Purchase Order Terms
Revised: September 23, 2016
1. Definitions. In this Agreement:
Acceptance Certificate means a document advising that CrowdStrike accepts the Deliverables listed on that document.
Agreement means (in order of priority) the Purchase Order and these CrowdStrike Purchase Order Terms.
Deliverable means any goods, services, and/or deliverables resulting from services supplied under this Agreement.
Delivery Address means the delivery address specified in Purchase Order.
Delivery Date means the agreed due date(s) for delivery of the Deliverables as specified in the Purchase Order.
IPR means copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights, contractual rights of non-disclosure or any other intellectual property or proprietary rights, however arising, throughout the world.
IPR Claim means a claim or proceedings alleging that any part of a Deliverable or its use infringes the IPR of any person.
Purchase Order or PO means any document issued by CrowdStrike for the supply by the Supplier of Deliverables in accordance with these terms and conditions.
CrowdStrike means CrowdStrike, Inc. and/or its affiliates.
CrowdStrike Data means all data, information and other materials provided to, generated by, or otherwise used by, Supplier relating to CrowdStrike or CrowdStrike’s personnel or customers.
CrowdStrike Facilities means property either owned or controlled either directly or indirectly by CrowdStrike.
Specifications means (in order of priority) (a) any description of or representation about the Deliverables provided to CrowdStrike and referred to in the Purchase Order, and (b) the Supplier’s specifications for the Deliverables either published or provided with the Deliverables or to customers in general.
Supplier means the person, firm or corporation from whom goods or services are ordered by this Agreement.
Supplier Locations means the United States unless otherwise specifically stated in the Purchase Order.
Support means any software, software as a service, or hardware support and/or maintenance, including but not limited to any general release updates and upgrades, and service levels specified in the PO and/or otherwise customarily provided by Supplier to its customers of similar products and services as the Deliverables.
Total Price means the amount specified as such in the PO.
2. Agreement Formation. This Agreement may be formed electronically with the Supplier. A binding agreement between CrowdStrike and the Supplier will come into existence on the earlier of the date the Supplier confirms acceptance of the PO, or the Supplier commences delivery of any of the Deliverables.
3. Delivery. The Supplier must deliver the Deliverables to the Delivery Address on the Delivery Date and in accordance with any delivery instructions.
4. Inspection and Acceptance. CrowdStrike or its authorized agent may inspect the Deliverables after delivery for the period specified in the PO and if none is specified, 10 business days (the “Review Period”) to determine whether the Deliverables comply with the Specifications. If the Deliverables comply with the Specification CrowdStrike will accept the Deliverables by issuing an Acceptance Certificate. CrowdStrike or its authorised agent has the right, during the Review Period to reject any goods or services carried out that do not conform to this Agreement. If not rejected during the Review Period, Deliverables will be deemed accepted. If the Deliverables do not comply with the Specifications, CrowdStrike may require the Supplier to promptly modify or resupply the Deliverables, at no additional cost to CrowdStrike, so that they comply with the Specifications. If after one opportunity to modify or resupply the Deliverables, the Deliverables are not accepted pursuant to this Section, CrowdStrike may terminate the PO. Execution of a delivery document or payment by CrowdStrike does not constitute acceptance by CrowdStrike. Acceptance does not waive any rights under any warranties or otherwise.
5. Price. Unless otherwise stated in the PO, the prices are fixed and the Total Price includes all levies, duties, taxes (unless expressly stated as being exclusive of taxes), insurance, packaging and delivery costs. The total amount payable by CrowdStrike under this Agreement will not exceed: (a) the Total Price; or (b) if no Total Price is stated on the PO, the amount specifically authorized in writing by CrowdStrike. Unless otherwise stated, all prices are in United States (U.S., “$”) dollars.
6. Payment. Unless otherwise agreed in the PO, the Supplier will only invoice CrowdStrike on the completion of the services or on or after CrowdStrike has issued an Acceptance Certificate. Each invoice must itemize the taxes included in the prices, state the PO number and be addressed to the CrowdStrike contact at the address for invoices specified in the PO. Unless otherwise stated in the PO, CrowdStrike will pay a correctly rendered invoice (less any amounts due to CrowdStrike from the Supplier) 45 days from the end of the month in which the invoice was dated. CrowdStrike is entitled to withhold payment of any invoice to the extent that it relates to Deliverables that do not meet the Specifications. If required by the relevant withholding tax laws, CrowdStrike will withhold an amount of tax from any payment it makes to the Supplier.
7. Risk and Title. Risk in the Deliverables will pass to CrowdStrike when the Deliverables are delivered. Title in the Deliverables (other than Deliverables licensed under the IPR clause) will pass to CrowdStrike on the earlier of acceptance of or payment for the Deliverables.
8. Cancellation. CrowdStrike may cancel or reduce the quantity of a Deliverable by notifying the Supplier before the relevant Delivery Date or if the Supplier fails to supply a Deliverable on the Delivery Date. CrowdStrike will not be liable for any amounts or expenses for cancelled Deliverables.
9. Intellectual Property Rights.
(a) IPR Deliverables created specifically for CrowdStrike: The Supplier assigns (now and in the future) to CrowdStrike all IPR in any material created specifically for CrowdStrike in the supply of the Deliverables and any Deliverables created specifically for CrowdStrike.
(b) Supplier Materials: Supplier grants CrowdStrike (and its contractors) a worldwide non-exclusive paid up license for the term specified in the PO (and if not specified, perpetual and irrevocable) to use and copy all Supplier Materials and the IPR therein so that CrowdStrike (and its contractors) can make full use of the Deliverables for the benefit of CrowdStrike and its affiliates. Supplier Materials means Supplier’s pre-existing or concurrently developed materials and IPR delivered on a stand-alone basis or that may be incorporated into Deliverables created for CrowdStrike, such as, Supplier’s software, data, content or other licensed items.
The Supplier will obtain from its personnel all necessary written unconditional and irrevocable consents and waivers permitted by applicable law to any act or omission that would otherwise infringe any of their IPR or moral rights in the Deliverables whether occurring before or after a consent or waiver is given for the benefit of CrowdStrike, its licensees, and successors in title.
10. IPR Claims.
(a) Notification: In the event of an IPR Claim, the party receiving the claim must notify the other party of that claim in writing as soon as practicable.
(b) Action Required: If an IPR Claim is made in respect of the Deliverables or any part of them, the Supplier must (at CrowdStrike’s option) (i) modify the Deliverables so that the use of the Deliverables ceases to infringe the rights of that person (while still complying with the Performance Warranties); (ii) procure promptly for CrowdStrike the right to use the Deliverables free of any claim or liability for infringement; or (iii) replace the Deliverables promptly with non-infringing substitute products that comply substantially with the Specifications and warranties and procure for CrowdStrike free of charge the right to use the substituted Deliverables on terms no more onerous to CrowdStrike than this Agreement.
(c) Settlement: If the Supplier fails to comply with Section 1010(b) and Section 16 within 30 days after CrowdStrike notifies the Supplier of an IPR Claim, the Supplier must comply with any reasonable settlement of that IPR Claim (including by paying money) negotiated by CrowdStrike after that date.
11. Warranties. The Supplier warrants that:
(a) all goods supplied by the Supplier are: (i) new and in good condition; (ii) compliant with all relevant laws, standards and industry codes; (iii) free from defects in design, materials and workmanship; (iv) of good and merchantable quality and fit for their intended purposes; and (v) compliant with the Specifications;
(b) any Support or services performed by the Supplier will: (i) be performed with the degree of skill, care and diligence that would be expected of a skilled professional experienced in performing the same or similar services; (ii) comply with all reasonable directions of CrowdStrike; and
(c) it will comply with all CrowdStrike policies notified to the Supplier by CrowdStrike from time to time;
(d) the Deliverables and their use and supply will not breach any obligation of confidence or infringe any IPR of any person; and
(e) the processing of any CrowdStrike Data or Personal Information will be at the Supplier Locations and Supplier shall notify CrowdStrike in advance of any proposed change to the Supplier Locations.
EXCEPT FOR THE WARRANTIES HEREIN, SUPPLIER MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY.
12. Breach of Warranty. If the Supplier becomes aware, or CrowdStrike notifies the Supplier, that a Deliverable fails to comply with any of the warranties given under this Agreement, the Supplier must, without prejudice to any other rights of CrowdStrike:
(a) in the case of the warranties provided under paragraph (a) of the Warranty clause, during the period of 12 months (or such longer period as may be agreed) from the acceptance of the Deliverable fix any non-compliance; and
(b) in the case of any other warranty provided under this Agreement, promptly (at CrowdStrike’ option): (i) remedy that failure (including by replacing or resupplying the Deliverable), (ii) provide to CrowdStrike a full refund of the price paid for the Deliverable, or (iii) deduct in accordance with CrowdStrike’s directions the price paid for the Deliverable from any amounts owing to the Supplier.
13. Confidentiality. This Agreement and any information which one party obtains from the other party relating to this Agreement (whether in writing or otherwise) is the disclosing party’s confidential information unless it is public knowledge, publicly available, or in the receiving party’s lawful possession prior to being obtained from the disclosing party. The receiving party must keep the disclosing party’s confidential information confidential, safe and secure, not disclose it to any person (except personnel, auditors and counsel of the receiving party who have a need to know and a confidentiality obligation no less protective than this provision). The receiving party shall make no use of the discloser’s confidential information other than in connection with the performance of this Agreement. The receiving party shall use commercially reasonable efforts to return or destroy the discloser’s confidential information when requested by the disclosing party; provided, that a receiving party may retain any confidential information that has been created electronically pursuant to automatic or ordinary course archiving, redundancy, back-up, security or disaster recovery systems or procedures; provided, however, that any such retained information shall remain subject to this Agreement. Supplier shall not make any public statement about this Agreement or use any CrowdStrike name or logo in any public announcement, promotional materials or presentation unless it has first obtained written consent from CrowdStrike’s Chief Marketing Officer or CEO. Supplier shall notify CrowdStrike of any breach of this Section.
14. Privacy. The Supplier must not, directly or indirectly use or disclose personal information of CrowdStrike customers or personnel (Personal Information) except to the extent necessary to provide the Deliverables. The Supplier must not send Personal Information to and from any location outside of the country of origin of such Personal Information, including for storage, unless authorized by CrowdStrike in writing. The country of origin shall be the country of the CrowdStrike entity incorporation unless otherwise stated in the PO. The Supplier must take all reasonable steps to safeguard Personal Information from misuse, interference, loss, unauthorised access, modification and disclosure, and must notify CrowdStrike in the event of the foregoing. Supplier shall comply with all CrowdStrike security policies made available to Supplier. When dealing with Personal Information the Supplier must comply with all applicable legislation. On termination or expiry of this Agreement, the Supplier must promptly return to CrowdStrike or, if requested by CrowdStrike, destroy all copies of the personal information, in which case any right to use, copy of disclose that personal information ceases. Supplier shall notify CrowdStrike of any breach of this Section.
15. Support. The Supplier must provide Support for the duration of the Deliverables unless otherwise specifically stated on the PO.
16. Indemnity. Supplier shall defend (with counsel satisfactory to CrowdStrike), indemnify and save harmless CrowdStrike, its current and former officers, directors and employees, from and against all suits, claims, losses, liabilities, damages, judgments, settlements, costs and expenses, including witness fees, paralegal fees, reasonable attorney’s fees and other legal fees (collectively, a “Loss”), whether groundless or otherwise, which CrowdStrike may sustain relating to: (i) any allegations of IPR infringement in connection with this Agreement or CrowdStrike’s ownership, title and/or use of the Deliverables; (ii) Supplier’s, its employees, agents or contractors (or their employees, agents or contractors) negligence, or willful misconduct,; (iii) Supplier’s breach of this Agreement or the violation of any applicable laws; (iv) Supplier’s employees or its subcontractor’s employees found to be employees of CrowdStrike for any purpose, including federal tax purposes. In connection with Service Provider’s indemnification obligations, CrowdStrike will provide Supplier with: (i) prompt written notice of each such claim received by CrowdStrike; (ii) control over the defense and settlement of such claim, and (iii) at Supplier’s expense, available information and reasonable assistance to settle or defend any such claim. Notwithstanding the foregoing, Supplier shall not settle any such claim without CrowdStrike’s prior written approval that shall not be unreasonably withheld or delayed. CrowdStrike shall be entitled to participate in the defense of any claim at its own expense. This Section 18 shall survive the expiration or earlier termination of this Agreement, regardless of the party that terminated this Agreement or the reasons therefor.
17. Limitation of Liability. EXCEPT FOR SUPPLIER’S INDEMNIFICATION OBLIGATIONS, NEITHER PARTY SHALL HAVE LIABILITY TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS CONTRACT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL CROWDSTRIKE’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNTS PAID OR PAYABLE BY CROWDSTRIKE TO SUPPLIER UNDER THIS AGREEMENT IN THE TWELVE MONTHS PRECEDING ANY CLAIM REGARDLESS OF THE CAUSE OR FORM OF ACTION.
18. Insurance. Supplier shall maintain insurance coverage at its own cost and expense as follows: (a) Commercial General Liability insurance written on an occurrence basis (including, but not limited to, bodily injury, products and completed operations, blanket or broad form contractual liability, personal and advertising injury liability and broad form property damage) with minimum limits of $5,000,000 per occurrence, naming CrowdStrike and its affiliates as additional insureds; (b) Business Automobile Liability insurance (covering the use of all owned, non-owned and hired vehicles) with a minimum combined single limit of $2,000,000 for bodily injury and property damage, naming CrowdStrike and its affiliates as additional insureds; (c) Crime/Fidelity Bond coverage with a minimum limit of $5,000,000 providing coverage for, but not limited to, employee dishonesty (for losses arising out of or in connection with any fraudulent or dishonest acts committed by employees of Supplier, acting alone or in collusion with others), computer crime coverage, forgery and alteration; (d) Professional Liability/Errors & Omissions insurance in the amount of $5,000,000 for losses from wrongful acts arising from the performance of professional services under this Agreement and (e) Workers’ Compensation Insurance with coverage applicable in all states in which work is to be performed, with limits in accordance with the statutory requirement of each such state, and Coverage B – Employer’s Liability Coverage, including occupational disease, with a limit of not less than $1,000,000 per accident. The foregoing coverages shall be maintained with insurers licensed and admitted in the state(s) where Supplier conducts business and which have an A.M. Best rating of A, VIII or better. All policies maintained by the Supplier pursuant to this Agreement shall be primary and non-contributing with any insurance carried by CrowdStrike and its Affiliates. If any of the above required insurance policies are written on a claims-made/discovered basis, such policies shall be kept in force, through either the purchase of an extended reporting period or renewal policy, for a period of not less than 3 years following the expiration or termination of this Agreement. At the time of the execution of this Agreement and prior to the performance of any work thereunder, Supplier shall provide certificate(s) of insurance to CrowdStrike evidencing that the coverage required under this Agreement is maintained and in force. Supplier shall also provide renewal certificates to CrowdStrike at the time of each required policy renewal throughout the term of this Agreement. In addition, Supplier shall provide at least 30 days written notice to CrowdStrike prior to cancellation, non-renewal or material change to any of the policies providing such coverage. The forgoing insurance requirements do not limit the Supplier’s liability as set forth elsewhere in this Agreement.
19. Assignment and Subcontracting. Subject to written consent being granted by CrowdStrike, Supplier must not assign the whole or any part of this Agreement. The Supplier must not use any subcontractors for supply of the Deliverables without CrowdStrike’ prior written consent. If the Supplier uses a subcontractor, the Supplier remains liable for the subcontractor’s performance. Supplier need not obtain consent for the use of third party vendors and suppliers in Supplier’s ordinary course of business and not unique to providing the Deliverables to CrowdStrike.
20. Termination. CrowdStrike may terminate this Agreement:
(a) on 30 days prior notice without any liability for compensation and without being obliged to give any reason for so doing; or
(b) immediately if the Supplier: (i) becomes insolvent or is petitioned in bankruptcy; (ii) being a company, a petition for winding up the company is presented; (iii) an order is made or an application is brought or a resolution is passed for its winding up; (iv) any step is taken to appoint a receiver or receiver and manager or administrator or liquidator to the Supplier; or (v) the Supplier makes any arrangement for the benefit of creditors;
Either party may terminate this Agreement if the other party breaches any provision of this Agreement and fails to cure such breach within 30 days of receipt of notice of breach.
21. Effects of Termination. On termination (by either party) or expiration of this Agreement:
(a) the accrued rights and remedies of each party are not affected;
(b) the Supplier must stop working on, and seek to cancel the supply of any incomplete or undelivered Deliverables;
(c) the Supplier must: (i) provide CrowdStrike (or, where requested by CrowdStrike, a third party nominated by CrowdStrike) with an electronic copy of all of CrowdStrike Data, in the file format(s) (and using the data structures) required by CrowdStrike; and (ii) provide CrowdStrike (or the nominated third party) with such assistance as they reasonably require to load or migrate the CrowdStrike Data into their own systems for the purpose of providing CrowdStrike with services similar to the services provided under this Agreement; and (iii) return all CrowdStrike Data and other CrowdStrike confidential information to CrowdStrike subject to the Section entitled Confidentiality; and
(d) The Sections entitled IPR, IPR Claims, Warranties, Confidentiality, Privacy, Indemnity and Effects of Termination shall survive the expiration or termination of this Agreement.
22. Notices. Any notice or other communication hereunder shall be in writing and be given, or sent by certified or registered mail or express mail carrier and addressed to the respective parties at the addresses in the PO.
23. Compliance with Law. The Supplier must comply with all relevant legislation and regulations in the performance of this Agreement.
24. Applicable Law. This Agreement shall be construed in accordance with the laws of the State of California, USA without reference to its conflicts of law principles.
25. Cumulation of Remedies. All remedies available to either party for breach of this Agreement are cumulative and may be exercised concurrently or separately, and the exercise of any one remedy shall not be deemed an election of such remedy to the exclusion of other remedies.
26. Amendments and Waivers. No amendment or waiver to this Agreement, including any PO, shall be effective unless in writing and signed by the party against whom enforcement therefor is sought. A waiver of any specific term hereof shall not be deemed to constitute a waiver of any other term hereof, nor shall a waiver on any one or more occasions be deemed to imply or constitute a waiver of the same or any other term on any other occasion.
27. Severability. If any part of this Agreement shall be held to be void or otherwise unenforceable, such part shall be treated as severable, leaving valid the remainder of this Agreement.
28. Entire Agreement. This Agreement is the complete contract between CrowdStrike and the Supplier in relation to the Deliverables. This Agreement supersedes all prior proposals, agreements or other communications between the parties, oral or written, regarding such subject matter. No confirmation, shipment, delivery document, shrink-wrap or click-thru license or representation will vary this Agreement.