination, but in no event will such payment exceed the agreed upon prices.Imports and exports: Supplier is the importer and exporter of record. Supplier will comply with all import and export laws and administrative requirements, including the payment of all associated duties, taxes and fees and all applicable laws, regulations, certifications and registrations associated with the import or export of Supplier’s products including but not limited to product safety, electromagnetic compatibility, telecommunications, product take-back/recycling and environmental requirements. Upon Buyer request, Supplier will promptly provide all information necessary to export and import products, including, as applicable, the Export Control Classification Numbers (ECCN) and subheadings or munitions list category number, certification and or test results relating to the products or services and any other and will notify Buyer in writing of any changes to the information provided by Supplier to export and import products. For products that will be imported by the Buyer, Supplier will provide promptly any requisite information, documentation, certification and/or test results for Buyer to comply with applicable import laws and administrative requirements.Packages/transportation: Supplier will comply with: (i) all country of origin marking instructions and all Buyer instructions for exports to Buyer; (ii) all packaging and labeling requirements set out in this PO; and


(iii) the transportation routing guidelines in this PO and pursuant to theShipping transportation guidelines. Default minimum requirements for (i) and (ii) are found underInstructions for cross-border shipments to IBM Corporation.Social and environmental management system: Supplier will comply with the Social and environmental management system supplier requirements.Risk of loss; delivery: Title and risk of loss remain with Supplier until products purchased under this PO have been delivered to Buyer at the location specified in the PO and accepted by Buyer. For Supplier's delivery of products, time is of the essence. If Supplier fails to deliver on time, Buyer may purchase replacements elsewhere, and Supplier will be liable for actual and reasonable costs and damages Buyer incurs. Supplier will promptly notify Buyer if it is unable to comply with the delivery date specified in this PO.Warranties: Supplier warrants that:

i. it has the right to enter into this PO;ii. it is knowledgeable with, and is and will remain in full compliance with (at its own expense) all laws,

rules and regulations that are, or may become, applicable in the provision of products and services hereunder including, without limitation,

a. labor and employment laws,b. applicable export and import laws, regulations, orders, and policies, including, but not limited to:

i. securing all necessary clearance requirements, export and import licenses and exemptions from, and making all proper filings with appropriate governmental bodies and/or disclosures relating to the release or transfer to non-U.S. nationals of technology and software in the U.S., or outside the U.S., release or transfer of technology and software having U.S. content or derived from U.S.-origin software or technology);

ii. being knowledgeable with applicable supply chain security recommendations issued by applicable governments and industry standards organizations and making best efforts to comply with such recommendations;

iii. agreeing not to transfer to IBM any hardware, software, technical data or services controlled under the U.S. International Traffic in Arms Regulations ("ITAR");

c. environmental laws, regulations or ordinances governing product environmental and energy characteristics, product content prohibitions, product end-of-life management/product take-back, and/or product safety related to Buyer's transport, import, export, distribution, sale and/or use of Supplier's products as, or as part of, a Buyer product;

d. anti-corruption laws; ande. laws and regulations regarding data privacy and data protection;

iii. its execution of this Agreement will not result in a breach of any other agreements or contracts to which it is a party;

iv. no claim, lien, or action exists or is threatened against Supplier that would interfere with Buyer's rights under this PO;

v. products and services do not infringe any privacy, publicity, reputation or intellectual property right of a third party;

vi. (A) it has disclosed to Buyer in writing the existence of any third party code, including without limitation open source code, that is included in or is provided in connection with the product(s) or services and (B) it and the products and services comply fully with all licensing agreements applicable to such third party or open source code;

vii. all authors have agreed not to assert their moral rights in the products and services, to the extent permitted by law;

viii. products are free from defects in design and free from defects in material and workmanship;ix. products are safe for use consistent with and will comply with the warranties, specifications and

requirements of this PO;x. products do not contain harmful code and Supplier will not engage in electronic self-help;xi. products do not contain (and products are not manufactured using) ozone depleting substances known

as halons, chlorofluorocarbons, hydro chlorofluorocarbons, methyl chloroform and carbon tetrachloride as defined by the Montreal Protocol and as specified by Buyer in writing;

xii. products are new and do not contain used or reconditioned parts unless Buyer agrees otherwise in writing;


xiii. it will not use, disclose, or transfer across borders any information that may identify an individual ("Personal Data") that is processed for or on behalf of Buyer, except to the extent necessary to perform under this PO;

xiv. it will not offer, promise or make, directly or indirectly any payment for the purpose of improperly influencing (or inducing anyone to influence) decisions or actions of any official of a government controlled entity or public international organization.

xv. (A) it will implement and maintain appropriate technical and organizational measures and other protections for Personal Data (including, without limitation, not loading any Personal Data provided to Supplier on (a) any laptop computers or (b) any portable storage media that can be removed from Supplier's premises unless each case (i) such data has been encrypted and (ii) such data is loaded onto portable storage media solely for the purpose of moving such data to off-site storage), (B) it will report to Buyer any breaches of security of Personal Data immediately after discovery (“Security Incident”), (C) it will cooperate fully with Buyer in investigating any Security Incidents, (D) it will cooperate fully with Buyer's requests for access to, correction of, and destruction of Personal Data in Supplier's possession, and (E) it will comply with all instructions or other requirements provided or issued by Buyer from time to time relating to Personal Data;

xvi. it will not export, directly or indirectly, any technology, software or commodities of U.S. origin or having U.S. content provided by Buyer or their direct product to any of the countries or to nationals of those countries, wherever located, listed in U.S. Export Administration Regulations, as modified from time to time, unless authorized by appropriate government license or regulations;

xvii. it will not, nor will it authorize or permit Supplier Personnel to, disclose, export or re-export any of Buyer’s information, or any process, or product that is produced under this PO, without prior notification and compliance with all applicable Federal, State and local laws, regulations and ordinances, including U.S. export control regulations.

Intellectual property: Supplier grants Buyer all rights and licenses necessary for Buyer and its affiliates to use, transfer, pass-through, and sell the products and services and to exercise the rights granted under this PO.Ownership of products: Except for products consisting of software (which is licensed as provided under Intellectual Property above), all work product developed by Supplier and provided to Buyer under this PO are and shall remain the personal property of Buyer.Indemnification: Supplier agrees to defend, hold harmless, and indemnify Buyer and its affiliates from any claim (including without limitation costs, expenses and attorneys fees) arising from (a) claims that any product infringes any intellectual property rights, (b) the failure of Supplier to comply with its warranties and obligations under this PO or (c) a Security Incident. If a claim of infringement is made, Supplier will, at its own expense, exercise the first of the following remedies that is practicable: (i) obtain for Buyer the rights granted under this PO; (ii) modify the product so it is non-infringing and in compliance with this PO; (iii) replace the product with non-infringing ones that comply with this PO; or (iv) accept the return or cancellation of the infringing product and refund any amount paid.Limitation of liability: To the extent permitted by local law, in no event will Buyer or its affiliates be liable for any lost revenues, lost profits, incidental, indirect, consequential, special or punitive damages. In no event shall Buyer’s liability to Supplier exceed the total amount of fees actually paid by Buyer to Supplier hereunder.Assignment: Supplier will not assign its rights or subcontract its duties without Buyer's written consent. Any unauthorized assignment is void.Exchange of information: All exchanges of information between the parties pursuant to this PO will be considered non-confidential. If the parties intend to exchange confidential information, such exchanges shall be made under a separate written confidentiality agreement. For any Personal Data relating to Supplier's personnel that Supplier provides to Buyer, Supplier will obtain the informed consent of such personnel to release the information to Buyer and to allow Buyer to use, disclose, and transmit such information on a worldwide basis among Buyer and its affiliates in connection with this PO.Right to audit: Buyer may, on reasonable notice to Supplier, audit Supplier's books, ledgers, supporting records/documentation and related procedures and controls, relating to any charges paid by Buyer in connection with this PO.Insurance: Supplier shall obtain and maintain all applicable and appropriate insurance, (including, without limitation, business, workers' compensation, auto, errors and omissions, professional and


commercial general and liability insurance) in an amount consistent with Supplier's industry practice. Each policy shall name Buyer as a loss payee or additional insured, as appropriate.Applicable laws: This PO is governed by the laws of the country where the Buyer is located, except: (i) in Australia, this PO will be governed by the laws of the State or Territory in which the transaction occurs; (ii) in the United Kingdom, this PO will be governed by the laws of England; (iii) in Bulgaria, Croatia, Czech Republic, Hungary, Poland, Romania, Slovakia and Slovenia, this PO will be governed by the laws of Austria; (iv) in Estonia, Latvia, and Lithuania, Finnish law will apply; (v) in Canada, the laws of the Province of Ontario govern this PO; and (vi) in the United States (including if any part of the transaction occurs within the United States), Puerto Rico, and People's Republic of China, the laws of the State of New York applicable to contracts executed in and performed entirely within that State govern this PO.General: Any reproduction of this PO by reliable means will be considered an original of this PO. The United Nations Convention on Contracts for the International Sale of Goods does not apply. The parties expressly waive any right to a jury trial regarding disputes related to this PO. Unless otherwise provided by local law without the possibility of contractual waiver or limitation, any legal or other action related to this PO must be commenced no later than two (2) years from the date on which the cause of action arose.No modification, amendment, supplement to, or waiver of this PO by Buyer shall be binding upon the parties unless made in writing duly signed by both parties and specifically referencing this PO. Buyer’s failure to exercise any right hereunder shall not operate as a waiver thereof.Both shrinkwrap and clickwrap licenses accompanying any product consisting of software and online Terms of Use or Terms of Service relating to services provided online are null and void, and the terms and conditions of this PO prevail.Any services performed by Supplier shall be performed as an independent contractor, and Supplier is solely liable for applicable payroll or income taxes.Supplier shall not use the name or trademarks of Buyer or its affiliates or refer to or identify Buyer or its affiliates in any marketing materials (including without limitation testimonials or customer listings) or press releases without the prior written consent of Buyer.Additional provisions relating to Federal and public sector:Compliance with laws unique to government contracts: For work performed under specific U.S. government procurement contracts the following provisions apply: 48 C.F.R. 52.222-26, Equal Opportunity (Apr. 1984); 48 C.F.R. 52.222-35, Affirmative Action for Special Disabled and Vietnam ERA Veterans (Apr. 1984) (If for $10,000 or more); 48 C.F.R. 52.222-36, Affirmative Actions for Handicapped Workers (Apr. 1984) (if in excess of $2,500); and 48 C.F.R. 52.222-37, Employment Reports on Special Disabled Veterans of the Vietnam Era (Jan. 1988) (If $10,000 or more). These provisions have the same force and effect as if they were stated in their full text. Supplier agrees that it and its employees who work under this PO will comply, and assist Buyer in complying with, the laws unique to performing on government contracts, including without limitation, the following statutes and regulations: 31 U.S.C. 1352, relating to the limitation on the use of appropriated funds to influence certain Federal contracts; 41 U.S.C. 51-58, Anti-Kickback Act of 1986; 41 U.S.C. 423, Procurement Integrity Act; and 48 C.F.R. Subpart 9.5, relating to conflicts of interest; and 29 CFR Part 471, including the posting of the employee notice prescribed at 29 CFR Part 471, Appendix A to Subpart A. Supplier also agrees not to offer or give gifts on behalf of Buyer to third parties, including without limitation, U.S. government employees and officials.Compliance with equal opportunity clauses: This contractor and subcontractor shall abide by the requirements of 41 CFR 60-300.5(a). This regulation prohibits discrimination against qualified protected veterans, and requires affirmative action by covered prime contractors and sub-contractors to employ and advance in employment qualified protected veterans. 41 CFR 300.5(d)This contractor and subcontractor shall abide by the requirements of CFR 60-741.5(a). This regulation prohibits discrimination against qualified individuals on the basis of disability, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified individuals with disabilities. 60-741.5(d)Notification of debarment/suspension: By acceptance of this PO either in writing or by performance, Supplier certifies that as of the date of issuance of this PO neither Supplier, nor any of Supplier’s principals, is debarred, suspended, or proposed for debarment by the Federal Government or any State Government. Further, Supplier shall provide immediate written notice to Buyer in the event that during the performance of this PO Supplier or any of Supplier’s principals is debarred, suspended, or proposed for debarment by the Federal Government or any State Government.


Conflicts of interest: In the performance of this PO, it is Supplier’s responsibility to avoid: (1) any actual or apparent conflict between Supplier’s duties or obligations to other parties, including the Federal Government, and such duties and obligations assumed under this PO and (2) disclosure of information which would, or would appear to, violate such duties and obligations to third parties. In the performance of this PO, Supplier shall not make or participate in any marketing calls or contacts with the Federal Government or others which might create the possibility or appearance of a conflict of interest or an actual conflict of interest. Supplier also agrees that, if subsequent to the issuance of this PO, Supplier finds that a conflict, or what may appear to be a conflict, develops because of a relationship created or intended to be created between Supplier or Supplier’s agents, or employees and any third party or with an agency or other representative of the Federal Government or any other Government, Supplier shall immediately notify Buyer, and Buyer shall have the right, at its sole discretion, to terminate this PO on notice. Upon exercise of such right of termination, Buyer’s only obligation to Supplier shall be to reimburse Supplier for proper services satisfactorily completed as of the date of termination.Additional warranties: Supplier warrants that:

i. any information it discloses to IBM does not violate any law, regulation or ordinance of any U.S. Federal, state or local governmental authority regarding the integrity of the procurement process and has not been obtained from any Government classified documents or other classified information sources;

ii. it is not now employed by the Federal or any other Government, and further, it is not consulting with any agency or other representative of the Federal Government, or with any other third party, on matters which conflict or appear to conflict with the subject matter of this PO;

iii. (A) no individual who is a former officer or employee of the U.S. Government shall be employed or compensated for services rendered under this PO within one year after conveying a benefit to Buyer in excess of $10 million within the meaning of the Procurement Integrity Act, 41 USC, 423, and its implementing regulations; (B) it shall pay no compensation hereunder to any covered U.S. Department of Defense official within the meaning of section 847 of the National Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181, unless that individual has first obtained a written ethics opinion from the appropriate DoD ethics counselor; and (C) it shall immediately, at Buyer’s request and sole discretion, remove any specified employee(s), subcontractor(s) and/or agent(s) of Suppliers from Buyer’s premises, and agree that they will not be reassigned to any Buyer premises under this PO;

iv. it will require that each individual working for Supplier hereunder obtains a copy of IBM’s Business Conduct Guidelines and Public Sector Guidelines for the United States (collectively, the “Guidelines”), and Supplier and Supplier’s employees working hereunder will review the Guidelines and assist IBM in complying with the Guidelines;

v. (A) neither Supplier, nor any of Supplier’s employees or others whom Supplier will employ (as authorized by Buyer), will make any communication with any employee of a Federal Agency, a Member of Congress or any employee of with the intent to influence or attempt to influence the award of contracts to Buyer; (B) it will not engage in lobbying for Buyer within the meaning of the Lobbying Disclosure Act of 1995, 2 U.S.C, 1601 e seq.; (C) it, and all of its employees or others engaged by Supplier are authorized by Buyer to perform services under this PO, are familiar with, and agree to comply with and assist Buyer in complying with, the following, (including any reporting obligations Buyer or Supplier may have relating to):

1. The Procurement Integrity Act, 41 U.S.C. 423 and Government implementing regulations (Federal Acquisition Regulations/FAR 3.104 et. Seq.);

2. Government regulations implementing organizational and consultant conflicts of interest, section 8141 of the 1989 Department of Defense Appropriation Act, Public law 100-463 (1988) and Conflict of Interest Policies Applicable to Consultants (FAR Subpart 9.5);

3. Limitations on the use of appropriated funds to influence certain federal contracting and financial transactions (the Byrd Amendment), 31 U.S.C. 1352 and Government implementing regulations (FAR Subpart 3.8);

4. The policies and procedures restricting contingent fee arrangements for soliciting or obtaining Government contracts, see 48 C.F.R. Subpart 3.4; and

5. The revolving-door restrictions set out in 18 U.S.C. Section 207 and its implementing regulations.

Purchase Order Boilerplate/Standard Terms Examples

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