Effective: December 1, 2017.
These Terms and Conditions of Purchase (the “Terms”) govern the rights, remedies, and obligations of Zendesk, Inc., including any entity, affiliate or subsidiary owned or controlled by Zendesk, Inc. (“Company”) and a supplier (the “Supplier”) of items and materials, including products, hardware, software, furniture, equipment, and merchandise (“Goods”) and/or services (“Services”) under purchase orders issued by Company and any agreements, engagement letters, statements of work, or other documents executed by Company and Supplier that refer to or incorporate these Terms (each a “Purchasing Document”).
1. Quality. Supplier shall perform all of its obligations to Company (i) with due care, skill and diligence; (ii) in a professional and workmanlike manner; (iii) in accordance with generally-accepted industry standards and practices; (iv) in conformity with the specifications in the Purchasing Document; and (v) without a conflict of interest with respect to a third party. All results of the Services developed by Supplier, either alone or jointly with others, whether completed or in-progress (the “Deliverables”) shall conform to the relevant specifications in the Purchasing Document; and, to the extent there are no directly relevant specifications, to generally-accepted industry standards. All Goods shall be merchantable, free from defects in design, workmanship and materials, and shall conform to the specifications in a Purchasing Document.
2. Supplier Personnel. Supplier shall determine the methods, details, and means of performing the Services. Unless set forth in a Purchasing Document, Company will not control, direct, or supervise Supplier’s employees, independent contractors, vendors, agents, permitted subcontractors, or invitees (“Supplier Personnel”) in the performance of the Services. Supplier shall use adequate numbers of qualified individuals with suitable training, education, experience and skills to perform the Services. Any Supplier Personnel, or employees of Supplier’s subcontractors assigned to provide Deliverables, with access to Company’s facility or given access to Company’s internal systems will have undergone a diligent background check. Supplier shall provide such information to Company upon request. Supplier agrees to take all reasonable measures to ensure that Supplier Personnel will not engage in inappropriate conduct while performing Services for Company and agrees that Supplier Personnel who engage in inappropriate conduct shall be removed and replaced immediately upon Company’s reasonable request. Supplier shall require Supplier Personnel performing any of the Services to observe at all times the security, confidentiality, and safety policies of Company. Supplier shall, at all times, be fully liable for the performance, acts and omissions of their Supplier Personnel. All Supplier Personnel shall meet the licensing, security, labor and site requirements for the locale where the Services are being performed. Supplier shall withhold and pay all amounts required for any employer or employee tax or contribution, including local, state and federal income tax, unemployment insurance and disability insurance. All Supplier Personnel performing Services are, and shall for the period of assignment remain employees of Supplier, or subcontractors of Supplier (where permitted by these Terms) and such Supplier Personnel will not be entitled to any of Company’s employee benefits. It shall be Supplier’s sole responsibility to compensate and/or pay Supplier Personnel. Supplier shall maintain complete and accurate records to substantiate Supplier’s compliance with this paragraph for a period of six (6) years from the last day on which the Supplier Personnel to whom such records relate provided services to Company, and Supplier shall promptly comply with Company’s reasonable request for copies of such records and/or for a certification from Supplier indicating its compliance with this section.
3. Subcontracting. Supplier shall not subcontract any Services without the prior written consent of Company, which Company may grant or withhold in its sole discretion. If Company provides such written consent, then Supplier shall have the primary obligation to perform the Services, and shall be fully responsible for the performance of any subcontractor and the compliance with all of its obligations by any subcontractor. Supplier shall, in its contracts with all permitted subcontractors and agents in the provision of Services, flow down all of its obligations in these Terms.
4. Code of Conduct. Supplier acknowledges receipt of the Company’s Supplier Code of Conduct and agrees to provide a copy of it to all Supplier Personnel assigned to perform Services.
5. Compliance with Laws. Supplier and Supplier Personnel shall comply with all applicable international, federal, state, local laws and ordinances now or hereafter enacted, including: (i) data protection and privacy laws; (ii) employment, tax, immigration, benefits, and workers compensation laws; and (iii) international anti-corruption laws, such as the Foreign Corrupt Practices Act 15 U.S.C. § 78dd-1, et seq. and the United Kingdom Bribery Act. Supplier shall make no payments or transfers of anything of value which have the purpose or effect of public or commercial bribery, acceptance of or acquiescence in extortion, kickbacks, or other unlawful or improper means of obtaining business or any improper advantage.
In addition, these Terms incorporate by reference the following clauses: 41 CFR §60-1.4(a); 41 CFR §60-300.5(a); 41 CFR §60-741.5(a) and 29 CFR Part 471, Appendix A to Subpart A. Company and the Supplier must abide by non-segregation regulations at 41 CFR §60-1.8 and any applicable affirmative action obligations as required by 41 CFR §60-1.40(a)(2).
Company and the Supplier shall abide by the requirements of 41 CFR 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability or veteran status.
6. Acceptance. Payment shall not constitute acceptance of Goods or Deliverables. Unless otherwise provided in a Purchasing Document, acceptance of Goods or Deliverables shall be deemed to occur if each Good or Deliverable conforms to the relevant specifications and standards. Company shall have the right to reject all or part, or require the correction, of any Good or Deliverable found not to meet the relevant specifications and standards, which item shall be promptly replaced or corrected by Supplier. Company shall not be obligated to make any payments for non-conforming Deliverables or Goods, and shall be entitled to a refund of all prepaid fees for such non-conforming Deliverables or Goods.
7. Warranty. Unless otherwise set forth in the applicable Purchasing Document, Supplier warrants that for a period of twelve (12) months following Acceptance, Goods and Deliverables will conform to the specifications in the Purchasing Document and, to the extent there are no directly relevant specifications, to generally-accepted industry standards. During the applicable warranty period, Supplier will test, remedy and/or replace, without charge to Company, any and all portions of any Deliverables or Goods that Company finds to be defective or non-conforming. If Supplier is unable to remedy any defective or non-conforming Deliverable or Good within a reasonable period of time, Company may (i) terminate the Purchasing Document; (ii) return all or part of the defective or nonconforming Deliverables or Goods to Supplier; and/or (iii) keep the defective or non-conforming Deliverables and Goods. Company shall not be obligated to make any payments for non-conforming Deliverables or Goods, and shall be entitled to a refund of all prepaid fees for such non-conforming Deliverables or Goods.
8. Intellectual Property. Company hereby rejects any Deliverables containing any dependency that is not declared in a Purchasing Document or that is incompatible with the assignments or licenses granted in these Standard Terms or the Purchasing Document. Supplier hereby assigns and transfers, to the maximum extent allowed by applicable law, to Company and its successors and assigns all right, title and interest in all work product (in any form or format) resulting from a Deliverable, Good or Service inclusive of, but not limited to, all intellectual property rights in such work product. Supplier shall enter into agreements with Supplier Personnel and third party providers as necessary to secure the rights needed to comply with this section.
9. Delivery, Packing, and Shipment. Delivery of Goods and Deliverables shall be strictly in accordance with the schedule set forth in a Purchasing Document. Any delays in shipment shall be reported immediately by Supplier to Company. Supplier shall not make any partial deliveries or deliveries of additional items, without Company’s express prior written consent. Company reserves the right to cancel a Purchasing Document in whole or in part if Supplier fails to make deliveries in accordance with its terms. All Goods and Deliverables to be shipped shall be prepared for shipment according to Company’s instructions, if any, and otherwise in a manner that follows good commercial practice, is acceptable to common carriers, and is adequate to ensure safe arrival. Supplier shall mark all containers with necessary lifting, handling and shipping information, purchase order number, date of shipment and the names of Company and Supplier. Unless otherwise specified herein, all shipments shall be FOB Destination). Notwithstanding any prior inspections, Supplier bears all risk of loss, damage, or destruction until acceptance of Goods or Deliverables by Company.
10. Changes. Company may at any time make reasonable changes in the delivery schedules, designs, quantities, and specifications for Goods provided that Company shall pay only the reasonable costs associated with such changes.
11. Price. Prices for Services, Deliverables, and Goods are as specified in the Purchasing Document. Company shall have no payment obligation for (i) additional or different Services, Deliverables, or Goods rendered other than those described in a Purchasing Document (unless the parties execute an approved change order); (ii) Services performed or Goods delivered prior to the effective date of the Purchasing Document; or (iii) amounts exceeding what is expressly authorized in the Purchasing Document.
12. Payment Terms. Unless otherwise provided in a Purchasing Document, Supplier shall invoice Company monthly. Invoiced amounts for which no due date is otherwise established will be due and payable within forty (40) days from receipt of an undisputed invoice. An acceptable invoice shall be in the form and submitted in the manner designated in the affiliate purchasing guidelines for the Company entity that is a party to the Purchasing Document, and shall include reference to: (a) the Company entity; (b) the valid purchase order number; (c) a description of the items, quantities, and unit prices for all Services, Deliverables and Goods invoiced; (d) the name of the individual from Company who ordered the Services, Deliverables and Goods; (e) the contact information for an authorized representative of the Supplier; and (f) any applicable VAT information (including the VAT code listed in the affiliate purchasing guidelines, if any). Each invoice must reference only one (1) purchase order number, and Supplier shall submit a separate invoice for each Purchasing Document. For invoices submitted via email or mail in compliance with the affiliate purchasing guidelines, Supplier shall submit only one (1) invoice per email or mail.
13. Expenses. Unless expressly authorized in the Purchasing Document, Supplier will not be entitled to be reimbursed for travel, living or other expenses.
14. Taxes. Amounts payable to Supplier under this Purchasing Document are exclusive of any transaction taxes (including sales, use, consumption, value-added and similar transaction taxes) that may be imposed in connection with fees received by Supplier pursuant to this Purchasing Document. For any payments made, Supplier may charge and Company will pay applicable transaction taxes, provided that such transaction taxes are stated on the original invoice related to the Service rendered, that Supplier timely provides to Company and Supplier’s invoices state such transaction taxes separately. Company may provide Supplier with an exemption certificate or equivalent information acceptable to the relevant taxing authority, in which case, Supplier will not charge and or collect the transaction taxes covered by such certificate. Company may deduct or withhold any withholding taxes that Company may be legally obligated to deduct or withhold from any amounts payable to Supplier under the Purchasing Document, and payment to Supplier as reduced by such deductions or withholdings will constitute full payment and settlement of amounts payable to Supplier. If a tax authority subsequently finds that Company’s withholding tax payment was insufficient and requires additional payments, Company will make such payments and Supplier will reimburse Company for such additional withholding tax payments. Within a reasonable period, Company will provide Supplier with documentation evidencing its withholding tax payments.
15. Confidentiality. Company may supply certain proprietary and confidential information to Supplier during the course of its engagement. “Confidential Information” means all information disclosed by Company to Supplier which is in tangible form and labeled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to information relating to Company’s security policies and business procedures. Notwithstanding the foregoing, Confidential Information shall not include information that (i) was already known to Supplier at the time of disclosure by Company; (ii) was or is obtained by Supplier by a third party not known by the Supplier to be under an obligation of confidentiality with respect to such information; (iii) is or becomes generally available to the public other than by violation of these Terms or another valid agreement between the Parties; or (iv) was or is independently developed by Supplier without use of Company’s Confidential Information. Supplier and Supplier Personnel shall not make any use of Confidential Information except as required in the performance or provisioning of the Service, Deliverables or Goods and shall not disclose any Confidential Information to any person or entity except as necessary for the performance of the services.
16. Privacy and Security. Supplier will maintain industry standard safeguards against the disclosure, destruction, loss, or alteration of Company information and shall be fully responsible for all liabilities, harm, cost, and loss arising from such disclosure. If Supplier is processing or transferring Personal Data on behalf of Company, as required by Company, Provider will execute and/or cause its affiliates, contractors or subcontractors to execute supplemental privacy and security terms. “Personal Data” means information relating to an identified or identifiable natural person; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to physical, physiological, mental, economic, cultural or social identity. Supplier shall be responsible for all acts, omissions, and damages arising from the violation of this provision by affiliates, contractors, subcontractors, and Supplier Personnel.
17. Indemnification. Supplier shall indemnify, defend (at Company’s option), and hold harmless Company and its affiliates, and each of their officers, directors, employees and agents from and against all third-party claims, demands, suits, causes of action, awards, judgments and liabilities, including reasonable attorneys’ fees and costs, (collectively “Claims”) arising out of or alleged to have arisen out of: (i) Supplier or Supplier Personnel’s negligence or intentional misconduct; (ii) any actual or alleged infringement, misappropriation, or violation of any intellectual property rights of a third party by any Deliverable or Good or in performance of the Services; (iii) Supplier’s failure to compensate or otherwise perform any obligation imposed on Supplier by law or contract with respect to Supplier’s employment or engagement of Supplier Personnel, in which case, Claims shall include any payments assessed under U.S. Internal Revenue Code Section 4980H and any interest, penalties and additions to tax relating to such payments; or (iv) breach of a provision of a Purchasing Document. Company shall only indemnify, defend, and hold harmless Supplier from and against third-party Claims to the extent the Claims are due solely to Company’s intentional misconduct. Supplier shall have no liability for Company’s use of Goods or Deliverables outside the scope set forth in a Purchasing Document.
18. Insurance. Supplier represents that it has worker’s compensation insurance as required by all applicable law with respect to its employees, including authorized agents, and that it has and will maintain in effect comprehensive general liability and technology errors and omissions insurance for injuries and damages caused by Supplier or its employees or agents. Such liability insurance shall have minimum coverage of not less than $1 Million U.S. Dollars per occurrence. Upon Company’s request, Supplier shall provide Company with a certificate of insurance evidencing such insurance coverages and shall have Company named as an additional insured on such liability policy. Supplier shall not cancel or allow the lapse of such insurance coverage and upon Company’s request shall provide a certificate stating that same shall not be cancelled without at least thirty (30) days’ prior written notice to Company.
19. Limitation of Liability. IN NO EVENT SHALL COMPANY BE LIABLE UNDER ANY LEGAL THEORY FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR INCIDENTAL DAMAGES, HOWEVER CAUSED, ARISING OUT OF OR RELATING TO THESE TERMS, EVEN IF SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, COMPANY’S AGGREGATE LIABILITY TO SUPPLIER ARISING OUT THESE TERMS, UNDER ANY THEORY, SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY THE COMPANY TO SUPPLIER UNDER THESE TERMS IN THE TWELVE (12) MONTHS LEADING UP TO THE CLAIM.
20. Records and Audit. Supplier shall maintain complete and accurate records to substantiate Supplier’s charges under these Terms (including fees, costs, and expenses) for a period of six (6) years from the date of completion of the Services to which the records apply, and Supplier shall promptly comply with Company’s reasonable request for copies of such records. Upon reasonable prior notice, Company (or an independent third party designated by Company) shall have the right to visit, inspect, and audit Supplier’s facilities, records, and data to ensure Supplier’s compliance with its obligations, including those with respect to financial records and Company Confidential Information. All audits described in this Section will be conducted reasonably, during normal business hours, and utilize reasonable precautions to minimize disruption to Supplier’s normal business. Such audit will be at Company’s expense unless such audit reveals an overcharge of five percent (5%) or greater or a material breach in Supplier’s obligations, in which case such audit will be at Supplier’s expense. All Supplier reviews or audits conducted by Company shall be governed by the confidentiality terms described in Section 14 (Confidentiality) above. All review or audits conducted by Company’s third party designee shall be governed by a confidentiality agreement between Supplier and Company’s third party designee, which shall be the standard confidentiality agreement of such third party designee.
21. Term. A Purchasing Document shall continue in force until the later of (a) completion of the Services; (b) delivery and acceptance of the Goods; or (c) expiration of all warranties for Goods or Deliverables. A Purchasing Document for Goods may be terminated or cancelled by Company, in part or in whole, for any reason immediately upon notice. A Purchasing Document for Services and/or Deliverables may be terminated or cancelled by Company, in whole or in part, for convenience with thirty (30) days prior notice. A Purchasing Document for Services and/or Deliverables may be terminated by Company, in whole or in part, effective as of the occurrence of Supplier’s curable breach if Supplier fails to cure the breach within thirty (30) days of notice of such breach from Company. A Purchasing Document for Services and/or Deliverables may be terminated by Company, in whole or in part, immediately upon Supplier’s incurable breach. Upon the effective date of termination by Company, Supplier shall: (a) immediately cease all work under the Purchasing Document and Company shall be liable for payment only for authorized work completed as of the date of termination; and (b) provide Company with any and all work in progress or completed work under the Purchasing Document. If Company elects to have Supplier continue performance under a Purchasing Document, it shall remain in effect until both parties have fulfilled all of their obligations. Within thirty (30) days from the date of termination of a Purchasing Document, Supplier shall submit to Company an itemized invoice for any previously approved fees or expenses accrued but unpaid until the time the Purchasing Document was terminated. There shall be no charges for canceling Purchasing Documents for standard Goods. Any claim for cancellation charges for nonstandard Goods must be submitted to Company in writing within thirty (30) days after receipt of Company’s cancellation notice. Supplier’s claim may include: (a) the cost of unique Goods in process, and (b) the cost of paying claims to Supplier’s vendors for work directly allocable to Goods cancelled and which cannot be diverted to other customers of Supplier’s vendors. Supplier shall, whenever possible, place such Goods in process in inventory and sell them to other customers. In no event shall any such claim for nonstandard Goods exceed the total price for Goods cancelled. Upon payment of Supplier’s claim, Company shall be entitled to all work and Goods for which Company has made payment. Company reserves the right to inspect Supplier’s work and Goods in process and to audit all relevant documents prior to paying Supplier’s claim.
22. Relationship of the Parties. At all times, Supplier shall be acting as an independent contractor and shall not be construed or deemed to be an employee, agent, partner, associate or joint venturer of Company within the application of any federal, state, city or local laws or regulations. Neither party has authority to assume or create any obligation or representation, express or implied, on behalf of or in the name of the other party, except as specifically provided herein.
23. Vendor Manager. Company reserves the right to appoint a third party to act as its vendor manager, payment and billing agent to coordinate and manage its relationship with Supplier. Such vendor manager shall be considered a third party beneficiary under these Terms.
24. No Lien. Neither Supplier nor any of its subcontractors or other third parties used by Supplier for the performance of any of the Services will have any lien, claim or encumbrance upon any Company property, and Supplier hereby waives, and will cause each of its subcontractors and any other third party used by Supplier for the performance of any of the Services to waive, any lien, claim or encumbrance upon any Company property.
25. Survival. Any term or condition which by its nature is clearly intended to survive the expiration or termination of these Terms, shall survive any expiration or termination of these Terms, including Confidentiality, Indemnification, Limitation of Liability, Records and Audit, Term, and Entire Agreement Sections.
26. Entire Agreement. All references to “Purchasing Document” include these Terms. A Purchasing Document constitutes the entire agreement between the parties with respect to its subject matter, supersedes all prior agreements, whether written or oral, and supersedes and merges all prior discussions between Company and Supplier. Depending on the affiliate that is a party to the Purchasing Document, the Supplemental Terms may apply, and to the extent the Supplemental Terms apply, the Supplemental Terms shall prevail over any conflicting terms in these Terms. A Purchasing Document may contain additional terms so long as they do not conflict with these Terms. These Terms shall prevail over any conflicting terms of any Purchasing Document, unless the conflicting terms are in a Purchasing Document signed by both Company and Supplier. Any terms, conditions or provisions of any Supplier quotation, confirmation, order acknowledgement, invoice, or other commercial document sent to Company are hereby rejected, and shall not constitute additional or modified terms. Purchasing Documents shall be construed according to their fair meaning and as if prepared by both parties. A Purchasing Document may only be amended by a written document executed by both parties. A purchase order issued by Company may also be amended through the issuance by Company of a revised purchase order. The headings contained in these Terms have been inserted for convenience of reference only and are not intended to define, limit or affect scope or intent. If a provision of a Purchasing Document is held to be invalid, illegal or otherwise unenforceable, the remaining provisions shall be unimpaired, and it shall be replaced with a provision that comes closest to the intention of the parties. No failure or delay by either party in exercising any right under a Purchasing Document shall constitute a waiver. Any waiver must be in writing executed by Company and Supplier, and shall not be deemed a waiver of any future breach. The remedies provided in a Purchasing Document are in addition to any other remedies of a party at law or in equity. Supplier and Company acknowledge that they have read these Terms and have had the opportunity to review it with an attorney of their respective choice. Supplier and Company agree that any rule of construction that a contract be construed against the drafter shall not be applied in interpreting these Terms and that in the event of any ambiguity in these Terms, such ambiguity shall not be construed for or against either party on the basis that such party did or did not author these Terms.
27. Force Majeure. Neither party shall be liable for any default or delay in the performance of its responsibilities under a Purchasing Document if and to the extent such default or delay is caused, directly or indirectly, by fire, flood, earthquake, elements of nature or acts of God, riots, strikes, civil disorders, quarantine restrictions, epidemics, pandemics, or any other cause beyond the reasonable control of such party (“Force Majeure”). The time for performance for the non-defaulting party under the Purchasing Document will be extended as necessary, without penalty or liability to such party, for the same period of time as the delay. However, if it appears that the Force Majeure will result in a delay in Supplier’s performance of more than thirty (30) days, Company may, at its option, terminate the Purchasing Document immediately by written notice to Supplier.
28. Notice. All notices, permissions and approvals under an Purchasing Document shall be in writing and shall be effective upon: (i) personal delivery, (ii) the third business day after mailing, (iii) the second business day after sending by recognized overnight courier, or (iv) the first business day after sending by email. Notices of breach, termination or an indemnifiable claim may not be made by email. Notices to Company shall be addressed to: Attn: General Counsel Zendesk, Inc., Attn: Legal Department, 1019 Market St., San Francisco, California 94103 U.S.A
29. Non-Publicity. Supplier will not: (i) issue any press releases; (ii) make any disclosures regarding an Agreement, its terms, or the nature or existence of any relationship between the parties; or (iii) use Company’s trademarks, service marks, corporate or other trade names, or other proprietary marks without Company’s prior written consent. Notwithstanding the foregoing, if the purpose of the engagement includes Company’s event sponsorship, Company grants Supplier a limited, non-exclusive, non-transferable, royalty-free license to use and display its name, trademarks, service marks, copyrights and logo for signage and other purposes solely related to Company’s sponsorship of the event. Supplier warrants and represents that it will abide by Company’s Trademark Guidelines when using any of its name, trademarks, service marks, copyrights and logo found here:
30. Assignment. Supplier may not assign any of its rights or obligations under a Purchasing Document, whether by operation of law or otherwise, without the prior written consent of Company, except that Supplier may assign a Purchasing Document, in its entirety, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of Company.
31. Governing Law and Venue; Disputes. These Terms shall be governed by and construed in accordance with the internal laws of the State of California, without reference to its principles of conflict of laws. Supplier hereby consents to personal jurisdiction of the state and federal courts situated in San Francisco, California for purposes of enforcing these Terms, and waives any obligations that Supplier might have to personal jurisdiction or venue in those courts.