EFFECTIVE: May 2nd, 2016
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. (“Zendesk”) 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 Zendesk and any agreements, engagement letters, statements of work, or other documents executed by Zendesk and Supplier that refer to or incorporate these Terms (each a “Purchasing Document”).
1. Quality. Supplier shall perform all of its obligations to Zendesk (i) with due care, skill and diligence; (ii) in a professional and workmanlike manner; (iii) in accordance with high 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 high 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, Zendesk 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. Supplier agrees to take all reasonable measures to ensure that Supplier Personnel will not engage in inappropriate conduct while performing Services for Zendesk and agrees that Supplier Personnel who engage in inappropriate conduct shall be removed and replaced immediately upon Zendesk’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 Zendesk. 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 Zendesk’s employee benefits. It shall be Supplier’s sole responsibility to compensate and/or pay Supplier Personnel. Without limiting the foregoing, throughout the term of a Purchasing Document, Supplier shall timely offer and, if elected, provide each Supplier Personnel providing Services in the United States, who with respect to any calendar month is employed by Supplier an average of at least thirty (30) hours per week (and his or her dependents), if any, with group health coverage that qualifies as minimum essential coverage under an eligible employer-sponsored plan, is affordable, provides minimum value, and does not have a waiting period in excess of ninety (90) days, so that no payment may be assessed under Section 4980H of the U.S. Internal Revenue Code (the “Code”) with respect to such Supplier Personnel for any month. The terms “hours of service”, “eligible employer sponsored plan”, “minimum essential coverage”, “affordable”, “dependent” and “minimum value” shall have the meanings set forth in Code Section 4980H and the final regulations issued by the Internal Revenue Service interpreting Code Section 4980(H)’s requirements. 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 Zendesk, and Supplier shall promptly comply with Zendesk’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 Zendesk, which Zendesk may grant or withhold in its sole discretion. If Zendesk 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 Zendesk 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 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.
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 and, in the case of Deliverables, is also approved in writing by an authorized representative of Zendesk. Zendesk 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. Zendesk shall not be obligated to make any payments for non-conforming Deliverables or Goods, and shall be entitled to a refund 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 high industry standards. During the applicable warranty period, Supplier will test, remedy and/or replace, without charge to Zendesk, any and all portions of any Deliverables or Goods that Zendesk 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, Zendesk 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. Zendesk shall not be obligated to make any payments for non-conforming Deliverables or Goods, and shall be entitled to a refund for such non-conforming Deliverables or Goods.
8. Intellectual Property. Zendesk 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.
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 Zendesk. Supplier shall not make any partial deliveries or deliveries of additional items, without Zendesk’s express prior written consent. Zendesk 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 Zendesk’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 Zendesk 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 Zendesk.
10. Changes. Zendesk may at any time make reasonable changes in the delivery schedules, designs, quantities, and specifications for Goods provided that Zendesk 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. Zendesk 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. All applicable direct and indirect taxes, duties and similar levies, excluding value added tax (VAT), shall be included in the estimated project costs contained in each Purchasing Document and shall be clearly identified on applicable invoices. For purposes of these Terms, “indirect taxes” mean sales tax, use tax, value added tax (VAT), goods and services tax and/or consumption tax that Supplier may have an obligation to charge and collect from Zendesk. Supplier is not responsible for a change in the indirect taxes resulting from a change in any code or regulation implemented after the submission of the estimated project cost.
12. Payment Terms Unless otherwise provided in a Purchasing Document, Supplier shall invoice Zendesk 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 Zendesk entity that is a party to the Purchasing Document, and shall include reference to: (a) the Zendesk 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 Zendesk 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. All authorized expense reimbursements shall be made in accordance with the Travel and Expense Guidelines.
14. Confidentiality Confidential Information: means all information disclosed by Supplier to Zendesk or by Zendesk 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 Zendesk’s security policies and procedures. Notwithstanding the foregoing, Confidential Information shall not include information that (i) was already known to the receiving party at the time of disclosure by the disclosing party; (ii) was or is obtained by the receiving party by a third party not known by the receiving party 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 the receiving party without use of the disclosing party’s Confidential Information.
15. Indemnification Supplier shall indemnify, defend (at Zendesk’s option), and hold harmless Zendesk 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. Zendesk shall only indemnify, defend, and hold harmless Supplier from and against third-party Claims to the extent the Claims are due solely to Zendesk’s gross negligence or intentional misconduct. Supplier shall have no liability for Zendesk’s use of Goods or Deliverables outside the scope set forth in a Purchasing Document.
16. 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 $2 Million U.S. Dollars per occurrence. Upon Zendesk’s request, Supplier shall provide Zendesk with a certificate of insurance evidencing such insurance coverages and shall have Zendesk named as an additional insured on such liability policy. Supplier shall not cancel or allow the lapse of such insurance coverage and upon Zendesk’s request shall provide a certificate stating that same shall not be cancelled without at least thirty (30) days’ prior written notice to Zendesk.
17. Limitation of Liability IN NO EVENT SHALL ZENDESK 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, THE ZENDESK’S AGGREGATE LIABILITY TO SUPPLIER ARISING OUT THESE TERMS, UNDER ANY THEORY, SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY THE ZENDESK TO SUPPLIER UNDER THESE TERMS IN THE TWELVE (12) MONTHS LEADING UP TO THE CLAIM.
18. 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 Zendesk’s reasonable request for copies of such records. Upon reasonable prior notice, Zendesk (or an independent third party designated by Zendesk) 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 Zendesk 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 Zendesk’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 Zendesk shall be governed by the confidentiality terms described in Section 14 (Confidentiality) above. All review or audits conducted by Zendesk’s third party designee shall be governed by a confidentiality agreement between Supplier and Zendesk’s third party designee, which shall be the standard confidentiality agreement of such third party designee.
19. Term A Purchasing Document shall continue in force until the later of (a) completion of the Services; or (b) expiration of all warranties for Goods or Deliverables. A Purchasing Document for Goods may be terminated or cancelled by Zendesk, 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 Zendesk, 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 Zendesk, 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 Zendesk. A Purchasing Document for Services and/or Deliverables may be terminated by Zendesk, in whole or in part, immediately upon Supplier’s incurable breach. Upon the effective date of termination by Zendesk, Supplier shall: (a) immediately cease all work under the Purchasing Document and Zendesk shall be liable for payment only for authorized work completed as of the date of termination; and (b) provide Zendesk with any and all work in progress or completed work under the Purchasing Document. If Zendesk 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 Zendesk 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 Zendesk in writing within thirty (30) days after receipt of Zendesk’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, Zendesk shall be entitled to all work and Goods for which Zendesk has made payment. Zendesk reserves the right to inspect Supplier’s work and Goods in process and to audit all relevant documents prior to paying Supplier’s claim.
20. 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 Zendesk 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.
21. Vendor Manager Zendesk 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.
22. 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 Zendesk 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 Zendesk property.
23. 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.
24. 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 Zendesk 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 a Purchasing Document, unless the conflicting terms are in a Purchasing Document signed by Zendesk and Supplier and labeled as “Modified Terms”. Any terms, conditions or provisions of any Supplier quotation, confirmation, order acknowledgement, invoice, or other commercial document sent to Zendesk 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 be amended by a written document executed by both parties. A purchase order issued by Zendesk may also be amended through the issuance by Zendesk 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 Zendesk 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 Zendesk acknowledge that they have read these Terms and have had the opportunity to review it with an attorney of their respective choice. Supplier and Zendesk 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.
25. 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, Zendesk may, at its option, terminate the Purchasing Document immediately by written notice to Supplier.
26. 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 Zendesk shall be addressed to: Attn: General Counsel Zendesk, Inc., Attn: Legal Department, 1019 Market St., San Francisco, California 94103 U.S.A
27. 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 Zendesk, 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 Zendesk.
28. 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.