Vendor Master Terms and Conditions (VMTC)
These Vendor Master Terms and Conditions (including all online terms referenced in and/or linked to these online terms, “Vendor Master Terms and Conditions” or “Vendor MTC”) are entered into by and between Oath Inc., and its Affiliates, including Oath Holdings Inc. Oath (Americas) Inc. (“Oath”), and Vendor as of the Start Date. Except for terms defined in the body hereof, capitalized terms used herein are defined in Section 14 of these Vendor Master Terms and Conditions.
- SCOPE OF AGREEMENT. The Agreement sets forth the terms and conditions under which Vendor will provide Services. All SOWs, Change Orders, SLAs, PLSSs, and POs will be governed by the Vendor MTC. In the event of an express and direct conflict between the terms of these VMTC and the terms of the agreement for Services between Oath and Vendor, the terms of the agreement will control. Any Oath Company will be entitled to purchase Services under the Agreement by submitting a PO and/or executing an SOW, as applicable. Notwithstanding any independent references to “Oath” herein, Affiliates will have the rights of Oath under the Agreement to order or purchase Services and to enforce all rights and obligations with respect to any such order or purchase; provided, however, that Oath and Affiliates will be independently responsible for their respective purchase and/or use of Services.
- Ordering. Oath will issue a PO for Services. Vendor agrees not to provide any Services unless Oath issues a PO for such Services. Oath makes no representations to Vendor as to the frequency of POs or the scope of Services that may be ordered. Any modifications to a PO must be in writing and pre-approved by Oath in writing.
- Price Listed Services. If Vendor offers any Price Listed Services, Vendor will provide Oath written notice of such Price Listed Services, and Vendor and Oath may enter into a PLSS. The prices indicated on a PLSS will remain fixed throughout the Term and will not be subject to increase, unless the Parties execute an updated PLSS. For Services ordered pursuant to a PLSS, Vendor will deliver the ordered Services on or before the delivery date set forth in the applicable PO, or if no delivery date is set forth in the PO, then within ten (10) days of the PO date.
- Statements of Work. Upon Oath’s request for Services that are not Price Listed, Oath will issue a PO or the Parties will sign an SOW, as applicable.
- Service Level Agreement. The Parties may adopt an SLA as specified in an SOW, PO or at any time by written agreement. Once an SLA is adopted, the SLA cannot be amended, terminated or revoked except by a written amendment to the Agreement signed by the Parties. Unless otherwise stated in the SLA, Vendor will inform Oath, within one (1) business day, of any failure to meet any SLA. Vendor will issue Oath service level credits, if any, set forth in the applicable SLA (“SLA Credits”). Oath may apply any SLA Credits to any charges otherwise payable to Vendor by Oath.
- Personnel. Vendor agrees: (i) to assign Personnel qualified to perform the Services; (ii) to maintain sufficient staffing levels to ensure Services are performed within the timeframes specified in the Agreement and at the performance levels in the SLAs; and (iii) Personnel will be supervised and controlled by Vendor. In addition, Vendor is solely responsible for: (1) the acts and/or omissions of Personnel; (2) payment of all Personnel compensation, including all legal and contractual benefits; (3) withholding any and all appropriate taxes; and (4) complying with any federal, state or local employment Laws as well as any other employer duties and obligations.
- Subcontractors. Vendor will not subcontract the Services, in whole or in part, without Oath’s prior written approval. Vendor agrees to: (i) impose on Subcontractors obligations consistent with the terms of the Agreement; and (ii) ensure that Subcontractors comply with the Agreement. Vendor’s use of any Subcontractor will not relieve, waive, or diminish any obligation Vendor has under the Agreement. Vendor is solely responsible for the acts or omissions of Subcontractors. In addition, Vendor is solely responsible for the payment of any compensation due or allegedly due to Subcontractors, and Subcontractors may not seek payment (either directly or indirectly) from Oath. Vendor agrees to keep the Site and all other real and personal property in which Oath holds an interest free and clear of any and all liens and claims of such subcontractors, laborers, and suppliers; and if any such lien shall be filed at any time during the term of this Purchase Order, then Vendor shall, within ten (10) days of the date of receiving written notice of the filing of such lien, discharge, remove or bond off such lien to Oath’s satisfaction. Until such discharge or removal, Oath shall have the right to withhold from any sums payable under this Purchase Order any amount, which Oath deems appropriate to pay such lien and to pay all related costs and expenses, including attorney fees, and Vendor shall be liable to Oath for all such costs and expenses.
- Removal. Oath may request removal and/or replacement of any Personnel or Subcontractor upon notice to Vendor. Upon such request, Vendor will immediately remove such Personnel or Subcontractor from performing Services under the Agreement and promptly replace such Personnel or Subcontractor with other Personnel or Subcontractor reasonably acceptable to Oath. Removal of any Personnel will not relieve, waive, excuse, or diminish any obligations Vendor has under the Agreement.
- Inspections. Upon notification, Vendor will, within ten (10) business days or any less time required by Law, allow Oath, its auditors (including internal audit staff and external auditors), inspectors, regulators and other representatives, to visit Vendor’s facilities and inspect all records of Vendor (as well as Vendor’s affiliates and Subcontractors) that are held or maintained in connection with the Agreement, and Vendor’s facilities that will be or are used in the course of Vendor’s performance of the Agreement for the purpose of performing audits and inspections of Vendor during the term of this Purchase Order and for the period Vendor is required to maintain Records hereunder. Each Party will bear its respective costs associated with such inspection. Vendor shall provide to such auditors, inspectors, regulators and other representatives such assistance as they require, including installing and operating audit software. To the extent any audit report identifies overcharges or negative variances relating to Vendor's performance under this Purchase Order, Vendor shall promptly refund the amount of any such overcharge to Oath and otherwise promptly take those actions necessary to correct any negative variance.
- Financial Information. Vendor represents, warrants, and covenants that Vendor has the financial viability to fulfill its obligations under the Agreement. In addition, Vendor will provide prompt written notice to Oath of any event or condition that results in, or is reasonably likely to result in, a material adverse change to Vendor’s financial condition, reputation or operation.
- Equipment and Services. Vendor, at its sole cost and expense, will provide all Information Systems, equipment, materials and/or facilities, as well as any support and maintenance of any of the foregoing, as necessary for its performance of the Agreement.
- Hazardous Materials. If applicable, Vendor will: (a) provide notification to Oath if the Services include any material that is or can be hazardous to a person’s health or physical safety, even such hazard or injury that may result due to mishandling; (b) identify each such hazardous or injurious material; and (c) supply warning labels or instructional material appropriate to warn persons coming in contact with any such hazardous material of the hazard and its effect.
- Vendor Code. Vendor will comply with the Supplier Code of Conduct at all times while performing the Services under this Purchase Order. www.verizon.com/about/our-company/supplier-diversity/supplier-code-of-conduct
- DELIVERY AND ACCEPTANCE
- Delivery. Vendor acknowledges that time is of the essence with respect to the delivery of all Services. Vendor will package and label all Deliverables in accordance with best commercial practices. Unless otherwise agreed by Oath in writing, all Deliverables will be delivered F.O.B. to the destination in the PO or SOW. Unless expressly agreed to in writing by Oath, Vendor will pay all costs associated with shipping Deliverables, if any, including shipping, customs duties, and clearance. Risk of loss will pass to Oath upon Oath's receipt, inspection, and acceptance of Deliverables, as set forth in Section 3.2.
- Inspection, Testing, and Acceptance. Oath has thirty (30) days from the receipt of a Deliverable (“Acceptance Period”) to inspect, test, and accept or reject such Deliverable in writing. Vendor will provide (at no additional cost to Oath) such assistance as Oath may reasonably require while inspecting and testing any Deliverable. Oath may reject any Deliverable that Oath determines: (a) does not conform to the PO and/or the SOW and/or any Documentation; or (b) contains defects in materials or workmanship (collectively “Acceptance Criteria”). If Vendor is unable to correct a non-conforming Deliverable, at no additional cost to Oath, within ten (10) days of notification of non-conformance, Oath will, at its option: (i) be entitled to a refund of all fees, costs and expenses incurred in connection with such non-conforming Deliverable(s); or (ii) be entitled to offset or adjust payments for such non-conforming Deliverable(s) against current or future payments to Vendor. If Oath requires an extension to evaluate any Deliverable, Oath and Vendor will work in good faith to agree upon a reasonable extension. If Oath fails to request an extension and/or does not provide written notice of acceptance or rejection by the end of the Acceptance Period, then the Deliverables subject to that Acceptance Period will be deemed rejected. For purposes of this Section 3.2, Oath may provide notice via email or fax. Neither Oath’s acceptance nor rejection of any Deliverable will relieve, waive, or diminish any obligation Vendor may have under the Agreement.
- Change Order. Either Party may request, in writing, revisions to a PO or an SOW (“Change Order”). Vendor will not commence and/or furnish any Services pursuant to a Change Order until Oath has signed the Change Order and/or Oath has issued a revised PO for such Change Order. Oath will not be responsible for any fees or costs incurred by Vendor or any permissible Subcontractor under a Change Order not signed by Oath.
- COMPENSATION AND PAYMENT TERMS
- Compensation. Subject to Vendor’s compliance with the Agreement, Oath will pay Vendor for Services that have been accepted pursuant to Section 3.2, above, based upon: (i) the prices and terms set forth in the applicable: (1) SOW, or (2) PO, and (ii) the terms of this Section 4. Vendor will promptly invoice Oath upon completion of Services or a project milestone as outlined in the Agreement, but in no event later than ninety (90) days following Oath’s acceptance of the Services or project milestone, as outlined in Section 3.2, above. Payment for any accepted Services will be made ninety (90) days after Oath’s receipt and approval of an undisputed invoice referencing the applicable PO number and itemizing all of Vendor’s fees and charges for such accepted Services; provided, however, that Oath reserves the right to apply an early payment discount of two percent (2%) of the invoiced amount, if Oath pays the undisputed portion of the invoice within ten (10) days after invoice receipt and approval.
- Purchase Orders. All invoices must be submitted as set forth in the applicable Purchase Order. In certain cases, Vendor may elect, or Oath may require, payment through automated payment processing, in which event Vendor will promptly complete and deliver the proper ACH form to Oath.
- Payment Disputes. Oath may withhold payments for any item(s) on Vendor’s invoice that Oath reasonably disputes. Pending resolution of the dispute(s), Oath’s non-payment of disputed items will not constitute a default and will not entitle Vendor to suspend or delay furnishing Services or terminate the Agreement, in whole or in part.
- Payment Errors. If Vendor incorrectly applies Oath’s payment (in whole or in part) to a PO number other than to the PO number referenced by Oath for the applicable Services, Vendor will promptly apply such payment to the correct PO and issue a written confirmation of such correction to Oath.
- Late Delivery. To the extent that Vendor fails to furnish Services by the applicable delivery date or performance schedule, Oath will be entitled to a five percent (5%) discount off the total fees for the applicable late delivery/performance. Such discount will be refunded to Oath or, at Oath’s option, credited against future amounts owed, if any.
- Costs and Expenses. Vendor will not be entitled to reimbursement for any cost or expense unless the cost or expense: (a) is set forth in the applicable PO or SOW; (b) if for travel or accommodations, was incurred consistent with the Travel Policy; (c) is detailed on the corresponding invoice and accompanied by supporting documentation; (d) is billed at cost; and (e) was previously approved by Oath in writing. All cost and expense items that meet the foregoing criteria will be paid in accordance with Section 4.1, above. Any cost or expense item that does not satisfy the foregoing criteria will not be reimbursed.
- Taxes. All prices quoted to Oath pursuant to this Agreement do not include, and Oath shall pay, all applicable federal, state and local sales and use taxes, except any taxes or tax-like charges determined by or related to Vendor’s income, net worth, franchise, property or employees (which shall be borne solely by Vendor) (“Tax(es)”), provided such Taxes are due by law from a purchaser of the goods and/or services hereunder and properly invoiced and separately stated in accordance with applicable law at the time the goods services and/or services are invoiced. If an exemption procedure is available, such as a resale exemption certificate, and Oath complies with such procedure, then Vendor will not invoice or collect such Tax during the effective period of the exemption provided Oath has supplied Vendor, and Vendor has accepted, a valid, duly executed exemption certificate. Vendor will bear any and all financial responsibility for Tax, interest and penalties resulting from its failure to comply with applicable law. If any payment to be made in respect of any invoice is subject to the law of any foreign tax jurisdiction to any withholding tax, Oath shall make payment to Vendor of the amount owing on the invoice, less a deduction for the withholding tax, and shall account to the relevant tax authority for the withheld tax. Payments of the net sum to Vendor and the withholding tax to the relevant tax authority shall constitute, for purposes of this Agreement, full settlement of the amount owing under the invoice.
“Oath Confidential Information” means any information disclosed by any Oath Company to Vendor, either directly or indirectly, in writing, orally, or by inspection of tangible objects that is designated as “Confidential,” “Proprietary,” or some similar designation. Notwithstanding the foregoing, Oath Confidential Information includes the terms of the Agreement and Oath Data, and may also include information disclosed to Oath or an Affiliate by third parties. “Vendor Confidential Information” means any information disclosed by Vendor, either directly or indirectly, in writing or by inspection of tangible objects that are designated as “Confidential,” “Proprietary,” or some similar designation. “Confidential Information” means Oath Confidential Information and/or Vendor Confidential Information in context as applicable to the receiving or disclosing Party. Confidential Information will not, however, include any information which: (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing Party; (b) becomes publicly known and made generally available after disclosure by the disclosing Party through no action or inaction of the receiving Party; (c) is already in the possession of the receiving Party at the time of disclosure by the disclosing Party as shown by the receiving Party’s files, records, and/or other competent evidence immediately prior to the time of disclosure; (d) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; or (e) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information, as shown by documents and other competent evidence in the receiving Party’s possession. The receiving Party will not at any time (i) disclose, sell, license, transfer, or otherwise make available to any person or entity any Confidential Information of the disclosing Party (except to disclose or make available, in Vendor’s case, to Personnel and Subcontractors, who have a legitimate need to know such Confidential Information, and in Oath’s case, the Oath Entities), or (ii) use, reproduce, or copy any Confidential Information of the disclosing Party, except as necessary in connection with or as set forth in the Agreement. All Confidential Information will remain the disclosing Party’s property and all documents, electronic media, and other tangible items or portions thereof, which contain Confidential Information of the disclosing Party will be delivered to the disclosing Party promptly upon the disclosing Party’s written request. Notwithstanding the foregoing, Oath will not be required to remove copies of Vendor’s Confidential Information from any backup media or servers. Nothing contained in the Agreement will prevent Vendor or a Oath Company from complying with applicable privacy and/or data protection Laws. The receiving Party may disclose Confidential Information of the disclosing Party in connection with subpoenas, court orders, other legal processes, or as otherwise required by Law, provided that the receiving Party gives the disclosing Party prompt written notice of such requirement (unless expressly prohibited in writing in such subpoena, court order, or other legal process) prior to such disclosure and takes reasonable steps to protect the Confidential Information from public disclosure, and provided further that any such disclosure is limited to the minimum extent necessary to comply with the legal requirement. Neither Party will issue or make, directly or indirectly, any press releases or other public announcements relating to the Agreement or the underlying transaction(s) between Oath and Vendor without the prior written approval of the other Party. Each Party reserves the right to withhold approval in its sole discretion.
- SITE ACCESS AND DATA SECURITY
- Site Access. If Services are to be performed at a Site, Oath will permit Vendor reasonable access to the applicable Site(s) subject to the terms of this Section 6 and the Site Access Policies. Vendor will provide Oath a list of all Personnel and Subcontractors (including all Subcontractor personnel) that require access to the Site(s) and will maintain a current list, which will be available to Oath at all times. Any Personnel or Subcontractor failing a background investigation, as required under Section 6.5, below, will be denied access to any Site. In the event Vendor is granted Site access, Vendor represents, warrants, and covenants that Vendor will perform its obligations without interfering with Users or Oath’s operations in or around the Site(s).
- Identification Badges. All Personnel and Subcontractors working at a Site will wear a visible Oath issued identification. Immediately upon the termination of Personnel and/or Subcontractor who worked at a Site, Vendor will promptly provide written notice to the Oath Security Office, and return all security badges and access cards issued to Vendor for such Personnel and/or Subcontractors. Vendor will pay Oath a fee of one hundred dollars ($100.00) (or the foreign equivalent thereof) for each non-returned or lost security badge or access card. Oath reserves the right to charge Vendor for expenses incurred by Oath in recovering any security badge or access card.
- Network and Data Security.
- If any Network-Data Communication occurs in connection with the use or performance of the Services: (i) such Network-Data Communication will be limited solely to Vendor’s performance of its obligations; and (ii) Vendor represents, warrants, and covenants that it will (and will cause its Subcontractors to) comply with the Network Security Terms. “Network-Data Communication(s)” means: (1) any Vendor-hosted interface which Oath or Users access; (2) any access to Oath’s Information Systems; (3) any access, communication, contact, or interconnection/between the information systems of Oath and Vendor; (4) any access/exposure to or communication of Oath Data, including any code or Intellectual Property; or (5) any Vendor access to any Site. “Network Security Terms” means Oath’s network security terms located at: https://policies.oath.com/us/en/oath/terms/vendor/networksecurity/index.html, which are incorporated herein by this reference and may be updated from time to time.
- As between Oath and Vendor, Oath Data, collected, used, or stored by Vendor will be the sole and exclusive property of Oath. If Oath requests that Vendor complete and sign an updated Vendor data security disclosure form, Vendor will provide such disclosure form in the form and substance requested by Oath within five (5) days of Oath’s request, and any such Vendor data security disclosure form will be treated as Confidential Information.
- User Data.
- Vendor represents, warrants and covenants that: (i) Vendor will not collect, use, or disclose in connection with the Agreement any Personal Information without Oath’s prior express written consent; (ii) any collection, use, or disclosure of Personal Information will comply with the Agreement and all Laws; (iii) any collection, use, storage or transference of Personal Information, expressly authorized under the Agreement, will be solely for and/or on behalf of Oath and not for or on behalf of Vendor (or its agents, subcontractors, or suppliers), and Vendor will not, at any time for any reason, collect, use or disclose any Personal Information except as necessary for the purpose of carrying out its duties as specified in the applicable PO or SOW; (iv) Vendor will not knowingly collect or accept information from children under the age of thirteen (13); (v) Vendor will not, without the prior written consent of Oath, transmit or provide access to Personal Information to any facility outside the United States; and (iv) to the extent that the PO or SOW relates to any Personal Information from Users located in the European Union, Vendor will provide at least the level of privacy protection as is required by the applicable laws and comply with the terms of the Data Processing Agreement located at https://policies.oath.com/us/en/oath/terms/vendor/dataprocessingagr/index.html, which shall be deemed to form part of these VMTCs in such event.
- If Vendor receives any inquiry or complaint relating to Personal Information, Vendor will immediately notify Oath in such form and manner, and with such particulars, as Oath may require. If Oath notifies Vendor that it requires assistance in investigating or responding to the inquiry or complaint, Vendor will fully cooperate with Oath by furnishing it with complete information concerning its collection, use and disclosure of the Personal Information, including responding, if requested to do so, to any inquiry by a regulatory authority and/or to any complaint. If any inquiry or complaint gives rise to regulatory or court proceedings, Vendor will cooperate in the conduct of such proceedings, including attending hearings and assisting in securing and giving evidence and obtaining the attendance of witnesses.
- If a User requests or if Oath requests on behalf of any User that Vendor remove any Personal Information from Vendor’s databases and/or records, Vendor will promptly remove all such Personal Information from its databases and records and confirm such removal in writing.
- In the event of any termination of the Agreement, Vendor will immediately return to Oath, as directed by Oath, all Personal Information held by Vendor pursuant to the Agreement.
- Background Checks. Vendor, and its Personnel and Subcontractors performing Services or providing work under this Purchase Order, will undergo a background check (which may include criminal records and civil judgments, professional license verifications, motor vehicle records, social security number, court records, military service records, other public records reports, and verifications of employment and education) performed by a Oath-designated firm (at Vendor’s cost), prior to such Personnel or Subcontractor undertaking any action in connection with the Agreement, and all such individuals will sign Oath’s standard Non-Disclosure Agreement, agreeing to be bound by the confidentiality, non-disclosure and proprietary rights contained therein.
- Anti-Spam Policy. To the extent Vendor uses email in connection with the Services, Vendor will comply with Oath’s Anti-Spam Policy.
- Accessibility. Each information communication technology (“ICT”) furnished under a Purchase Order or SOW shall be accessible to and usable by individuals with disabilities in accordance with the 21st Century Video and Communications Act, the Americans with Disabilities Act (“ADA”) and other applicable Federal and State laws. ICT includes all technologies used for information or communication purposes, including but not limited to, software (including cloud software and services), mobile apps, websites, computers, mobile devices (such as tablets, cellular phones and wearable devices), telecommunications and messaging systems, websites, and electronic documentation and training material. For purposes of this clause, Vendor shall be considered in compliance with the foregoing if Vendor satisfies the requirements (including exceptions) specified in the regulations [36 CFR Part 1194] implementing Section 508 of the Rehabilitation Act, including the Web Content Accessibility Guidelines (WCAG) 2.0 Level A and Level AA Success Criteria and Conformance Requirements (2008), which are incorporated herein by reference, and the functional performance criteria. Vendor shall maintain and retain, subject to review by Oath, full documentation of the measures taken to ensure the ICT is in compliance with the applicable requirements and functional performance criteria, including records of any functional and user testing or simulations conducted. If Vendor claims its ICT satisfies the applicable requirement and standards, and it is later determined by Oath that any ICT is not in compliance with such requirements and standards, Oath will promptly inform Vendor in writing of the noncompliance, and Vendor shall, at no cost to Oath, repair or replace the non-compliant ICT within the time period specified by Oath. If Vendor fails timely to make the repair or replacement, Oath may, in addition to any other rights or remedies: (a) cancel the Purchase Order (or the specific deliverable) without termination liabilities and/or (b) perform, or have performed any necessary changes or repairs, and Vendor shall promptly reimburse Oath (or Oath may credit against any sums due Vendor) the amount of any expenses incurred thereby.
- Vendor Property.
- Disclosure of Vendor Property. Vendor and/or Vendor’s licensor(s) retain all rights, title and interests they possessed in any Vendor Property that may be used by Vendor in connection with the Agreement. “Vendor Property” means Intellectual Property that Vendor can provide reasonable documentary evidence that Vendor owned, controlled or validly licensed. Vendor represents, warrants and covenants that all Vendor Property: (i) was independently developed by Vendor without benefit, use, or inclusion of any Oath Property, (ii) was owned by Vendor and/or owned by and validly licensed from a third party and (iii) is not protected under a duty of confidentiality to a third party. If Oath requests that Vendor complete and sign a Vendor Property disclosure form, Vendor will provide such disclosure form in the form and substance requested by Oath within five (5) days of Oath’s request.
- License to Vendor Property. For Vendor Property incorporated into, required for use of, or provided with any Deliverables, Vendor grants to the Oath Entities, on behalf of itself and its licensors, a worldwide, perpetual, irrevocable, royalty-free, fully paid up license under all Intellectual Property Rights to use, modify, reproduce, sell, license, sublicense, display, disclose, publish, produce derivative works of or otherwise disseminate, distribute or transfer the Vendor Property for any Oath Entities’ business purposes.
- Deliverables. Oath is the sole and exclusive owner of all Deliverables, including all Intellectual Property Rights therein, regardless of whether such Deliverables are specified in any PO, SOW or PLSS. All Deliverables will be deemed a “work made for hire” as defined in Section 101 of the United States Copyright Act (as amended). To the extent that title to any of the Deliverables does not vest in Oath as the author or such works may not be considered “works made for hire,” all rights, title and interest therein, including all Intellectual Property Rights, are hereby irrevocably assigned and transferred to Oath by Vendor, and Vendor hereby irrevocably and unconditionally waives all enforcement of such rights. All such Deliverables will belong exclusively to Oath, with Oath having the right to obtain and to hold in its name and/or the name of its Affiliates, any and all Intellectual Property Rights. For purposes of this paragraph, Deliverables shall not include the Services or any improvements, modifications or derivatives of the Services; but shall mean any material developed by Vendor hereunder which is specifically related and unique to a Oath project or which incorporates Oath’s Confidential Information.
- Assignment of Rights. Vendor will require and cause its Personnel and Subcontractors to assign to Vendor all materials prepared and/or developed by such Personnel and Subcontractor pursuant to the Agreement. Vendor agrees to give Oath and any person designated by Oath, reasonable assistance, at Oath’s expense, required to perfect the rights granted pursuant to the Agreement. Upon the earlier of the completion of the Services or the termination of the Agreement, Vendor will immediately turn over to Oath all materials related to the Services and/or all Deliverables pursuant to the Agreement.
- Rights in Bankruptcy. All rights and licenses granted by Vendor pursuant to the Agreement will be deemed to be, for purposes of Section 365(n) of the Bankruptcy Code, 11 U.S.C. § 101 et seq., licenses of rights to “intellectual property” as defined under Section 101(35A) of the Bankruptcy Code, and software is, and will be deemed to be, “embodiment[s]” of “intellectual property” for purposes of same. Oath will retain and may exercise all of its rights and elections under the Bankruptcy Code or equivalent legislation in any other jurisdiction. Without limiting the generality of the foregoing, Vendor agrees that the rights and licenses granted to Oath will not be affected by Vendor’s rejection of the Agreement in bankruptcy, and will continue to be subject to the Agreement. Upon Vendor’s filing of a bankruptcy petition (or an involuntary filing), Oath will be entitled to a complete duplicate of (or complete access to, as appropriate) any such intellectual property concerning the Deliverables furnished by Vendor, and such Deliverable, if not already in Oath’s possession, will be promptly delivered to Oath.
- Oath Trademark. Vendor is not authorized to use and agrees it will not use any Oath Company trademark(s), logo(s), service mark(s), trade name(s), and/or legal notice(s) (collectively, “Oath Marks”); provided, however, in the event use of any Oath Mark is required to perform the Services, the Parties agree as follows: subject to Vendor’s strict compliance with the Agreement and Oath’s trademark license terms https://policies.oath.com/us/en/oath/terms/vendor/trademarklicense/index.html which are incorporated herein by this reference and may be updated from time to time, Oath grants Vendor a limited, revocable, non-exclusive, non-assignable, non-transferable, non-sublicensable, royalty-free license, for the SOW Term (if applicable) or until completion of the Services ordered in connection with a PO, to use the designated Oath Marks in the form delivered by Oath, only for the territory in which Services will be delivered, and only as essential and necessary to perform Services. All rights, title, and interests in the Oath Marks and the goodwill pertaining thereto are the exclusive property of the applicable Oath Company.
- Acknowledgement of Rights. The applicable Oath Company retains exclusive ownership of all right, title and interest in and to the Oath Property. Vendor will not, at any time during or after the Term, dispute or contest, directly or indirectly, the applicable Oath Company’s exclusive rights and title in the Oath Property.
- Vendor Property.
- REPRESENTATIONS AND WARRANTIES
- Warranties. Vendor represents, warrants, and covenants for itself and each of its Subcontractors that: (i) it and its Subcontractor(s) is/are a validly existing business entity, duly licensed and qualified to carry on its business/operations and perform its obligations; (ii) it and its Subcontractor(s) has/have all rights, licenses, permits, qualifications and consents necessary to perform its and/or their respective obligations; (iii) it and its Subcontractor(s) will comply with all Laws; (iv) its and its Subcontractor(s)’ performance under the Agreement does not and will not violate or cause a breach of the terms of any other agreement to which it is a party; (v) it and its Subcontractor(s) is/are not in default of any other agreement and there are no proceedings threatened or pending under order of any court, arbitrator, administrative agency or other authority, which would affect performance of the Agreement; (vi) there are no undisclosed collective bargaining agreements or other labor agreements to which it or its Subcontractor(s) is a party or by which it or its Subcontractor(s) is bound; (vii) there is and has been no unfair labor practice complaint against it or its Subcontractor(s); (viii) neither the Services nor any Vendor Property, nor any combination thereof with any Oath Property, infringes or misappropriates the Intellectual Property Rights of any third party; (ix) the Services and the media on which the Services are performed and/or delivered will be free of viruses, Trojan horses, trap doors, backdoors, Easter eggs, logic bombs, worms, time bombs, cancelbots, and/or other computer programming routines that may potentially damage, interfere with, intercept, disable, deactivate, or expropriate any Oath Company or User’s Information System(s); (x) it and its Subcontractor(s) will deliver and perform all Services in a professional and workmanlike manner in accordance with standards generally accepted in Vendor’s industry; (xi) Deliverables furnished hereunder are and will be: (a) new and free from defects in design, materials and workmanship; (b) of merchantable quality and fit for the purposes for which they are intended; and (c) free and clear of all liens, claims and encumbrances; (xii) it and its Subcontractors has/have all rights, licenses, permits, qualifications and consents necessary to grant Oath ownership and use of the Deliverables, and delivery to Oath of all rights and licenses in and to the Deliverables does not violate any Laws; (xiii) Services will conform with the Agreement and any Documentation; and (xiv) it and its Subcontractor(s) will take all necessary precautions to prevent injury to any person or damage to any property while performing Services.
- Remedies. If the Services do not comply with Section 8.1(viii), above, in addition to any other remedies Oath may have, Vendor will in the following order (at Vendor’s sole cost and expense): (a) procure for the Oath Companies the right to continue using the affected Services; (b) if applicable, replace the affected Services with conforming and/or non-infringing Services at no cost to Oath; (c) modify the affected Services so that such Services conform or become non-infringing without detracting from their functionality or performance; or (d) if the foregoing alternatives are not commercially available, within fifteen (15) days, refund to the Oath Companies all fees paid to Vendor for such non-conforming or infringing Services.
Vendor will indemnify, defend and hold harmless the Oath Entities from all costs and claims asserted by a third party, whether actual or alleged, that arise out of or in connection with the Services, including: (a) personal injury, death, or property damage; (b) theft; (c) negligent or intentional misconduct; (d) Vendor’s breach of the Agreement or a violation of applicable Law; and (e) payments to any Personnel and/or Subcontractor(s) (collectively “Claim(s)”). Oath will (at Vendor’s sole expense) reasonably cooperate to facilitate the settlement or defense of such Claim. Vendor is solely responsible for defending any Claim against a Oath Entity, subject to such Oath Entity’s right to participate with counsel of its own choosing at its own expense, and for payment of all judgments, settlements, damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees, resulting from all Claims against a Oath Entity; provided however, that Vendor will not agree to any settlement that imposes any obligation or liability on a Oath Entity without such Oath Entity’s prior express written consent.
- Coverage. Vendor will obtain and keep in effect, at Vendor’s expense, insurance coverage as follows: (a) commercial general liability insurance, on an occurrence policy form, with policy limits equal to or greater than $1,000,000 per occurrence for bodily injury and property damage and $2,000,000 general aggregate, covering operations by or on behalf of Vendor, including coverage for: (i) premises and operations, (ii) products and completed operations, (iii) contractual liability, (iv) personal injury liability/advertising injury and (v) liquor liability insurance if applicable; (b) (if Vendor has access to Oath’s financial systems or any financial data), fidelity and commercial crime insurance, naming Oath (i.e., as applicable Oath Inc. / Oath Holdings, Inc. etc.) as a Loss Payee, with policy limits equal to or greater than $250,000; (c) professional liability/, errors and omissions and cyber liability insurance if applicable, with policy limits equal to or greater than $3,000,000 each claim; coverage to include the following: defamation, copyright infringement, trademark, and trade dress, loss of data, invasion of privacy, network security liability, theft, unauthorized disclosure, alteration, corruption, destruction or deletion of information stored or processed on a computer system, the failure to prevent the transmission of malicious code or malware (intentional or unintentional), remediation expenses, and infringement upon materials used in the project or provision of services (professional liability insurance is required only for those vendors providing a professional service) (d) automobile liability insurance, covering all owned, hired and non-owned automobiles with policy limits equal to or greater than $1,000,000 combined single limit each accident for bodily injury and property damage; (e) workers' compensation as required by Laws and employer's liability insurance with policy equal or greater than $1,000,000 combined single limit for each accident for bodily injury by accident, $1,000,000 each employee for bodily injury by disease policy limit and $1,000,000 policy limit by disease; (f) umbrella liability insurance, on an occurrence policy form, with policy limits of $5,000,000 per occurrence and in the aggregate; and (g) such other liability insurance coverage and policy limits, as may be requested by Oath.
- Certificates and Policies of Insurance. A Certificate of Insurance evidencing all required coverage, limits and endorsements must be furnished to Oath before Vendor provides any Services, and annually thereafter upon expiration of policies, throughout the Term of the Agreement. Vendor will endeavor to provide Oath thirty (30) days' prior written notice of cancellation or intent not to renew any insurance coverage(s) required to be maintained by the Agreement. All insurance policies will be written by financially viable companies rated by A. M. Best as A-VII or better and duly licensed and authorized to do business in the state, province or territory in which service is provided. Oath shall be named as an additional insured under Vendor’s policies for commercial general liability, automobile liability and umbrella insurance, waiver of subrogation shall apply in favor of Oath, with respect to all required policies. Vendor's liability policies shall be primary and non-contributory with any insurance or program of self-insurance that may be maintained by Oath. Vendor agrees to indemnify and hold Oath harmless for covered losses and/or occurrences that fall within any applicable deductible if such losses are Vendor's responsibility under the Agreement. Certificates of insurance will be mailed to: Oath Inc., Procurement Department, 701 First Avenue, Sunnyvale, CA 94089.
- Continuation of Insurance. Vendor will keep all liability insurance coverage required by the Agreement in effect for at least four (4) years after the expiration or termination of the Agreement.
- Obligations. In no event will the insurance coverage, deductible, self-insured retention or limits of any insurance maintained by Vendor under the Agreement, or the lack or unavailability of any other insurance, limit or diminish in any way Vendor’s obligations or liability to Oath under the Agreement.
- LIMITATION OF LIABILITY
EXCEPT FOR A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS IN SECTION 5, ABOVE, VENDOR’S BREACH OF SECTIONS 6, 7 AND/OR 8.1(ix), ABOVE, AND VENDOR’S INDEMNIFICATION OBLIGATIONS IN SECTION 9, ABOVE, IN NO EVENT WILL VENDOR AND/OR ANY OATH ENTITY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT. FURTHER, IN NO EVENT WILL OATH’S AGGREGATE CUMULATIVE LIABILITY TO VENDOR SHALL EXCEED THE AMOUNT PAID OR TO BE PAID TO VENDOR FOR THE PROVISION OF THE SERVICES OR FOR SUPPLY OF ANY GOODS UNDER THE APPLICABLE ORDER, SOWS OR CHANGE ORDERS.
- TERM AND TERMINATION
- Term. These Vendor Master Terms and Conditions will commence upon Acceptance by Vendor as set forth in Section 13.16 and unless sooner terminated pursuant to Section 12.2 below, will continue to remain in full force and effect for all outstanding SOWs, Change Orders and POs until such time as all of such agreements expire, are completed or terminated pursuant to the respective SOW, Change Order, PO, or the Vendor MTC.
- Termination. Either Party may terminate the Agreement by written notice to the other Party if the other Party breaches any material provision of the Agreement and such breach is not cured within thirty (30) days after written notice thereof is received by the other Party; provided, however, in the event that Vendor fails to meet the SLA requirements more than three (3) times in a calendar month, Oath may terminate the Agreement, in whole or in part, effective immediately without any Vendor right to cure. In addition, Oath reserves the right to terminate the Agreement or any portion thereof, with or without cause, upon thirty (30) days prior written notice to Vendor.
- Effect of Termination. Upon termination of the Agreement or the applicable SOW, PLSS, Change Order, or PO, in whole or in part, Oath, as its sole liability, will pay Vendor for: (a) Services completed and accepted; and (b) costs incurred and approved in writing by Oath, prior to the termination date. The termination of any SOW, PLSS, Change Order or PO, in whole or in part, will not automatically result in the termination of the Agreement. If Vendor performs any Services after the termination date of an SOW, PLSS, Change Order, or PO, in whole or in part, Oath will not be liable for any fees, costs, taxes or charges. Upon termination of the Agreement or any portion thereof, Vendor will: (i) provide the Services until the effective date of such termination (except as otherwise instructed in writing by Oath), terminate the Services in an efficient, workmanlike and cost-effective manner, and cooperate with Oath in the transition as requested by Oath; (ii) return to Oath all Oath Property; (iii) return to the Oath Security Office any security badges and access cards issued to Vendor; and (iv) within thirty (30) days of such termination, deliver to Oath, without any offset, a prorated refund of any prepaid fees, including any service or maintenance fees, together with a payment of any accrued SLA credits. Termination of the Agreement, in whole or in part, will not result in a termination of the applicable Vendor Property Disclosure or Oath’s rights under Section 7.1(b), above. Oath will not be responsible for any penalties, re-stocking fees, or similar charges resulting from its termination of any PO, SOW, PLSS, or Change Order.
- Survival. All of the following will survive the expiration or any termination of the Agreement: (a) Sections 4.1(a) (until any outstanding payment obligations are satisfied), 4.1(c), 5 through 11, 12.3, 12.4, 13 and 14 of these Vendor Master Terms and Conditions; and (b) any Vendor Property Disclosures.
- GENERAL PROVISIONS
- Notices. All notices will be in writing, and delivered by overnight courier or mailed, first-class postage prepaid, or sent by facsimile with confirmation of transmission, to the recipients as set forth below:
Oath Notice Addresses Oath Inc.
Vice President of Global Procurement & Contracts
701 First Avenue
Sunnyvale, CA 94089
With a copy to:
Attn: Deputy General Counsel for Transactions
22000 AOL Way
Dulles, VA 201663
Vendor Notice Address: at the address set forth on the applicable VMDT, PO, SOW, or PLSS. Except as provided in Section 12.2, above, all notices will be deemed received as follows: (a) one (1) business day after deposited with a nationally recognized overnight carrier service, such as FedEx; (b) five (5) days after the day deposited with the United States Postal Service; or (c) the day transmitted by confirmed facsimile transmission, if transmitted during normal business hours. Either Party may update its notice address by sending written notice of such change to the other Party as set forth in this Section.
- Assignment. By operation of law or otherwise, Vendor may not assign, sublicense, or transfer the Agreement or any right or duty under the Agreement, without Oath’s prior written consent; provided, however, that Vendor may assign the Agreement, in whole, to any third party in connection with any merger, consolidation, reorganization, liquidation, or sale of all or substantially all of the business or assets of Vendor upon thirty (30) days prior written notice to Oath. Notwithstanding the foregoing, if any such merger, consolidation, reorganization, liquidation, or sale of Vendor’s business or assets involves a competitor of Oath, Oath shall be entitled to terminate the Agreement with no further liability to Vendor. Any purported assignment or transfer of the Agreement in violation of this Section 13.2 will be null and void. Oath and any Affiliate of Oath, or their successors in interest, may assign, delegate, sublicense, convey or otherwise transfer (including by merger or operation of law) this Agreement, or the rights or obligations hereunder, in whole or in part, to any Affiliate(s) (or any successors in interest) of Oath without prior written consent or notice to the other Party. In the event of an assignment of all or part of this Agreement, or the rights or obligations hereunder, to any Affiliate(s) (or any successors in interest) of Oath, the term “Oath” as used in this Agreement shall be deemed to refer exclusively to any such Affiliate(s) (or any successors in interest) of Oath as a party to this Agreement.
- No Third Party Beneficiaries. Nothing contained in the Agreement is intended to, or will be construed to, confer upon any Personnel, Subcontractor, or other person or entity not a Party hereto (excluding Affiliates) any rights or benefits of any kind, and no such Personnel, Subcontractor, person, or entity will be deemed a third-party beneficiary under the Agreement. Notwithstanding the foregoing, the Oath Companies will be third-party beneficiaries to the Agreement and will be entitled to directly enforce, and rely upon, any provision in the Agreement which confers a benefit on, or rights in favor of, a Oath Company.
- Non-Restrictive Relationship. The relationship of the Parties is not exclusive. Nothing in the Agreement will be construed as preventing any Oath Company from independently developing or providing services which may be the same or similar to the Services.
- Independent Contractors. The Parties are independent contractors. Nothing herein will be construed as creating any agency, partnership, or other form of joint enterprise between the Parties, and neither Party may create any obligations or responsibilities on behalf of the other Party
- Waiver. No waiver by either Party of a breach of any provision hereof will be taken or held to be a waiver of any other breach of such provision or a waiver of the provision itself.
- Severability. If any provision(s) in the Agreement is held to be invalid, illegal or unenforceable, such invalidity, illegality, or unenforceability will not affect the other provisions of the Agreement. Moreover, if any provision(s) in the Agreement is held to be excessively broad as to duration, geographical scope, activity, or subject, it will be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the applicable Law.
- No Gratuity. Vendor represents, warrants, and covenants that no officer, director, or employee of Oath, or any of their immediate family members: (a) has received or will receive anything of value of any kind from Vendor; or (b) has a business relationship of any kind with Vendor.
- Anti Corruption Compliance. Vendor agrees to comply with the Foreign Corrupt Practices Act, UK Anti-Bribery Act, and other applicable anti-corruption laws. Vendor represents and warrants that neither Vendor nor any of its directors, officers, employees, agents, or other third parties performing services for or on behalf of Vendor will make or has made or offered, or caused to be made or offered, any bribe, payment, commission, gift, inducement, or anything of value, directly or indirectly, to anyone, including but not limited to: 1) any official or employee of any government or any agency or instrumentality thereof, including state-owned or state-sponsored businesses or public international organizations; 2) any political party, employee thereof, or any candidate for political office; 3) any individual who holds a legislative, administrative, judicial, or other public authority; or 4) any non-governmental entity in order to: influence any official act or decision related to the subject of this Agreement or the business of Oath, secure any improper advantage, obtain or retain business, or direct business to any person or entity in violation of applicable anti-corruption laws. Vendor agrees to keep complete, accurate records in relation to this Agreement and will make them available for inspection upon Oath’s request. Vendor agrees it will promptly report to Oath and cooperate in investigation of any potential or actual violation of any anti-corruption laws relating to this Agreement.
- Trade Compliance. Vendor agrees to comply with the export laws and regulations of the United States and trade controls of other applicable countries, including without limitation the Export Administration Regulations of the U.S Department of Commerce, Bureau of Industry and Security and the embargo and trade sanction programs administered by the U.S. Department of Treasury, Office of Foreign Assets Control. Vendor will not nor cause the export, re-export, resale, diversion, directly or indirectly, of any export-controlled items, software, or technology to any country or entity for which the Government of the United States or other applicable countries requires an export license or other governmental approval without first obtaining such license or approval. Vendor represents and warrants that neither Vendor nor its agents are identified on any government export exclusion lists, including but not limited to the U.S. Denied Persons, Entity, and Specially Designated Nationals Lists. Vendor will provide Oath with all information that may be required for trade compliance purposes, including applicable export control classification numbers and documentation substantiating U.S. and foreign regulatory approvals. Under the U.S. export controls, transfers of certain export-controlled software and technology to foreign nationals are treated as exports to the foreign nationals’ home countries (otherwise known as “deemed exports”) and may require export licenses. Vendor will comply with U.S export controls regulating deemed exports, will obtain all export licenses that may be required before releasing export-controlled software and technology to its foreign national personnel, and ensure that none of its personnel working under this Agreement are identified on U.S. Government export exclusion lists.
- Equal Employment. Oath may be considered a federal contractor or subcontractor, as defined by federal law. If Oath meets the definition of a federal contractor or subcontractor, Oath and Vendor agree that, as applicable, they shall abide by the requirements of 41 CFR 60-1.4(a), 41 CFR 60-300.5(a) and 41 CFR 60-741.5(a) and that these laws are incorporated herein by reference. 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. 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, protected veteran status or disability. Oath and Vendor also agree that, as applicable, they will abide by the requirements of Executive Order 13496 (29 CFR 471, Appendix A to Subpart A), relating to the notice of employee rights under federal labor laws.
- Force Majeure. A Party will be excused from a delay in performing, or a failure to perform, its obligations under the Agreement to the extent such delay or failure is caused by the occurrence of any contingency beyond the reasonable control, and without any fault, of such Party, which contingencies include acts of God, war, riot, power failures, fires, and floods (referred to as a “Force Majeure Event”). In such event, the performance times will be extended for a period of time equivalent to the time lost due to the Force Majeure Event. In order to avail itself of the relief provided in this Section 13.12, the affected Party must act with due diligence to remedy the cause of, or to mitigate or overcome, such delay or failure. For purposes of this Section 13.12, due diligence will, require Vendor to maintain a contingency and disaster recovery plan for the continuation of business so that despite any disruption in Vendor’s ability to fulfill its Services obligations from any particular location or through the efforts of any particular individuals, Vendor will be able to fulfill its Services obligations from an alternative/backup location.
- Governing Law; Jurisdiction; and Venue. The Agreement and any dispute relating thereto will be governed by the laws of the State of New York, without regard to conflict/choice of law principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement. Vendor agrees to submit to the exclusive jurisdiction of the state and federal courts located in New York, New York. Any claim against Oath will be adjudicated on an individual basis and will not be consolidated in any proceeding with any claim or controversy of any other party.
- Entire Agreement and Amendments. The Agreement constitutes the entire agreement between Oath and Vendor and supersedes any and all other agreements and understandings between Oath and Vendor, whether oral or written, with respect to the subject matter hereof. In the event of a conflict between the provisions of the Vendor MTC, and any PO, SOW, SLA, PLSS, or Change Order, the Vendor MTC will control. Notwithstanding the foregoing, a PO, SOW or Change Order may amend Sections 3, 4, or 10.1 of the Vendor MTC only if the amended terms contained in such a PO, SOW or Change Order: (i) apply only to the individual PO, SOW or Change Order and not to any other PO, SOW or Change Order, and (ii) specifically identifies the provision(s) of the Vendor MTC they amend. The terms and conditions on Vendor’s invoice, quotation or other document will not be binding and will not supersede, supplement, or modify the Agreement. Oath may change the Vendor MTC at any time by posting such on the applicable Oath Company Website or by email, and such revised Vendor MTC will supersede and replace the earlier Vendor MTC. Any provision of Services after such revision will be deemed to be acceptance by Vendor of the revised Vendor MTC.
- Cumulative Remedies. The rights and remedies of any Oath Company under the Agreement are not exclusive and may be exercised alternatively or cumulatively, with any other rights and remedies available under the Agreement or in law or equity.
- Contract Acceptance; Counterparts. This Agreement becomes a contract upon the earlier of: (i) when Oath receives Vendor’s acknowledgment via signature, email or other online acceptance; (ii) when Vendor ships any goods, materials or articles described in the Purchase Order in accordance with this Purchase Order; or (iii) when Vendor commences performance of any Services specified in the Purchase Order (“Services”) (as applicable, “Acceptance”). Vendor agrees that it is an express condition of this Purchase Order that any terms, conditions or provisions printed or otherwise contained in any proposal (whether or not signed by either of the parties), acknowledgment, invoice, referenced online terms, or other document of Vendor, inconsistent with, in addition to, or altering, the terms hereof (collectively, “Conflicting Terms”) are hereby rejected, shall have no force or effect and are void, unless the party to be bound by those Conflicting Terms specifically agrees to such Conflicting Terms in writing following the Acceptance of this Purchase Order. To the extent that this Purchase Order might be treated as an acceptance of a previous offer made by Vendor, including by the execution of a proposal between Oath and Vendor, such Acceptance is expressly made on condition that Vendor agrees to comply with the terms and conditions stated in this Purchase Order and shipment of the goods materials or articles or beginning performance of any Services by Vendor shall constitute such Acceptance. Any PO, SOW, SLA, PLSS, and/or Change Order requiring signatures may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Vendor’s online acceptance of any or all portions of the Agreement will be deemed an execution for purposes of the preceding sentence. Vendor will not have the right to object to the manner (i.e., online acceptance, electronic signatures, fax, or scanned images of signature pages) in which the Agreement was executed as a defense to the enforcement of the Agreement. This Purchase Order, when accepted in accordance with this Section, contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior negotiations, statements, quotations, or agreements of or between Oath and Vendor, either written or oral.
- Captions and Construction. Captions in the Agreement are for convenience only and will not affect the interpretation or construction of the Agreement. As used in the Agreement, (a) “days” mean calendar days unless otherwise stated, (b) “include” and “including” mean “including, without limitation,” and (c) “will,” “shall,” and “must” are deemed to be equivalent and denote a mandatory obligation or prohibition, as applicable.
- Notices. All notices will be in writing, and delivered by overnight courier or mailed, first-class postage prepaid, or sent by facsimile with confirmation of transmission, to the recipients as set forth below:
All definitions will apply both to their singular and plural forms, as the context may require. In addition to those definitions set forth elsewhere in the Agreement, the following capitalized terms have the meanings set forth below:
- “Affiliate” means Oath Inc., Oath Holdings, Inc., Oath (Americas) Inc., Oath Holdings International B.V. and any entity controlled directly or indirectly by any of the foregoing.
- “Agreement” means collectively: (a) these Vendor MTC; (b) the Vendor Master Data Template; (c) SOW(s), if any; (d) Price Listed Services Schedule(s), if any; (e) Change Order(s), if any; (f) PO(s); and (g) any SLA(s).
- “Anti-Spam Policy” means Oath’s anti-spam policy terms located at: https://policies.oath.com/us/en/oath/terms/vendor/antispam/index.html, which are incorporated herein by this reference and may be updated from time to time.
- “Data Processing Agreement” means those certain data privacy terms located at https://policies.oath.com/us/en/oath/terms/vendor/dataprocessingagr/index.html, which are incorporated herein by this reference and may be updated from time to time.
- “Defect” means any failure of the Services, in whole or in part, to comply with the Acceptance Criteria or perform as contemplated by the Agreement.
- “Deliverables” mean all developments, discoveries, inventions, products, product formulae, software, drawings, procedures, processes, Specifications, reports, notes, documents, information, plans, reports, compilations of data, and other materials made, conceived, reduced to practice or developed by Vendor alone or with others, and Improvements to any of the foregoing, which (a) are identified as Deliverables in PO or an SOW, (b) are created using Oath Property, or (c) incorporate Oath Property.
- “Documentation” means any written or electronic support materials/documents relating to the use or operation of the Services that Vendor generally makes available with the Services, including user manuals, software support materials, guides, how-to information, data sheets, promotional materials, and/or any other information regarding how to enable or use the Services.
- “Improvements” means collectively, all enhancements, additions, modifications, extensions, updates, new versions, translations, improvements, and derivative works.
- “Information System” means: (a) any information or communications system, including net-services, computer systems, data networks, software applications, broadband/satellite/wireless communications systems, and voicemail; and (b) the means of access to such systems, including all authentication methods.
- “Intellectual Property” or “Intellectual Property Rights” means all: (a) trade secrets; (b) patents and patent applications; (c) trademarks and trademark applications; (d) service marks and service mark applications; (e) trade names; (f) Internet domain names; (g) copyrights and copyright applications; (h) moral rights; (i) database rights; (j) design rights; (k) rights in know-how; (l) rights in inventions (whether patentable or not); (m) renewals or extensions of subsections 14.10(a) through (l); (n) goodwill associated with subsections 14.10(a) through (h), and (o) all other equivalent rights anywhere in the world.
- “Laws” means all applicable laws, statutes, directives, ordinances, treaties, contracts, or regulations, including but not limited to hazardous materials laws, data protection laws, and privacy regimes. Data protection laws includes the General Data Protection Regulation (GDPR).
- “Oath Company” means Oath or an Affiliate, and “Oath Companies” means Oath and Affiliates. A Oath Company also includes any divested business operations or Affiliate for a term not to exceed twelve (12) months from the date of divestiture.
- “Oath Company Website(s)” means all web pages owned, operated, authorized, or hosted by or for a Oath Company.
- “Oath Data” means all data and information provided by, relating to, of or concerning any Oath Company and/or its Users, that is/was obtained by, disclosed to or otherwise made available to Vendor, including Personal Information, systems procedures, processes, employment practices, sales costs, profits, pricing methods, organization/employee lists, finances, product information, inventions, designs, methodologies, Information Systems, Intellectual Property, all Deliverables and interim work product created by or on behalf of Vendor, all survey responses, feedback and reports, and all data and information of such a nature that a reasonable person would believe to be confidential or proprietary.
- “Oath Entities” means the Oath Companies and their officers, directors, consultants, contractors, agents, attorneys, and employees.
- “Oath Property” means, collectively, any and all Oath Confidential Information, Oath Data, Oath Marks, Deliverables, Oath’s Information Systems and all property, equipment, and proprietary information and materials provided by a Oath Company to, or otherwise obtained by, Vendor, or existing at any Site(s), as well as all derivatives of the foregoing.
- “Party” means either Oath or Vendor, as applicable, and “Parties” means Oath and Vendor. For any PO issued by a Oath Company other than Oath or an SOW between Vendor and a Oath Company other than Oath, references to Oath through the Agreement will mean the applicable Oath Company.
- “Personal Information” or “PII” or “Personally Identifiable Information” means any information about a User that: (a) can be used to identify, contact or locate a specific individual; (b) can be used in conjunction with other personal or identifying information to identify or locate a specific individual, including, for example, a persistent identifier, such as a customer number held in a “cookie” or processor serial number; or (c) is defined as “personal information” or sensitive or otherwise restricted information by applicable Laws, data privacy regulations or schemes, relating to the collection, use, storage and/or disclosure of information about an identifiable individual.
- “Personnel” means all workers employed, contracted, or used by Vendor in connection with the Agreement, including employees, agents, independent contractors, temporary personnel, day laborers, and other individuals/entities.
- “Price Listed” or “Price Listed Services” means Services offered at a fixed price inclusive of all costs and fees.
- “Price Listed Services Schedule” or “PLSS” means a mutually agreed upon and executed document that identifies Price Listed Services, the agreed upon prices for Price Listed Services.
- “Project Manager” means the Oath employee or consultant who is the primary contact person for the applicable PO or SOW (as identified therein).
- “Purchase Order” or “PO” means a document issued by Oath authorizing the purchase of Services.
- “Service Level Agreement(s)” or “SLA(s)” means the performance metrics including technical requirements, measurement periods, SLA Credits, and such other performance criteria that govern the Services.
- “Services” means the services and Deliverables, if any, to be provided by Vendor as described in the Agreement. Notwithstanding any independent reference to Deliverables herein, Deliverables are included within the meaning of Services.
- “Site” means the buildings and related premises owned, operated, used, or leased by any Oath Company, including those designated in the applicable PO or SOW as a location at which Services will be performed.
- “Site Access Policies” mean the policies that Vendor must follow when on a Site, including security, facility, equipment, conduct, and safety policies, as updated from time to time.
- “Specifications” means any criteria, including plans, drawings, data, or performance requirements, that must be satisfied for acceptance of Services under an applicable PO or SOW.
- “Start Date” means the date of Acceptance.
- “Statement(s) of Work” or “SOW(s)” means a fully executed document referencing these Vendor Master Terms and Conditions and outlining the nature and scope of Services, which may include: the project plan, Specifications, delivery dates, performance milestones, Deliverables, fees, payment schedule, Project Managers, Vendor Property Disclosure, if applicable, and such other pertinent information to the Services and/or the Agreement.
- “Subcontractor” means a third party to which Vendor delegates any portion of its obligations, subject to Section 2.5.2, above.
- “Travel Policy” means Oath’s travel policy terms, which will be made available or provided to Vendor and are incorporated herein by this reference.
- “User” means any actual or prospective user (including advertisers and content providers) of a Oath Company’s products and/or services, and any officer, director, employee, agent, contractor, and representative of a Oath Company.
- “Vendor” means the vendor executing the VMDT, Order, Change Order, PO, SOW, SLA, or PLSS.
- “Vendor Code” means that certain set of terms applicable to Vendor, and made available at www.verizon.com/about/our-company/supplier-diversity/supplier-code-of-conduct
- “Vendor Master Data Template” or “VMDT” means the Vendor signed document that identifies the Vendor’s information, including: address, telephone, facsimile, federal employer ID and such other information as set forth therein.
- “Vendor Property Disclosure” means the Vendor signed document that identifies any Vendor Property that will be used to provide the Services.
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These Vendor Master Terms and Conditions were last updated on June 27, 2019.