PURCHASE ORDER TERMS AND CONDITIONS
This purchase order is an offer by Medallia, Inc. and/or its affiliate(s) (“Medallia”) for the purchase of the goods (the “Goods”) or services (the “Services”) specified on the purchase order (together, the “Products”) from the party to whom the purchase order is addressed (“Vendor”) in accordance with and subject to the terms and conditions herein (the “Terms”). The Terms , together with the order confirmation and commercial terms on the face of the purchase order (collectively, the “PO”) comprise the entire agreement between the parties unless there is a separate, written agreement that has been negotiated and signed by both parties (if any, the “Signed Agreement”). Unless there is a Signed Agreement, the PO, together with any documents incorporated by reference, constitutes the sole and entire agreement of the parties with respect to the PO, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the PO. The PO expressly limits Vendor’s acceptance to the terms of the PO (or the Signed Agreement, if any) for any Products provided by Vendor to Medallia that are the subject matter of the PO, even if the PO is issued after delivery or performance of the Products. These Terms prevail over any terms or conditions contained in any other documentation (other than a Signed Agreement) and expressly exclude any of Vendor’s general terms and conditions of sale or any other document issued by Vendor in connection with the PO. Any terms appearing in any acknowledgement of the PO or any of Vendor’s documentation, including but not limited to any orders, terms and conditions, etc., that are in addition to or conflict with the terms set forth in the PO are null and void, not a rejection and counteroffer, and any acknowledgement absent those terms constitutes acceptance of the PO. For clarity, if there is a Signed Agreement, then that Signed Agreement supersedes these Terms.
2. PRICES AND TAXES
Unless otherwise specified, the prices set forth in the PO exclude all applicable federal, state and local taxes and are in the currency set forth on the PO. If no currency is stated, then the currency is the local currency of the entity issuing the PO. Without prejudice to any other right or remedy Medallia may have, Medallia reserves the right to set off at any time any amount owing to Medallia by Vendor against any amount payable by Medallia to Vendor.
Vendor will submit invoices in accordance with these Terms showing the following information: PO number, item number, description of item, size of item (if applicable), quantity of item, unit prices, each applicable tax, extended totals and any other information specified elsewhere in these Terms or the PO. All invoices must be submitted to firstname.lastname@example.org. For goods shipped to Medallia, a bill of lading or express receipt must accompany each invoice. Unless expressly stated otherwise in a Signed Agreement or on the face of the PO, payment on invoices shall be net 30. Payment of invoice will not constitute acceptance of Products and will be subject to adjustment for errors, shortages, defects in the Products or other failure by Vendor to meet the requirements of the PO. If, in good faith, Medallia disputes an amount charged on an invoice, Medallia will be entitled to withhold the disputed amount pending resolution of the dispute. Vendor acknowledges that Medallia will not be liable for the payment of any invoice received more than one hundred and twenty (120) days after accrual of the charges covered by such invoice.
Time in connection with any discount vendor is offering will be computed from the latest of
(a) the Delivery Date (as defined below), (b) the date of actual delivery, or (c) the date an acceptable invoice is received. For the purpose of earning the discount, payment will be deemed to have been made on the date of issuing of our payment (or mailing of our check if applicable).
Medallia will pay only for maximum quantities ordered. Medallia will hold over-shipments at Vendor’s risk and expense for a reasonable time awaiting shipping instructions. Return shipping charges for excess quantities will be at Vendor’s expense.
6. DELIVERY OF GOODS AND PERFORMANCE OF SERVICES
- Unless otherwise specified, when the price specified in the PO is based on the weight of the ordered Goods, the price is to cover only the net weight of material ordered, and no charges will be allowed for packing, handling, transportation, storage or other packing requirements. Unless otherwise specified, Vendor will package and pack all Goods in a manner that is (a) in accordance with good commercial practice, (b) acceptable to common carriers for shipment at the lowest rate for the particular goods, (c) in accordance with I.C.C. regulations, and (d) adequate to insure safe arrival of the Goods at the named destination on the PO (the “Delivery Location”). Vendor will mark all containers with necessary lifting, handling, and shipping information and with purchase order numbers, date of shipment and the names of the consignee and consignor. An itemized packing list must accompany each shipment. No partial or complete delivery will be made prior to the due date or dates shown unless Medallia has given prior written consent. Vendor will deliver the Goods in the quantities and on the date(s) specified in the PO or as otherwise agreed in writing by Medallia (the “Delivery Date”). If no delivery date is specified, Vendor will deliver the Goods on the date that is 5 business days after Vendor’s receipt of the PO unless Medallia has given prior written consent to earlier delivery. Medallia may reject and return any Goods delivered prior to the Delivery Date at Vendor’s expense and Vendor will redeliver the Products on the Delivery Date. All Goods will be delivered to the Delivery Location during our normal business hours or as Medallia otherwise instructs. Unless otherwise specifically provided on the face of the PO, the Goods ordered under the PO will be delivered F.O.B. Delivery Location.
- Vendor shall provide the Services to Medallia as described and in accordance with these Terms or the Signed Agreement, if any.
- Vendor represents, warrants, and covenants that all Products delivered will (i) be new, unused (except for quality control testing), and free from defects in workmanship, material, and manufacture; (ii) comply with the requirements of the PO (or Signed Agreement, if any), including any drawings or specifications incorporated in the PO or samples furnished by Vendor; (iii) be non-infringing and free from defects in design, and (iv) be in compliance with all applicable laws and regulations, including any industry codes and standards referenced in Vendor’s Product specification sheet applicable to the Product. Vendor further warrants that all Products purchased under the PO will be of merchantable quality and will be fit for the purposes intended by Medallia to the extent disclosed to Vendor. The foregoing warranties constitute conditions to the PO. They are in addition to all other warranties, whether express or implied, and will survive any delivery, inspection, acceptance or payment by Medallia. All warranties run to the benefit of Medallia and Medallia’s resellers and customers.
- At the time that title to the Products passes to Medallia, Vendor warrants that there are no liabilities for royalties, mechanics liens, or other encumbrances on the Products supplied and will indemnify Medallia against any of these liabilities.
- If any Products delivered do not meet the warranties specified in these Terms or otherwise applicable following our acceptance of the Product pursuant to Section 9, Medallia may, at its option and upon written notice to Vendor within 1 year following the date on which the Product is actually delivered to Medallia (unless another warranty period is specified elsewhere in this PO or any Signed Agreement), (i) require Vendor to correct any defective or nonconforming Products by repair, replacement or re-performance at no cost to Medallia within a reasonable period of time; (ii) return the defective or nonconforming Products to Vendor at Vendor’s expense and recover from Vendor the applicable order price; or (iii) correct the defective or nonconforming Products within a reasonable period of time and charge Vendor with the cost of the correction. These Terms apply to any repaired or replacement Products provided by Vendor hereunder.
- Vendor represents, warrants, and covenants that all Services performed under the PO will be performed in a timely, competent, professional and workmanlike manner, in accordance with Medallia’s Code of Business Conduct and Ethics for Partners and Supplier (available at https://www.medallia.com/code-of-business-conduct-and-ethics-for-partners-and-suppliers/), Medallia’s terms for activities to be conducted on Medallia premises (https://www.medallia.com/nda-and-activity-on-medallia-premises/), all applicable law and with generally accepted national and international firms experienced in performing work of a type similar to the Services. If within 1 year of performing the Services the Services fail to conform to the foregoing warranty, Vendor agrees to re-perform such Services within a reasonable period of time.
- Medallia’s approval of Vendor’s materials, specifications or designs will not relieve Vendor of any warranties. Vendor’s warranties survive any delivery, inspection, acceptance or payment of or for the Products by Medallia.
8. VENDOR’S OBLIGATIONS REGARDING SERVICES
- before the date on which the Services are to start, obtain, and at all times during the term of this PO, maintain, all necessary licenses and consents and comply with all relevant laws applicable to the provision of the Services;
- comply with all rules, regulations and policies of Medallia, including security procedures concerning systems and data and remote access thereto, building security procedures, including the restriction of access by Medallia to certain areas of its premises or systems for security reasons, and general health and safety practices and procedures;
- maintain complete and accurate records relating to the provision of the Services under this PO, including records of the time spent and materials used by Vendor in providing the Services in such form as Medallia shall approve. During the term of this PO and for a period of 2 years thereafter, upon Medallia’s written request, Vendor shall allow Medallia to inspect and make copies of such records and interview Vendor personnel in connection with the provision of the Services;
- obtain Medallia’s written consent, which may be given or withheld in Medallia’s sole discretion, prior to entering into agreements with or otherwise engaging any person or entity, including all subcontractors and affiliates of Vendor, other than Vendor’s employees, to provide any Services to Medallia (each such approved subcontractor or other third party, a “Permitted Subcontractor“). Medallia’s approval shall not relieve Vendor of its obligations under the PO, and Vendor shall remain fully responsible for the performance of each such Permitted Subcontractor and its employees and for their compliance with all of the terms and conditions of this PO as if they were Vendor’s own employees. Nothing contained in this PO shall create any contractual relationship between Medallia and any Vendor subcontractor or supplier;
- require each Permitted Subcontractor to be bound in writing by confidentiality provisions no less onerous than the ones set forth in this PO; and
- ensure that all persons, whether employees, agents, subcontractors, or anyone acting for or on behalf of the Vendor, are properly licensed, certified or accredited as required by applicable law and are suitably skilled, experienced and qualified to perform the Services
9. INSPECTION AND ACCEPTANCE
Notwithstanding any prior inspection or payments, all Products will be subject to final inspection and acceptance at the Delivery Location within a reasonable time after delivery. In case any Product is defective in material or workmanship, or otherwise not in conformity with the warranties or other requirements of the PO, Medallia will have the right to reject it, to require its correction or to accept it with an adjustment in price. Vendor must replace or correct, at Vendor’s expense and promptly after notice, any Product that has been rejected or required to be corrected. If, after Medallia’s request, Vendor fails to promptly replace or correct any defective Product, then Medallia may (a) by contract or otherwise, replace or correct the Product and charge Vendor the cost as a result, (b) without further notice, cancel the PO for default in accordance with Section 11 below, or (c) require an appropriate reduction in price.
10. CHANGE ORDERS
Medallia may at any time, by a written order, suspend performance, increase or decrease the ordered quantities, change the Delivery Date or make changes in any one or more of the following: (i) applicable drawings, designs or specifications; (ii) method of shipment or packing; and/or (iii) the Delivery Location. If the change causes an increase in the cost or the time Vendor requires for performance of the PO and Vendor so notifies Medallia, then an equitable adjustment will be made in the order price or delivery schedule or both, and the PO will be modified accordingly in writing. No claim by Vendor for adjustment will be valid unless asserted within 20 days from the date of Vendor’s receipt of the notification of change; provided, however, that the period may be extended upon our written approval. Nothing in this Section 10 is intended to excuse Vendor from proceeding with the PO as changed or amended. Medallia is not obligated to pay for any increases in the purchase price that result from changes that do not comply with the foregoing change order process.
11. CANCELLATION FOR DEFAULT
- Time is of the essence for this order. Medallia may, by written notice, cancel this PO in whole or in part if, , Vendor has failed to (i) make delivery of the Products within the time specified in the PO, or any extension made by written change order or amendment; (ii) replace or correct defective Products in accordance with the provisions of Sections 7, 8 or 9 above; (iii) perform any of the other provisions of the PO, or (iv) make progress under the PO as to endanger performance in accordance with its terms. If the PO is canceled for default, and without limiting any other remedies herein, Medallia may procure, upon the terms and in the manner as Medallia may deem appropriate in its reasonable business judgment, goods or services similar or substantially similar to those canceled. Vendor will then be liable to us for any excess costs incurred as a result of that procurement in accordance with Section 2-712 of the Uniform Commercial Code or state law equivalent.
- If all or a portion of the PO is canceled for Vendor’s default, Medallia may require Vendor to transfer title and to deliver , in the manner and to the extent Medallia directs, (i) all completed Products and other items being produced by Vendor es and not yet delivered, and (ii) any partially completed Products, items and materials that Vendor has produced or acquired for the performance of the terminated portion. Vendor will protect and preserve the property listed in this paragraph that is in Vendor’s possession unless directed otherwise by Medallia. Unless Medallia agrees otherwise in writing, payment for items delivered to and accepted under this paragraph will be agreed upon between the parties (not to exceed the contract price); however, Vendor’s obligation to carry out Medallia’s direction as to delivery, protection and preservation of the property will not be contingent upon prior agreement as to that amount.
- Nothing in this Section 11 is intended to excuse Vendor from proceeding with any uncancelled portion of the PO.
12. NOTICE OF DELAYS; FORCE MAJEURE.
Whenever any event delays or threatens to delay the timely performance of the PO, Vendor will immediately notify Medallia of the event and furnish all relevant details. Medallia’s receipt of such notice will not constitute a waiver of the due dates under the PO. Neither party shall be liable to the other for any delay or failure in performing its obligations under the PO to the extent that the delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without that party’s fault or negligence, and that by its nature could not have been foreseen by the party or, if it could have been foreseen, was unavoidable (“Force Majeure Event“). Vendor’s economic hardship or changes in market conditions are not considered Force Majeure Events. Vendor will use all diligent efforts to end the failure or delay of Vendor’s performance, ensure that the effects of any Force Majeure Event are minimized and resume performance under the PO. If a Force Majeure Event prevents Vendor from carrying out its obligations under the PO for a continuous period of more than 10 business days, then Medallia may terminate the PO immediately upon providing written notice.
- At any time for convenience, Medallia may terminate the PO, in whole or in part, upon written notice.
- Upon termination under Section 13(a) hereof, Vendor will, to the extent and at the times specified by Medallia, stop all work under the PO; place no further orders for materials to complete the work; assign to Medallia all interests under terminated subcontracts and orders; settle all claims terminated subcontracts and orders after obtaining Medallia’s approval; protect all property in which Medallia has or may acquire an interest and transfer title and make delivery to Medallia of all articles, materials, work in process and other things held by Vendor or acquired in connection with the terminated portion of the PO. Vendor will proceed promptly to comply with Medallia’s instructions respecting each of the foregoing without awaiting settlement or payment of its termination claim.
- If shipments of Goods are en route to the Delivery Location at the time of termination under Section 13(a), Medallia will have the option to accept delivery of such Goods and pay the full amount for such Goods or return the Goods to Vendor for a restocking fee equal to 10% of the purchase price of the returned Goods.
- After any termination under Section 13(a), Vendor will be reimbursed for work performed to date of termination. Failure to submit the claim for such amounts within 120 days will constitute a waiver of all claims and a release of all our liability arising out of the termination.
14. TITLE; RISK OF LOSS OR DAMAGE
Title passes to Medallia upon earlier of payment for the Products or delivery of the Products to the Delivery Location. Notwithstanding any prior inspections and irrespective of the F.O.B. point named in the PO, Vendor will bear all risk of loss, damage or destruction to the ordered Products until delivery of the Products at the Delivery Location and unloading has commenced except that if Medallia rejects a Product under Section 9, all risk of loss, damage or destruction to the rejected Product shall be deemed not to have passed to Medallia. Medallia, however, will be responsible for any loss directly attributable to the negligence of Medallia’s employees acting within the scope of their employment.
- Vendor will indemnify and defend Medallia (including its employees, officers, and directors, agents, customers, and successors and assigns against any losses, damages, liabilities, fines, interest, penalties, costs, and expenses (including reasonable attorneys’ fees) (“Losses”) (i) arising out of claims by third parties for actual or alleged infringement of any patent, copyright, trademark or other third party right arising out of Medallia’s use or sale of the Products, (ii) resulting from third party claims for personal injury (including death) or property damage arising out of or resulting from any alleged defect in the Products, whether latent or patent, including allegedly improper construction and design or from the failure of the Products to comply with the other warranties made by Vendor in the PO, (iii) incurred in connection with Vendor’s negligence, willful misconduct, or violation of, or noncompliance of the Products with, applicable laws or regulations, (iv) incurred as a result of Vendor’s failure to pay taxes that it is required to pay under this PO as and when due, (v) directly attributable to Vendor’s failure to deliver the Products on the Delivery Date, or (vi) arising out of claims by third parties for breaches of Vendor’s confidentiality obligations hereunder. Medallia will notify Vendor of any suit, claim or demand involving infringement for which Medallia is claiming indemnification and will permit Vendor to defend against or settle it, provided that such settlement does not result in any admission of fault or liabilities for Medallia. If any injunction is issued as the result of any infringement with respect to the Products, Vendor will, at Medallia’s option: (a) refund the amounts paid for the Products covered by the injunction or, (b) promptly furnish an acceptable and non-infringing Products or all necessary rights and licenses necessary to make the infringing Product non-infringing. The above indemnifications are in addition to all our other rights of indemnification against Vendor and survive termination of the PO.
16. NON-DISCLOSURE OF CONFIDENTIAL MATTER
All non-public, confidential or proprietary information of Medallia, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, customer data, trade secrets, pricing, discounts or rebates, disclosed by Medallia to Vendor (“Materials”), whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this PO is confidential, solely for the purpose of performing this PO and may not be disclosed or copied unless authorized in advance by Medallia in writing. Upon Medallia’s request, Vendor shall promptly return all documents and other materials received from Medallia. Medallia shall be entitled to injunctive relief for any violation of this Section. Vendor will not quote for sale to others, without our written authorization, any Products purchased under our specifications or drawings. Vendor will treat all Materials as confidential information. Materials will remain the property of Medallia and will be returned to Medallia upon request. This obligation survives termination of the PO.
17. EQUAL EMPLOYMENT OPPORTUNITY/AFFIRMATIVE ACTION.
- Veterans Employment. If this order is subject to Executive Order 11701, and the rules, regulations or orders of the Secretary of Labor issued thereunder, the contract clause as set forth at 41 CFR 60-250.4 is hereby included as part of this PO.
- Employment of the Individuals with Disabilities. If this PO is subject to Section 503 of the Rehabilitation Act of 1973, as amended, and the rules, regulations or orders of the Secretary of Labor issued thereunder, the contract clause at 41 CFR 60-741.4 is hereby included as part of this order.
- Equal Opportunity. If this PO is subject to the provisions of Executive Order 11246, as amended, and the rules, regulations or orders of the Secretary of Labor issued thereunder, the contract clause set forth al 41 CFR 60-1.4(a) and 60-1.4(b) are thereby included as a part of this order and Vendor agrees to comply with the reporting requirements set forth at 41 CFR 60-1.40.
EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS STATED IN SECTION 15, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF DATA, REVENUE, AND/OR PROFITS), WHETHER FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF THESE TERMS, REGARDLESS OF WHETHER THE LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTIES OR OTHERWISE, AND EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.
19. SECURITIES LAWS.
Vendor may have or receive Confidential Information that constitutes material, non-public information of Medallia (“MNPI”) under U.S. securities laws. Accordingly, Vendor shall refrain, and use best efforts to prevent its employees and agents who have access to Medallia MNPI, from trading in Medallia’s securities while in possession of MNPI and from communicating such MNPI to any other person under circumstances in which it is reasonably foreseeable that such person is likely to trade such securities.
20. GENERAL TERMS.
- Medallia’s failure to enforce at any time any of the provisions of the PO, to exercise any election or option provided in these Terms or to require at any time Vendor’s performance of any of the provisions of the PO will not in any way be construed to be a waiver of those provisions.
- The remedies stated in these Terms are cumulative and are in addition and not in substitution for any other rights and remedies available at law or in equity or otherwise.
- Vendor may not assign, novate, or otherwise transfer this PO, or any right or obligation under the PO (including the right to receive monies due), in whole or in part, whether voluntarily or by operation of law, without Medallia’s prior written consent, and any purported assignment without Medallia’s consent will be void.
- If the PO is issued for any purpose that is either directly or indirectly connected with the performance of a prime contract with the government or a subcontract thereunder, the terms required by the government to be included in agreements such as this PO will be deemed to apply to the PO.
- The PO will be governed by the laws of the State of California.
- If any term or provision of the PO is invalid, illegal, or unenforceable in any jurisdiction, the invalidity, illegality, or unenforceability will not affect any other term or provision of the PO or invalidate or render unenforceable such term or provision in any other jurisdiction.
- No change to the PO is binding upon Medallia unless it is in writing, specifically states that it amends the PO and is signed by our authorized representative.
- The relationship between the parties is that of independent contractors. Nothing contained in the PO will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between Medallia and Vendor, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from the PO.
- The PO is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the PO.
- Provisions of this PO that, by their nature, should apply beyond their terms will remain in force after any termination or expiration of the PO.