I. Purpose
This Master Purchase Agreement (“Agreement”) sets forth the legally binding terms between the entity agreeing to (“Supplier”) and Gilbarco, Inc., (“Company”) (each a “Party” and collectively “Parties”). The Parties desire to enter into a framework agreement to set certain common terms and conditions to apply to the sales of goods and/or services (collectively “Product(s)”) from Supplier to Company. The Parties intend to agree upon certain Scope of Work documents (“SOWs”) to issue under this Agreement, each incorporating the terms set forth here and, where applicable, setting out supplemental details for the provisions of goods and/or services.
This Agreement may apply to sales to Company, or Company’s Affiliate, by Supplier. “Affiliate” of a company means a company or person that (a) directly or indirectly controls such company, (b) is under the same direct or indirect control as such company, (c) is directly or indirectly controlled by such company. For this definition, “control” shall mean having (i) at least 50% equity interest or (ii) the right or power to exercise the controlling influence over the management or policies, including the right, power, or other ability to elect a majority of the board of directors or other governing body. Supplier Affiliates’ sales may be accomplished by the same SOW process. Each such SOW shall form a separate agreement between Supplier and Company (or Company Affiliate).
Company and Supplier intend for this Agreement to be the exclusive manner in which Products are provided by Supplier to Company.
II. Deliverables
Supplier shall provide the Products according to the specifications and delivery schedule set forth in the applicable SOW. The current Products to be provided by the Supplier are set in the applicable SOW which reference these terms.
III. Pricing and Payment Terms
a. Prices. The prices for the Products (including the prices and fees for extended warranties and for out-of-warranty repairs) are as set out in the applicable SOW. Prices are exclusive of any applicable tax, duty, freight, insurance, shipping or similar additional costs, which shall in all instances be borne by Supplier.
b. Price Increases. Supplier may not increase the price of any of its Products except as expressly set forth in an applicable SOW, or as separately agreed to in writing by the Parties
IV. Delivery
a. Delivery. Services, including software and software-as-a-service products, shall be deemed delivered when Company is provided access to all agreed features of such services and/or software.
V. Warranty.
a. Performance Warranty for Products: For a period of ninety (90) days after the date of delivery of the Software (as defined below) and for the duration of a subscription for the Software (in each case, the “Warranty Period”), Supplier warrants that the Products, when used as permitted by Supplier and in accordance with the Documentation, will operate substantially as described in the Documentation. Supplier will use commercially reasonable efforts to (i) correct any material reproducible error that Company reports to Supplier in writing during the Warranty Period, (ii) replace the defective Product, or (iii) refund to Company all fees paid to Supplier for the defective Product.
b. Third Party Warranties: To the extent possible and where applicable, Supplier shall pass on the benefit of third-party warranties covering components or subparts of the goods and/or services delivered under this Agreement. Supplier will cooperate with Company, in a commercially reasonable manner, in enforcing such third-party warranties.
c. Mutual Warranties. Company and Supplier each warrant that the representatives executing this Agreement and executing each SOW under this Agreement have the requisite authority to bind Company and Supplier.
VI. Liabilities
a. NOTWITHSTANDING ANY PROVISION TO THE CONTRARY IN THESE TERMS OR TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, FOR ANY LOSS OF PROFIT, LOSS OF PRODUCTION, LOSS OF REVENUE, FINANCIAL LOSS OR FOR ANY INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL LOSS OR DAMAGES, IN EACH CASE, HOWEVER CAUSED, EVEN IF FORESEEABLE, ARISING UNDER OR IN CONNECTION WITH THE TERMS.
VII. Intellectual Property
a. License. All software Products are provided to Company subject to the following:
i. Definitions.
1. “Documentation” means any user, training or system manuals for the Software that describes and/or provides guidance on the Software or any aspect of the Software (in whatever form or media and as updated from time to time); and
2. “Software” means the Supplier software made available to the Company under these Terms, including all associated media, upgrades, alterations and modifications to, or new releases or versions of, that software, and made available to the Company.
ii. License. Supplier hereby grants to Company a limited, non-exclusive, non-transferable, non-sub-licensable license to use the Software and the Documentation. The Company may make a reasonable number of copies of the Software and Documentation for testing, training and back-up purposes.
iii. Terms of Use. Company shall not use the Software in any way other than explicitly set forth in these Terms and for the business use intended. Without derogating from the above:
1. The Company must not, and must not permit any other person to, will to modify, decompile, reverse engineer, disassemble or otherwise attempt to reveal the source code of the licensed software.
2. Except as set out in this clause or otherwise permitted by law, the Company must not, and must not permit any other person to, copy, reproduce, translate, adapt, vary, repair or any of the Software or Documentation by any means or in any form without prior written consent.
3. The Company must not sublicense, provide, or otherwise make available, the Software or any component of the Software in any form to any person (other than its employees) without the prior written consent of Supplier.
4. The Company will comply with all relevant laws and regulations when using the Software and the Documentation.
5. Company shall not integrate the Software or the Software’s interface to any unapproved third-party application. Further, the Software which resides at a site may not be integrated with a third-party application that requires use of a Company proprietary interface unless Company has first licensed a corresponding license for such interface from Company for each authorized copy of the Software that Company has licensed pursuant to the Terms. Also, Company may not without the prior written consent of Supplier have read or write access to any Supplier proprietary database repository that is used to store data as part of the functionality of the Software.
b. Ownership. Each Party shall own and retain all rights, title and interest (including all copyrights, patents, service marks, trademarks and other intellectual property rights) in its Products. Except for any license granted pursuant to this Agreement, neither Party shall acquire any interest and/or rights in the other Party’s Products or any other services or materials, or any copy or portion thereof, provided by such Party, pursuant to this Agreement.
VIII. Indemnification and Insurance
a. General Indemnity.
i. The Supplier shall fully and completely indemnify Company in respect of all claims (including reasonable attorneys’ fees) by any person whatsoever for injury to person or property caused by or in connection with the use the Products and, additionally, for all costs and charges in connection therewith except to the extent such claim is a result of the negligence or intentional wrongdoing of Company. The Supplier will defend, indemnify, and hold harmless the Company, its Affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (a) Supplier or any Suppliers’ end users’ use of the Products, (b) violation of applicable law by the Supplier or any Suppliers’ end user; or (c) Supplier’s content or the combination of Supplier’s content with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third party rights by Supplier’s content or by the use, development, design, production, advertising or marketing of Supplier’s content.
ii. If Company is obligated to respond to a third-party subpoena or other compulsory legal order or process described above, Supplier will also reimburse Company for reasonable attorneys’ fees, as well as Company’s employees’ and contractors’ time and materials spent responding to the third-party subpoena or other compulsory legal order or process at its then current hourly rates.
b. Insurance Requirements.
i. Supplier shall, at its sole cost and expense, procure and maintain in full force and effect the insurance coverages set forth below with insurers rated A–/VIII or better by A.M. Best (or otherwise reasonably acceptable to Company):
1. Commercial General Liability. Commercial general liability insurance on an occurrence basis (including premises/operations, products/completed operations, contractual liability, personal and advertising injury and liability for bodily injury and property damage) with limits of not less than $2,000,000 per occurrence.
2. Cyber Liability. Network security/privacy liability (cyber) insurance covering, among other things, privacy liability, network security liability, breach response costs (including notification and credit monitoring), data restoration, regulatory defense and penalties, and cyber extortion, with limits of not less than $2,000,000 per occurrence/claim.
ii. Supplier shall cause its insurer to endorse the policies required under the terms of this Agreement to name Company, its parents, subsidiaries and affiliates, and each of their respective officers, directors, employees and agents as additional insureds with respect to liability arising out of Supplier’s performance of this Agreement.
iii. Prior to commencement of Supplier’s obligations under this Agreement and upon renewal thereafter, and upon written request from Company, Supplier shall deliver to Company certificates of insurance and copies of all required endorsements evidencing the coverages and limits required hereunder. Each policy shall provide that it shall not be canceled, materially reduced or materially changed without at least thirty (30) days’ prior written notice to Company (ten (10) days’ notice for non payment of premium), provided that the failure to deliver such certificates or endorsements shall not affect Supplier’s obligations hereunder.
IX. Compliance
a. Generally. The Parties shall fully comply with all applicable laws, rules and regulations, including without limitation those of the United States and all other jurisdictions globally (“Laws”) that apply to the respective Parties’ business activities in connection with the purchase of and use of Products from the Supplier. Specifically, the Parties shall comply with all Laws relating to anti-corruption, bribery, extortion, kickbacks, or similar matters, including without limitation the U.S. Foreign Corrupt Practices Act and the UK Bribery Act. No Party will take any action that will cause either Party or any of their affiliates to violate any such Laws. Supplier warrants it has reviewed the Supplier Code of Conduct as of the time of Company order and further warrants its compliance with all provisions of such code of conduct.
b. Data Use and Protection. Company’s Data Processing Addendum (“DPA”), available here, is incorporated by reference herein. Company grants Supplier a worldwide, limited-term license to host, copy, display, and use any information, data, and/or files that Company transmits, uploads, creates, or stores to or on the Products provided by Supplier (“Company Data”). Company authorizes Supplier to create an aggregated or fully anonymized data set based on Company’s Personal Information (as defined within the DPA). Company and Supplier agree the aggregated or fully anonymized data set is not Personal Data or Personally Identifiable Information (as defined under applicable Data Protection Laws) and will be owned and retained by Company. Furthermore, Company acknowledges and agrees that Products can use certain Company Data, including without limitation, end-user data to improve the Products, and create new services that use the Company Data in an anonymized or aggregated form. To this end, Company shall ensure that all requisite consents and approvals are procured, including from end-users. For the avoidance of doubt, it is hereby clarified that under no circumstances shall Supplier be construed as a “data controller” under any applicable Data. Other than Company's security and data protection obligations expressly set forth in these Terms, Company assumes no responsibility or liability for Company Data, and the Supplier shall be solely responsible for Company Data and the consequences of using, disclosing, storing, or transmitting it
c. Cyber Protection. Unless otherwise specified in these Terms or agreed in writing by both Company and Supplier, it is Supplier’s responsibility to have and maintain in place malware protection software and security for all of Supplier’s systems and data, which security includes properly configured hardware firewalls, unique, strong passwords per user, physical security, and access control policies. Supplier acknowledges that the security and protection of Supplier’s network and the data and applications on that network, including protections against unauthorized access, the configuration of all required data parameters, including security-related parameters, is solely and entirely Supplier’s responsibility. A properly configured firewall is required for each site using a persistent connection to the public Internet or any private network where there is a potential for unauthorized access. Supplier acknowledges that, to be effective, malware protection software, hardware firewalls, system passwords and other security software and hardware components require periodic and routine updates, which Supplier must obtain or perform as applicable. Supplier acknowledges that failure to discharge Supplier obligations to keep Company’s systems secure may result in investigation fees, fines, penalties, charge backs and credit card fraud costs, and other losses as levied by credit card processors and others, remediation costs (which may include system component updates or replacements) and lost profits and loss of reputation and/or goodwill. Supplier waives any claims against Company for any such costs or losses to the extent arising from Supplier’s failure to have or maintain a secure system, or to the extent arising as a result of a failure or breach of Supplier’s security for Supplier’s systems or data, or as a result of any unauthorized access to Supplier’s systems. In the event of a security breach of Supplier’s systems, Supplier agrees to promptly (i) notify Company of such breach, (ii) provide Company with copies of any forensic reports related to such breach, and (iii) authorize any investigating entities to disclose all relevant information regarding Supplier investigations, including investigations in progress, of such breach to Company
d. The foregoing requirements are in addition to any other confidentiality and security obligations under these Terms. Nothing contained in this section will be construed as granting either Party any ownership interest in the Personal Information or Data of the other Party. Except in accordance with a Data Processing Agreement, under no circumstances will either Party transmit Personal Information to the other.
X. Payment Terms and Invoicing
a. Supplier shall invoice Company directly for Products rendered under this Agreement at Company’s address set forth below. Company shall not be obligated to pay invoices that are not invoiced within ninety (90) days. If Supplier fails to provide an invoice within such 90-day period, Supplier waives any claim it has to the amounts otherwise due under such invoice. Company reserves the right to withhold payment on any disputed invoice upon notice to Supplier. Company shall pay undisputed invoices according to its current payment processing schedule and methods, which shall be made available to Supplier upon demand
b. Company will pay undisputed invoices within ninety (90) days via credit card, or any other method as preferred by Company, from the date Company receives Supplier’s valid invoice. Supplier shall accept such payment and shall not assess, add, or otherwise impose any surcharge, convenience fee, processing fee, or similar charge in connection with Company’s payment by credit card. Supplier shall be solely responsible for any merchant or card-processing fees charged to Supplier by its payment processor.
c. Supplier shall submit invoices to the contact included on any applicable SOW.
d. Supplier is responsible for paying or self-assessing all applicable direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales, use or withholding taxes.
XI. General Provisions
a. Confidentiality. All documents and information, including business data and Product pricing supplied to a party (the “Receiving Party”) hereunder that is marked confidential, restricted, or otherwise subject to limited access, or would be reasonably understood to be confidential based on the nature of the information or the circumstances surrounding the disclosure (“Confidential Information”), are proprietary in nature and confidential to the party disclosing such information (the “Disclosing Party”). The Receiving Party agrees to maintain such documents and information in confidence, and not to disclose such information to a third party or use such documents or information for any purpose other than the fulfillment of the mutual business purposes of the Parties under this Agreement. The Receiving Party will disclose Confidential Information only to the employees of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. This section shall survive any termination of this Agreement, and notwithstanding the above, nothing contained in this section shall restrict Supplier from entering into a direct contract or other contractual arrangements with companies or prospective companies.
b. Term.
c. This Agreement will commence on the date hereof and will terminate on the first anniversary thereof, unless earlier terminated in accordance with the terms of this Agreement or unless the Parties agree in writing to extend the term, Upon termination or expiration of the Term, if requested by Company, Supplier shall fulfill all outstanding orders in accordance with the provisions of this Agreement and such orders.
d. Termination and Termination Remedies.
i. Termination for Convenience. Company may terminate this Agreement without cause upon sixty (60) days’ prior written notice to Supplier.
ii. Termination for Cause. A Party may terminate this Agreement for Cause (as defined below) upon 90 days’ prior written notice of its intent to terminate for Cause, unless the other Party is able to cure such Cause during the 90-day notice period. Notwithstanding the foregoing, Supplier may terminate this Agreement for Cause immediately upon written notice if such Cause is based upon Section XI. The time period from the commencement of the initial Term until termination or expiration of this Agreement shall be the “Term.”
Any one of the following shall be deemed “Cause” for termination hereunder:
1. any breach of a material provision of this Agreement;
2. any material false representation, report, or claim in connection with the business relationship of the Parties hereto or any fraud or criminal misconduct;
3. the transfer of an interest equivalent to or greater than thirty-five percent (35%) of the beneficial ownership of Supplier to an individual or entity without the prior written consent of Company, which consent shall not be unreasonably withheld;
4. any merger, or consolidation, involving Supplier or sale of all or substantially all of Supplier’s assets related to performance under this Agreement, without the prior written consent of Company, which consent shall not be unreasonably withheld;
5. any assignment of this Agreement by Supplier, in whole or in part, direct or indirectly, in breach of Section XI, below;
6. any unauthorized use of a Supplier trademark or logo by Company;
7. the adjudication of either Party to be bankrupt or insolvent; the filing by either Party of a voluntary petition in bankruptcy or insolvency, or for the appointment of a Receiver with respect to all or a substantial part of the property of the Party; the filing by either Party of a petition, answer, or other pleading seeking or being caused to reorganize or readjust under any law relating to insolvency of bankruptcy unless discharged within thirty (30) days; or the institution by either Party of any proceedings for liquidation or winding up of its business other than for purposes of reorganization, consolidation, or merger.
iii. Open Orders. Termination of this Agreement by Company shall also terminate any open orders, SOWs, etc., as of the date of termination.
iv. Post-Termination Rights and Obligations of the Parties. If this Agreement expires or is terminated:
1. At Company’s option, Supplier agrees to return to Company all special tools, training manuals, manuals, and any other proprietary or trademark materials.
2. Supplier agrees to immediately cease the use or display of all materials previously approved for use or provided by Company.
3. Termination or expiration of this Agreement for any reason shall be without prejudice to all accrued rights and remedies and shall not affect the continuing rights and obligations of the Parties under any relevant section of this Agreement, including those obligations which contemplate performance by a Party after the expiration or termination of this Agreement.
e. Independent Counsel and Drafting. Each Party acknowledges that they have had the opportunity to seek independent legal counsel in connection with the negotiation and execution of this Agreement. This Agreement shall be deemed to have been drafted jointly by the Parties and, in the event of a dispute, shall not be construed against any Party by reason of its drafting or preparation.
f. Notice. Any notice provided for or permitted under this Agreement will be treated as having been given (i) when delivered personally, on the next business day after the day on which it is personally delivered, (ii) when sent by commercial overnight courier or email with written verification of delivery, on the next business day after its delivery to the courier during normal business hours, or (iii) when mailed postage prepaid by certified or registered mail, return receipt requested, on the fifth business day after its date of posting. Any notices required or permitted to be given will be in writing and addressed as follows, or at such place which has been notified to the other Party in accordance with this provision:
If to Supplier:
7300 W. Friendly Ave.
Greensboro, NC, 27401
Attn: Legal Department
If to Company:
At the address first set forth in any applicable SOW.
A Party may amend its address for notice by providing written notice to the other Party, expressly stating if the change in address applies to the Notice Section of Attachment A and/or which SOWs the change in address applies. Notwithstanding the foregoing, service of process must be served on a Party’s registered agent for such purpose.
g. Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of North Carolina, USA, without regard to the conflicts of laws provisions. Supplier and Company consent to the sole and exclusive venue and jurisdiction of the courts situated in Guilford County, North Carolina, USA.
h. Dispute Resolution. The Parties will attempt to settle any claim or controversy arising out of this Agreement through good faith negotiations and in the spirit of cooperation. Any issues that cannot be so resolved will be referred to a senior management representative from each of the Parties who has the authority to resolve the dispute. In the event such senior management representatives cannot resolve the dispute within a period of 30 days of the referral, either Party may submit the dispute to binding arbitration for resolution.
i. Any such arbitration proceedings shall be conducted at the place of the principal office of the respondent in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”). The dispute or controversy shall be arbitrated before a single arbitrator who is selected in accordance with the rules of the AAA. The arbitrator's decision shall be final and binding upon the Parties. The Parties shall be entitled to full discovery in any such arbitration.
ii. Each Party shall bear one-half of the cost of such arbitration unless the arbitrator otherwise allocates such costs. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Nothing in this Section will prevent either Party from resorting to judicial process if injunctive relief from a court is necessary to prevent serious and irreparable injury to one Party or to others.
i. Entire Agreement. Unless otherwise agreed to in a written instrument signed by Supplier and Company, these terms constitute the entire agreement between the Parties, there being no other promises, terms, understandings, conditions, or obligations referring to the subject matter contained herein. Any modifications hereto shall be in writing and signed by both Parties. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. This Agreement shall be interpreted and construed only by its contents and there shall be no presumption or standard of construction in favor of or against either Party.
j. Severability. If for any reason any provision of this Agreement, including but not limited to any provision relating to termination of this Agreement, shall be deemed, by a court of competent jurisdiction to be legally invalid or unenforceable in any jurisdiction to which it applies, the validity of the remainder of the Agreement shall not be affected and such provision shall be deemed modified to the minimum extent necessary to make such provision consistent with applicable law, and, in its modified form, such provision shall then be enforceable and enforced so long as the essential benefits of this Agreement remain enforceable and obtainable.
k. Construction. The Parties acknowledge that each has had the opportunity to seek legal counsel to review the contents of this Agreement and that neither Party shall be deemed the drafter of the Agreement
l. Independent Contractors. Nothing in this Agreement is intended to, or shall be deemed to, establish any employer-employee relationship, partnership or joint venture between any of the Parties, constitute any Party the agent of another Party, or authorize any Party to make or enter into any commitments for or on behalf of any other Party except as expressly provided in this Agreement or in subsequent documents executed by duly authorized representatives of both Parties.
m. Assignment. Supplier shall not assign or transfer this Agreement or any of its rights, or delegate any of its duties or obligations hereunder, whether voluntarily, by merger, operation of law, or otherwise, without the prior written consent of Company, which shall not be unreasonably withheld.
n. Waiver. No waiver of any of the provisions of this Agreement shall be deemed, or will constitute, a waiver of any other provision, whether or not similar, nor will any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the Party making the waiver.
o. Counterparts. This Agreement may be executed in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute on and the same instrument. This Agreement may also be executed and delivered by electronic transmission, and any such counterpart executed and delivered by electronic transmission shall be deemed an original for all intents and purposes. For avoidance of doubt, no counterpart shall be effective until each Party has executed at least one counterpart.
p. Change of Control. Company may assign these Terms to (i) any of its Affiliates or (ii) any entity with which or into which Company may consolidate or merge. Company may also subcontract or delegate any of its obligations to any of its Affiliates or as otherwise permitted by these Terms. Any assignment, subcontracting, or delegation by Company shall not relieve Company of any of its obligations under these Terms.
q. Force Majeure. Neither Party shall be liable to the other as a result of any delay or failure to perform its obligations under the Agreement if and to the extent such delay or failure is caused by an event or circumstance which is beyond the reasonable control of that Party and which by its nature could not have been foreseen by such a Party or if it could have been foreseen was unavoidable. If such event or circumstances prevents the affected Party from performing its obligations under the Agreement for more than 28 days, the other Party shall have the right, without limiting its other rights or remedies, to terminate the Agreement with immediate effect by giving written notice of the same and either Party shall be entitled to recover from the other prepayments for products and services not provided or supplied in the event of the Force Majeure event.