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SUPPLIER PURCHASE ORDER TERMS AND CONDITIONS
1. Order, Terms and Conditions. These Brocade Purchase Order Terms and Conditions (these “Terms”) apply to each order (whether captioned an “Order,” “Service Order,” “Purchase Order,” “PO” or other title) placed by Brocade Communications Systems, Inc. or its affiliate (“Brocade”) with a Brocade supplier (a “Supplier”) for goods or services unless Brocade and Supplier have entered into signed, written agreement that expressly supersedes thes Terms with respect to such order. Supplier’s acceptance of an order without notification of its objection to these Terms constitutes Supplier’s agreement to these Terms. Supplier’s acceptance occurs, without limitation of other means of acceptance, if it does not reject the order within 15 days of the order date, or it begins performance of the services or ships all or part of the goods, as applicable. Notwithstanding any prior communications, Brocade’s order is not an acceptance of any Supplier offer, or if the order is properly adjudicated to be an acceptance of a Supplier offer, the acceptance is conditioned on Supplier’s agreement to these Terms. The fees, schedules, specifications, warranties and representations regarding the goods or servies, and other transactions terms included in any Supplier proposal or communication in contemplation of the order are part of the order, as well as any transactions terms that are attached to or expressly referended in the order. If there is a conflict or inconsistency between the order and these Terms, these Terms control.
2. Inspection and Acceptance of Goods, Services. Brocade may inspect and test the goods at any time at the place of manufacture prior to shipment, or upon receipt, or at such time or place as it may choose, even if it has paid for the goods prior to inspection. Goods are also subject to final inspection and acceptance at Brocade's facility. Brocade may reject any services or deliverables created in conjunction with the services, in whole or in part, that do not conform to the specifications in the order to the reasonable satisfaction of Brocade. Payment for goods or services does not constitute acceptance. No acceptance by Brocade is effective with respect to latent defects. The process of inspection is not an acceptance of the goods or services and is not a waiver of any of Brocade's rights and remedies hereunder. Failure to inspect the goods or review performance of services is not: (i) acceptance of any defective or nonconforming goods or services; or (ii) waiver of any of Brocade's rights or remedies arising by virtue of any defect or nonconformance.
3. Payment. Supplier shall submit invoices via email to the address specified in the order, or by Brocade’s accounting department. Invoices must contain the following information: purchase order number, item number, description of items or services provided, quantities, unit price, extended totals, and Supplier’s packing slip number, in addition to any other information specified in these Terms. Supplier shall furnish Bills of Lading, express receipts, or other proof of delivery on Brocade’s request. Brocade may adjust payments of invoices for errors, shortages, defects in goods, nonconforming services, or other failure of Supplier to meet the requirements of the order. Brocade may at any time set off any amount owed to Supplier or any of its affiliated companies. Unless otherwise specified in the order, payments are due net thirty (30) days after, and any applicable early payment discount shall be calculated from, the last to occur of: (a) receipt of the goods by Brocade at the point of delivery specified in or pursuant to Section 9 (Transportation and Risk of Loss), or (b) acceptance of services provided, or (c) receipt by Brocade of Supplier's invoice acceptable to Brocade. Supplier shall state separately on its invoice any packing, storage, transportation or delivery charges prepaid or payable by Brocade. Supplier shall invoice Brocade promptly. Brocade is not obligated to pay any invoice for goods delivered or services rendered more than 30 days prior to the invoice date. Brocade may dispute any or all of an invoice by providing Supplier with written notification of the disputed amount and may withhold any and all disputed amounts. In the event that Brocde has issued payment for an invoice and subsequently disputes the invoiced amount, Supplier shall issue a credit for the disputed amount within 30 days of Brocade’s notice of the dispute.
4. Price. Supplier warrants that the price charged for the goods or services are no less favorable than those currently extended by Supplier to its other customers buying the same or similar goods or services in comparable quantities under similar circumstances. If, before delivery of the goods or performance of the services, Supplier reduces the prices for like goods or services to one or more of its customers for similar services or quantities of goods of like quality, then the prices specified in the order shall be likewise reduced and Supplier shall promptly grant, and Brocade shall receive, a corresponding price reduction or account credit for the amount of the price reduction for services or each unit of affected goods or services obtained from Supplier which is in Brocade's inventory on the effective date of the price reduction. No extra charges of any kind, including charges for packing or cartage, will be allowed unless specifically agreed to by Brocade in writing in advance. If price terms are omitted from the face of the order, the price of the goods shall be the lower of: (a) the price last quoted by Supplier; (b) the last price paid by Brocade to Supplier for like goods or services; or (c) the prevailing market price at the time of shipment or performance of services. Supplier may not increase the pricing applicable to any order after the order date
5. Sales, Withholding Taxes. Unless otherwise specified, the prices stated in the order include all applicable federal, state and local taxes, value added tax, service tax, transfer tax, excise tax, tariff, duty or any other similar tax imposed by any governmental authority (but excluding taxes based on Supplier’s income) (the “Sales Tax”). All such taxes shall be stated separately on Supplier’s invoice. Unless Brocade has provided Supplier with a valid state exemption resale certificate, or unless Brocade or the transaction is otherwise exempt, Brocade shall pay any Sales Tax that is properly charged and that is included on the invoice for the related goods or services, and Supplier shall pay all other taxes on or related to the goods and on the shipment thereof to Brocade. Supplier shall promptly remit to the appropriate taxing authority all Sales Tax collected from Brocade. If Brocade is required by law to withhold taxes on payments to Supplier, then Brocade will pay such amounts as are necessary such that the net payment to Supplier, after withholding tax, is in full satisfaction of the invoice. Supplier shall cooperate with Brocade’s reasonable and legal requests to minimize Sales Taxes.
6. Employment Taxes. Supplier is solely and exclusively liable for complying with, and making all payments under, all applicable state, federal and international laws with respect to its personnel, including laws governing self-employed individuals if applicable, such as laws related to payment of income taxes, social security, disability, and other contributions. Brocade shall not withhold or make payments for social security, unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance on Supplier’s behalf. Supplier shall provide proof of payment of appropriate taxes on fees paid to Supplier upon reasonably request of Brocade.
7. Changes. Brocade may at any time make changes in the delivery schedules, shipment methods, place of delivery, designs, quantities, and specifications for the goods or services ordered hereunder. Brocade may terminate the order in whole or in part at any time and for any reason upon written notice to Supplier and Supplier shall immediately stop work and terminate all orders and subcontracts to the extent that they relate to the terminated work upon receipt of such notice. There shall be no charges for canceling orders for standard items. If any change, as described in this Section, causes an increase or decrease in the cost of or the time required for performance of theorder, the sole and exclusive remedy for Supplier will be, as applicable: (i) the cost of unique work in process for cancelled items; (ii) the cost of paying claims to Supplier's vendors for such work directly allocable to items cancelled and which cannot be diverted to other customers of Supplier's vendors; or (iii) an equitable adjustment to the delivery schedule, and the order shall be modified in writing accordingly. No claim by Supplier for any adjustment hereunder shall be valid unless asserted within fifteen (15) days from date of receipt by Supplier of the notification of change, provided that such period may be extended upon the written approval of Brocade. However, nothing in this clause shall excuse Supplier from proceeding with the order as changed or amended. Supplier shall, whenever possible, place such work in process, as described in this Section, into inventory and sell it to other customers. In no event shall any claim for nonstandard items exceed the total price quoted for the items cancelled. Upon payment of Supplier's claim, Brocade shall be entitled to all work product and materials paid for. Brocade shall have the right to inspect Supplier's work in process records and to audit all relevant documents prior to paying Supplier's claim.
8. Termination for Default. Brocade may, by written notification, terminate the order in whole or part if Supplier fails (i) to make delivery of the goods or perform the services within the time specified herein, or within any extension thereof by written change order or amendment; (ii) to replace or correct defective goods in accordance with the specifications of the order; or (iii) to perform any of the other provisions of the order or so fails to make progress as to endanger performance in accordance with its terms. Brocade is sole judge under such circumstances. If the order is terminated pursuant to this clause, Brocade may procure, upon such terms and in such manner as Brocade may deem appropriate, goods or services similar or substantially similar to those terminated, and Supplier shall be liable to Brocade for any excess cost occasioned Brocade thereby, provided that Supplier shall continue the performance of the order to the extent not terminated. If the order is terminated pursuant to this Section, Brocade, in addition to other rights provided herein or by law, may require Supplier to transfer title and deliver to Brocade, in the manner and to the extent directed by Brocade: (i) any completed goods, and (ii) such partially completed goods and/or services (including but not limited to, materials, parts, tools, dies, jigs, fixtures, plans, drawings, products, software, source code, specifications, designs, blueprints, written scripts, videos, electronic media, customer lists, marketing, sales, financial or other research, reports or other business information, and contract rights) as Supplier has produced or acquired for the performance of this order, and Supplier shall, upon direction of Brocade, protect and preserve property as directed in this paragraph which is in the possession of Supplier. Payment for completed goods and services delivered to and accepted by Brocade shall be in an amount agreed upon by Supplier and Brocade (not to exceed the contract price). Supplier’s obligation hereunder to carry out Brocade’s directions as to delivery, protection, and preservation shall not be contingent upon prior agreement as to such amount.
9. Termination Without Cause/Termination For Convenience. In addition to Brocade’s right to terminate under this Section, Brocade shall also have the right to terminate the order, in whole or in part, at any time, without cause, by written notice to Supplier without incurring a penalty or additional costs. Upon any such termination, Supplier shall, to the extent and to the times specified by Brocade, stop all work on the order, place no further orders hereunder, terminate work under orders outstanding hereunder, and protect all property in which Brocade has or may acquire an interest. Supplier shall proceed promptly to comply with Brocade’s direction with respect to each of the foregoing without awaiting settlement or payment of this termination claim. Within twenty (20) days from such termination, Supplier may submit to Brocade its written claim for termination charges in the form prescribed by Brocade. Only Supplier’s actual costs incurred for goods shipped or services performed, that have been accepted and approved by Brocade and completed up to the effective date of termination shall be allowed for quantities terminated pursuant to this clause. Failure to submit a claim within such time shall constitute a waiver of all claims and a release of all Brocade’s liability arising out of such termination. Whenever possible, Supplier shall reasonably assess open orders, raw materials, work in process and subassemblies and place such items into inventory and sell it to other customers and correspondingly reduce its termination claim by the value of such usable items. In any event, Brocade shall have no obligation with respect to property lost, damaged, stolen or destroyed prior to the delivery to Brocade. Brocade reserves the right to verify claims hereunder, and Supplier shall make available to Brocade, upon its request, all relevant books and records for inspection and audit. If Supplier fails to afford Brocade its rights under this Section, Supplier shall be deemed to have relinquished any claim hereunder. This Section shall be applicable only to a termination for Brocade’s convenience, without any default on Supplier’s part, and shall not affect or impair any other rights of Brocade to terminate the Order upon Supplier’s default in the performance hereof.
10. Transportation and Risk of Loss. Unless otherwise specifically provided on the face of the Order, or otherwise agreed to in writing by Brocade and Supplier, deliveries must be made in the quantities and according to the time deadlines specified in the order. Unless Brocade provides otherwise in writing, the terms, choice of carrier and routing of shipment shall be F.O.B. destination basis to the delivery address designated by Brocade. Brocade may revise shipping instructions as to any unshipped goods. When shipment is F.O.B. place of destination, risk of loss shall remain with Supplier until delivery of the goods to Brocade at the named destination, regardless of the point of inspection, if any, and Supplier shall maintain insurance against loss in transit to such point, and Brocade shall not be required to assert any claims against common carriers. When shipment is F.O.B. place of shipment, risk of loss shall pass to Brocade upon delivery of the goods to the common carrier by Supplier but only if the goods are properly addressed, labeled and packaged as described herein, otherwise risk of loss will remain with the Supplier until delivery of the goods to Brocade at the named destination. Supplier shall bear all risk of loss as to properly rejected goods or services.
11. Over shipments. Brocade will pay only for quantities ordered. Over shipments will be held at Supplier’s risk and expense for a reasonable time awaiting shipping instructions. Return shipping charges for over-shipped quantities will be at Supplier’s expense.
12. Packing, Marketing and Shipment. Unless otherwise specified, Supplier shall pack, mark and ship all goods in compliance with all applicable transportation regulations, good commercial practice, and in a manner adequate to insure the safe arrival of the goods at the named destination. An itemized packing list showing the order number, supplier part number and quantity desired shall be included with each shipment and each container shall be marked to show the order number. Supplier shall mark all containers with necessary lifting, handling, and shipping information, and with purchase order numbers, date of shipment, and the names of consignee and consignor. No partial or complete delivery shall be made hereunder prior to the date or dates shown unless Brocade has given prior written consent.
13. Prompt Delivery of Conforming goods. Unless expressly noted on the face of the order, timely delivery of conforming goods in the full quantities specified herein is critical to Brocade. Any unauthorized quantity is subject to rejection and return at Supplier's expense. Supplier agrees to exert every reasonable effort, including overtime and premium shipment at Supplier's expense, to meet the promised delivery date, provided, however that failure of such efforts to achieve prompt delivery of conforming goods shall not relieve Supplier of liability for such failure. Supplier agrees to notify Brocade immediately if at any time it appears that the delivery schedule set forth herein may not be met. Such notification shall include the reasons for possible delays, steps being taken to remedy such problems and a proposed new delivery date.
14. Warranties. Supplier warrants that that it has good and marketable title to the goods to be furnished hereunder and the goods will be: (i) new, unless otherwise expressly stated in the order, (ii) in full compliance with the order terms and other Brocade specifications, blueprints, drawings and data or Supplier's samples, if any; (iii) fit for the use intended by Brocade; and (iv) free from any actual or claimed patent, copyright or trademark infringement. Supplier warrants that all services will be performed proficiently, in a manner consistent with the highest industry standards by competent, trained and fully-qualified personnel in a proper and workmanlike manner who are not citizens or nationals of any country that is a United States Department of State listed embargoed country. Supplier warrants that it shall not, by means of he goods or services, transmit to Brocade any virus, malware, spyware, ransomware, adware, or other code or information that is designed to interrupt the normal use of the goods or services or the systems on which any part of the goods or services are installed, or destroy or corrupt any data, make data unavailable, or covertly transmit information regarding Brocade or any user of the goods or services to Supplier or any third party. Supplier agrees that the warranties herein contained shall be in addition to any warranties implied in law expressly made by Supplier or other than hereunder; and survive acceptance and payment by Brocade. The goods, including all parts and components thereof, will be neither used nor reconditioned without the prior written consent of Brocade.
15. Origin of goods. At Brocade’s request, Supplier will provide written confirmation of the country of origin of any goods specified by this order.
16. Excuse of Brocade's Performance. Brocade's performance hereunder shall be excused if rendered impossible or "impractical". "Impractical" shall have the same general meaning as in Section 2615 of the California Commercial Code.
17. Waiver and Modification. Brocade’s failure to enforce at any time any of these Terms, to exercise any election or option provided herein, or to require at any time performance by Supplier of any of the provisions hereof, shall in no way be construed to be a waiver of such provisions, nor in any way to affect the validity of the order or any part thereof, or the right of Brocade thereafter to enforce each and every such provision. To be binding upon Brocade, any modification of the order must be in writing and signed by Brocade’s authorized representative.
18. Insolvency, Loss of Profits, Damages In the event of the institution of any proceedings by or against either party hereto, whether voluntary or involuntary, under bankruptcy, reorganization or insolvency laws, or in the event of the appointment of a receiver or trustee or a general assignment for the benefit of creditors of either party hereto, Brocade shall be entitled to terminate the order without incurring any costs or liability to Supplier. It is the intent of the parties, and the parties hereby agree, that in the event of any proceeding by or against Supplier under any law relating to bankruptcy, insolvency, or reorganization or relief of the debtors, all rights, licenses, covenants, privileges, releases, non-assertions and immunities granted under or pursuant to the order shall continue without termination, rejection or avoidance by virtue of or in the context of such proceeding. In support of the foregoing, all rights, licenses, covenants, privileges, releases, non-assertions and immunities granted under or pursuant to the order by Supplier are, and shall otherwise be deemed to be, for the purposes of Section 365(n) of 11 U.S.C. § 101 (et seq.) (the “US Bankruptcy Code”), licenses of rights to “intellectual property” as defined under Section 101(35A) of the US Bankruptcy Code. The parties further agree that in the event that any proceeding is instituted by or against Supplier under any law relating to bankruptcy, insolvency, or reorganization or relief of the debtors, the provisions of Section 365(n) of the US Bankruptcy Code will apply, and that Brocade may retain and may fully exercise all of its respective rights and elections under the US Bankruptcy Code. Upon written request from Brocade to Supplier or the bankruptcy trustee of Supplier’s election, in each case, to proceed under Section 365(n), Supplier or Supplier’s bankruptcy trustee shall comply in all respects with Section 365(n), including by not interfering with the rights or retention of rights of Brocade as provided herein. Supplier, and its successors in interest or permitted assigns, who shall be bound as Supplier, hereby grants to Brocade a fully paid-up, perpetual, royalty-free, irrevocable, worldwide license to any patents owned or controlled by Supplier, or to which Supplier has a right to license or enforce, that is transferred, assigned, or divested to a third party during the term of the order, effective immediately prior to such transfer, assignment, or divestiture, to make, have made, use, practice, import, offer to sell, sell, or otherwise dispose of any products or services by or on behalf of Brocade.
19. Subcontracting. No subcontracting shall be made by Supplier with any third party for furnishing any of the completed or substantially completed articles, spare parts, or work herein contracted for without Brocade’s prior written approval.
20. Compliance with Laws. Supplier shall comply with, and cause its subcontractors and any person under its control to comply with, all applicable state, local, federal, national and international laws, ordinances, regulations, rules, policies, administrative and judicial orders including but not limited to export controls and import regulations of the United States and other applicable jurisdictions, ethical and responsible standards of behavior, environmental protection, sustainable development and bribery. More specifically, Supplier represents and warrants that it will comply at all times with OSHA, the Equal Opportunity Clauses required by Executive Order 11246, the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, 38 U.S.C. 4212 (formerly 2012), Section 503 of the Rehabilitation Act of 1973, Executive Order 13201, Executive Order 13496, as amended, and implementing regulations at 41 CFR Chapter 60 (41 CFR 60-1.4, 60-1.7, 60-250.5, 60-300.5, and 60-741.5 respectively) and 29 CFR Part 471 Appendix A to Subpart A.
21. FAR/DFARS. Without limiting the generality of the foregoing, Supplier specifically represents and warrants that it shall comply with the following Federal Acquisition Regulation (“FAR”) and Department of Defense Federal Acquisition Regulation Supplement (“DFARS”) clauses, as in effect on the date of the order, to the extent applicable by their terms:
52.203-13, Contractor Code of Business Ethics and Conduct (APR 2010);
52.203-15, Whistleblower Protections Under the American Recovery and Reinvestment Act of 2009 (JUN 2010);
52.222-26, Equal Opportunity (MAR 2007);
52.222-35, Equal Opportunity for Veterans (SEP 2010);
52.222-36, Equal Opportunity for Workers with Disabilities (OCT 2010);
52.222-40, Notification of Employee Rights Under the National Labor Relations Act (DEC 2010);
52.222-50, Combating Trafficking in Persons (FEB 2009);
52.225-26, Contractors Performing Private Security Functions Outside the United States (Jul 2013);
52.232-40, Providing Accelerated Payments to Small Business Subcontractors (DEC 2013)
52.247-64, Preference for Privately Owned U.S.-Flag Commercial Vessels (FEB 2006);
252.223-7008, Prohibition of Hexavalent Chromium (JUN 2013); and
252.225-7009, Restriction on Acquisition of Certain Articles Containing Specialty Metals (JUN 2013).
22. Supplier Diversity.
(a) If Supplier is not designated as a “small business” and the Purchase order exceeds $650,000, Supplier additionally represents and warrants that it shall comply with the following FAR and DFARS clauses, as in effect on the date of the order, to the extent applicable by their terms (except as otherwise provided herein):
52.219-8 Utilization of Small Business Concerns. Paragraph (b) is substituted by the following: “(b) The Offeror hereby agrees to carry out this policy in the awarding of subcontracts to the fullest extent consistent with efficient contract performance. The Offeror further agrees to cooperate in any studies or surveys as may be conducted by the Supplier as may be necessary to determine the extent of the Offeror’s compliance with this clause.”)
(b) If Supplier is not designated as a “small business,” the order exceeds $650,000, and Supplier is selling non-commercial items, Supplier additionally represents and warrants that it shall comply with the following FAR and DFARS clauses, as in effect on the date of the order, to the extent applicable by their terms (except as otherwise provided herein):
52.219-9 SMALL BUSINESS SUBCONTRACTING PLAN Paragraph (c) is substituted by the following: “(c) The Offeror, upon request by the Brocade shall submit for review a subcontracting plan, where applicable, which addresses separately subcontracting with small business, veteran-owned small business, HUBZone small business concerns, small disadvantaged business, and women-owned small business concerns. Failure to submit a proper subcontracting plan shall make the Offeror ineligible for award of a purchase order.”)
23. Commercial Items. To the extent that any software and documentation are being provided under this Agreement, such items are "Commercial Items" as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212(b) and 48 C.F.R. 227.7202 as applicable, all U.S. Government end-users acquire the software and documentation with only those rights set forth herein. Any technical data provided that is not covered by the above provisions is deemed to be "technical data commercial items” pursuant to DFAR Section 252.227.7015(a). Any use, modification, reproduction, release, performance, display or disclosure of such technical data shall be governed by the terms of DFAR Section 252.227.7015(b).
24. Hazardous Materials. Supplier shall provide Brocade with all appropriate documentation with respect to any and all hazardous materials shipped pursuant to the order, and shall comply with all applicable laws affecting any such shipment.
25. Insurance. Supplier agrees to procure, maintain, and pay and shall require its subcontractors at all times to maintain insurance for comprehensive product liability, property damage and general liability including blanket contractual coverage insuring claims resulting from the indemnification of Brocade required by these Terms and Conditions and shall maintain proper worker’s compensation insurance covering all employees performing obligations under the order. Upon request of Brocade, Supplier shall furnish to Brocade certificates of insurance and any other documents for the purpose of verifying Supplier’s compliance with this Section. In addition, Supplier shall procure, maintain and pay for adequate Workers’ Compensation coverage, including employer’s liability covering its employees who may perform work on Brocade’s site under the order. Supplier agrees to provide Brocade a minimum of thirty (30) days’ written notice of cancellation in the event of cancellation or any material change in coverage.
26. Anti-Corruption Laws. In performance of the order, each party agrees to comply with the U.S. Foreign Corrupt Practices Act, the U.K. Anti-Bribery Law, and other applicable anti-corruption laws (the “Anti-Corruption Laws”). Each party further acknowledges that under the FCPA, each party is prohibited from making or authorizing a payment, gift, or promise or offer of payment (collectively “payment”) to any government official, political party or party official or candidate, or employee or official of any public international organization, or anyone acting in an official capacity on behalf of such person (collectively, “foreign official”) for the purpose of obtaining, retaining or directing business or influencing an act or decision of a foreign official in his or her official capacity to secure an improper advantage.
27. Confidential Information. Without Brocade's prior written authorization, Supplier shall not use Brocade’s Confidential Information for any purose other than providing the goods or services, and shall not disclose Brocade’s Confidential Inforamtion to any third party except its permitted subcontractors. Supplier shall ensure that its personnel and its permitted subcontractor’s personnel are aware of the terms of this confidentiality clause and are bound by written confidentiality oblgiations at least as stringent as those stated in these Terms. Supplier is responsible for an act or omission of any person to whom it has disclosed Brocade’s Confidential Information to the same extent as its own act or omission in breach of these terms. Upon termination of the order, Supplier shall return to Brocade all Confidential Information, or where return is not feasible, destroy the Confidential Informaton in the manner reasonably requested by Brocade. Supplier shall use reasonable safeguards to protect Brocade’s Confidential Information from unauthorized access, use and disclosure. Brocade’s “Confidential Information” means any proprietary information, technical data, trade secrets or know-how, all works of authorship, research, product plans, products, services, software, source code, developments, inventions, processes, formulas, technology, specifications, drawings designs, technical information, blueprints, drawings, engineering, hardware configuration information, written scripts, videos, electronic media, customer lists, marketing, sales, finances or other business information including but not limited to other documents, including copies, which include all such technical information and other non-technical data supplied to Supplier by Brocade or developed by Supplier as part of the services or the order process. If prior to the order date the parties entered into a stand-alone non-disclosure agreement (an “NDA”), then that NDA is incorporated herein by this reference and controls over any conflicting term of this Section, except that as to Personal Data, as defined below, these Terms control over any conflicting term of the NDA.
28. Protection of Personal Data. “Personal Data” means“ any information that can be used directly or indirectly, alone or in combination with other information, to identify an individual. Supplier represents and warrants that any Personal Data that it creates, collects or transfers to Brocade as part of the goods or services was created, collected or provided in compliance with all notice, consent and other requirements under applicable privacy policies and data protection laws and regulations, and that Brocade’s use and subsequent transfer of the Personal Data as contemplated by the nature of the goods or services will not violate any such policies, laws or regulations. As between Brocade and Supplier, Brocade owns and retains ownership of any Personal Data that Supplier collects, creates, transmits, receives, maintains or otherwise processes by means of Supplier’s provision of the goods or services. Brocade’s Personal Data is “Confidential Information” of Brocade, subject to the restrictions on use and disclosure in the Section captioned Confidential Information); provided, however, that notwithstanding anything in that Section to the contrary, Personal Data is Confidential Information even if all or part of the Personal Data is available publicly from some other source. Personal Data redmains subject to the obligations of this Section even if it is de-identified or anonymized. In addition to its obligations under the Section captioned Confidential Information, Supplier shall do each of the following with respect to Brocade’s Personal Data: (i) comply with applicable data protection laws and regulations; (ii) comply with Brocade’s policies and instructions for the protection of the Personal Data, and otherwise use reasonable and appropriate security safeguards at least as stringent as those required by the Model Clauses (as defined below) to prevent unauthorized access to, or unauthorized use, disclosure, corruption or destruction of, the Personal Data; (iii) make the Personal Data available to Brocade for purposes of Brocade’s compliance with legal requirements applicable to Brocade, notwithstanding any other provision of these Terms to the contrary; (iv) on Brocade’s request, fully disclose the details of its safeguards and permit access to its records, premises or systems by Brocade or a third party auditor as necessary for Brocade to comply with any legal requirements applicable to Brocade; (v) immediately notify Brocade on learning of any unauthorized access to, or unauthorized use, disclosure, corruption or destruction of, the Brocade Personal Data, and cooperate with Brocade’s reasonable requests to investigate and remediate such incident and provide appropriate response and remedy; and (vi) require each person to whom it discloses Personal Data to contractually commit to the obligations at least as stringent as those stated in these Terms. Without limiting the generality of the foregoing, if Supplier processes Personal Data of data subjects residing in the European Economic Area and Switzerland, the Parties agree that the Standard Contractual Clauses published by the EU Commission in its decision 2010/87/EU of February 5, 2010, OJ L 39/5 (Feb 12, 2010) and Standard Contractual Clauses approved by the Swiss Federal Data Protection and Information Commissioner (FDPIC) on 21st November 2013 (collectively, the “Model Clauses”) and any subsequent modifications or revisions to the Model Clauses by regulatory authorities are hereby incorporated and by reference made a part of these Terms. Unless otherwise expressly agreed in writing, Brocade is and shall remain the “controller” and “data importer,” and Supplier is and shall remain the “processor” under the Model Clauses. Supplier agrees to enter into any supplementary agreement with Brocade necessary to comply with applicable data protection legislation.
29. Assignments. Neither the order nor any interest therein, except the right to receive payment from Brocade, may be assigned by Supplier without the prior written consent of Brocade. No assignment of the right to receive payment shall affect Brocade's right of setoff against Supplier nor shall such assignment be binding on Brocade unless and until Brocade receives an executed copy of the assignment and each invoice to be paid to the assignee is clearly marked to show such assignment. These Terms and Conditions shall bind and inure to the benefit of Brocade's assigns and successors, including, without limitation, any entity with which or into which Brocade shall merge or consolidate.
30. Designs, Tools and Materials Supplied by Brocade. If the goods are to be produced by Supplier in accordance with designs, drawings or blueprints furnished by Brocade, or with the assistance of tools, machinery, or equipment furnished by Brocade, or are to incorporate or utilize parts and materials supplied to Supplier by Brocade, Supplier shall return the same to Brocade at the earlier of completion of the order or cancellation thereof unless otherwise expressly instructed by Brocade in writing. In addition, Supplier shall not use the same in the production of materials for any third party or for itself without Brocade's express prior written authorization. All such designs, drawings, blueprints, tools, machinery and equipment shall remain Brocade's property. Supplier shall use such property at its own risk and shall be responsible for all losses of or damage to said property while in Supplier's custody. Supplier shall maintain all such property in good condition and repair and Brocade makes no warranties or representations, express or implied, of any nature with respect to such property and expressly disclaims the warranties of merchantability and fitness for a particular purpose. Brocade retains title to said parts and materials, and Supplier agrees to pay Brocade for all such parts and materials lost, damaged or destroyed while not in Brocade's immediate custody. Supplier shall insure Brocade's property and be liable for any loss or damage while Brocade's property is in Supplier's possession or control, ordinary wear and tear excepted.
31. Indemnification. Supplier agrees to indemnify and hold harmless Brocade, and each of Brocade’s officers, directors, employees, affiliates, and customers, from and against any losses, liabilities, damages and claims arising from or related to: (i) any breach by Supplier of its obligations under this agreement, including, without limitation a breach of its obligations, representations or warranties under the Sections captioned Sales Tax Employment Tax, Warranties,Compliance with Laws, Confidentiality, Data Protection Anti-Corruption Laws, a breach of its representations or warranties, (ii) Supplier’s gross negligence or willful misconduct, and (iii) any personal injury, death or damage to tangible personal property resulting from Supplier’s negligence or willful misconduct, and all related costs, fees and expenses (including reasonable legal fees and disbursements as well as costs of investigation, litigation, settlement, judgment, interest and penalties) (“Losses”). Supplier shall pay or reimburse Brocade for all Losses as incurred. On Brocade’s request, Supplier shall assume the defense of a third party claim covered by this indemnification, provided that Supplier’s choice of counsel remains subject to Brocade’s approval and Supplier must keep Brocade apprised of the status of the matter and give consideration to Brocade’s reasonable suggestions. Supplier may not settle any indemnified claim without Brocade’s prior written approval.
32. Intellectual Property Infringement Claims. In addition to its indemnification obligations, if any third party alleges that Brocade’s use of the goods, services or related deliverables infringe or violates the third party’s rights in intellectual property, Supplier shall do one of the following at its expense: (i) procure for Brocade the right to use the goods, services or deliverables free from the claim, or (ii) modify or replace the good, services, or deliverables such that they are not the subject of the claim, but are equally suitable, compatible and functionally equivalent to the original goods, services or deliverables. If the Indemnifying Party is unable to complete any of the foregoing through the use of commercially reasonable efforts, then it shall refund to Brocade the purchase price paid for the goods, services or deliverables.
33. Intellectual Property License. Notwithstanding other conditions stated herein, if Supplier defaults in the performance of these Terms and Conditions , then Supplier, as partial consideration for the order and without further cost to Brocade, hereby grants to Brocade an irrevocable non-exclusive, royalty-free and license to use, sell, manufacturer, and caused to be manufactured or printed, any and all products embodying any and all intellectual property rights of the Supplier, including but not limited to inventions, discoveries and work of authorship made, conceived, or actually reduced to practice, in connection with the performance of the order.
34. Brocade’s Policies. Supplier shall at all times comply with Brocade’s policies as provided by Brocade or as otherwise set forth on Brocade’s web site.
35. Relationship Between the Parties. The relationship of the parties shall be that of independent contractors, and nothing in these Terms shall be construed to create a partnership, joint venture, or employer-employee relationship. Neither party is the agent of the other, and neither party is authorized to make any representations, contract, or commitment on behalf of the other. Supplier will choose the manner and means of performing services and will provide its own equipment, tools, and other materials at its own expense. The parties do not agree to any exclusivity in regards to the subject matter of this Agreement and each party is free to contract with third parties, including competitors of the other party, for transactions of the type covered by this Agreement in any market, worldwide. The use of the words “partner” or “partnership” in communications between the parties refers only to a business relationship, and does not create or reflect any legal partnership, joint venture, or other fiduciary or other special relationship between Supplier and Brocade.
36. Governing Law and Venue. The parties acknowledge and agree that the order is entered into in San Jose, California and shall in all respects be interpreted, enforced and governed by and under the Uniform Commercial Code and other laws of the State of California applicable to instruments, persons and transactions which have legal contacts and relationships solely with the State of California and the laws of the United States of America. The parties exclude in its entirety the application to the order of the United Nations Convention on Contracts for the International Sale of goods. THE PARTIES WAIVE THEIR RIGHT TO A TRIAL BY JURY IN CONNECTION WITH ANY ACTIVITY ARISING UNDER OR RELATED TO THESE TERMS OR THE ORDER.
37. Brocade Remedies. If Supplier breaches any of these Terms and Conditions, Brocade may exercise, singly or in any combination and in any order, all rights and remedies available to the Brocade at law or in equity, as well as any other rights provided for herein, including, without limitation, the right to, at Brocade's option: (a) In the case of defective or nonconforming goods or non-compliant services, require Supplier to promptly rework, repair or replace the goods or services or any component thereof, and upon Supplier's failure to or refusal to do so, to rework, repair or replace the same at Supplier's expense; (b) Refund the purchase price and cost of shipment to Brocade; (c) In the case of defective or nonconforming goods or non-compliant services, to reject any shipment or delivery or part thereof; (d) Cancel any outstanding deliveries under the order and treat the breach by Supplier as Supplier's repudiation of the order; (e) Hold Supplier liable for all delays or other failures to timely deliver conforming goods or compliant services in the quantities specified herein regardless of whether such delays or failures arise or result from actions or inactions of Supplier, third parties or from any other actual or proximate cause, whatever its nature and such liability shall include, without limitation, all loss of profits, consequential, incidental, special, indirect, contingent or similar damages and expenses (including reasonably attorneys’ fees) including losses sustained or anticipated to be sustained by Brocade as a result of Brocade's inability to meet its contractual obligations to third parties or to enter into contracts with third parties; (f) In the case where conforming goods or compliant services fail to arrive at the destination and within the time specified by the order, Brocade may, but need not, immediately purchase substitutes therefore and Supplier shall be liable for all damages and expenses resulting from such failure; and (g) Hold Supplier liable to Brocade for all loss of profits, consequential, incidental, special, indirect, contingent or similar damages and expenses (including reasonable attorneys' fees) actually or proximately arising from an breach of Supplier's warranties and representations. In addition, if there is a failure of significant number of units of any goods to meet Supplier’s warranties, then Supplier shall, at Brocade’s request, conduct a root cause analysis to determine the cause of the failure, and shall proactively remedy the failure at its expense as to all units of that good purchased by Brocade without waiting for units to actually fail.
38. Limitation of Remedies, Liability. IF BROCADE IS IN BREACH OF ANY OF THESE TERMS, SUPPLIER'S EXCLUSIVE REMEDY SHALL BE TO RECOVER THE GOODS OR, IN THE EVENT SAID GOODS HAVE BEEN SOLD BY BROCADE TO A THIRD PARTY, TO RECOVER THE PURCHASE PRICE FOR THE GOODS PROVIDED HEREIN LESS THE NET PROCEEDS, IF ANY, RECEIVED BY SUPPLIER FROM SUCH THIRD PARTY, OR AS RESPECTS SERVICES PERFORMED HEREUNDER, THE COST OF THE SERVICES PERFORMED. IN NO CASE WILL BROCADE BE LIABLE TO SUPPLIER FOR LOST PROFITS OR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES. BROCADE'S LIABILITY TO SUPPLIER IN ANY CASE OF DIRECT DAMAGES WILL BE LIMITED TO THE PRICE OF THE AFFECTED GOODS OR SERVICES PERFORMED AS DETERMINED BY THESE TERMS AND CONDITIONS.
39. Modifications. These Terms may not be modified except by a written agreement signed by Brocade and Supplier.
40. Future Purchases. Any Brocade statements regarding its future supply needs are made for information purposes only and do not constitute a forecast or commitment unless expressly agreed otherwise in a written agreement signed by a Brocade executive
41. Severability. In the event one or more of the terms of this Agreement are adjudicated invalid, illegal, or unenforceable, the adjudicating body may either interpret this Agreement as if such terms had not been included, or may reform such terms to the limited extent necessary to make them valid, legal or enforceable, consistent with the economic and legal incentives underlying the Agreement.
42. Press Releases and Public Announcements. Supplier shall not, without Brocade's prior written consent, make any news release or public announcement concerning the order or the goods or services which directly or indirectly identifies Brocade.
These Terms supersede and replace, in their entirety, and prior or contemporaneous agreement or understanding between the parties regarding their subject matter, written or oral.