Canonical General Conditions of Purchase

These Canonical General Conditions of Purchase ("GCP") shall apply to:
    (a) Purchase Orders issued by Canonical ("PO") and
    (b) any other agreement signed by the Parties ("Other Terms"), except as otherwise stated therein.

In the event of inconsistency or conflict between the provisions of the documents comprising this Agreement, the order of precedence shall be as follows:
    (i) The PO, including any special terms and conditions stated therein;
    (ii) The Other Terms (as applicable), including schedules, attachments, or exhibits;
    (iii) These GCP.
(Collectively the "Agreement")

To the extent possible, all documents shall be interpreted so as to be consistent with one another. However, in the event of conflict, the document higher in the order of precedence shall prevail.
Any terms and conditions proposed by the Supplier that are not expressly accepted in writing by Canonical shall be deemed null and void and shall not form part of the Agreement.
This Agreement shall come into effect upon the earlier of:
    (a) Supplier's signature, or
    (b) Supplier's commencement of performance.

The Agreement is entered into between the Canonical entity set out in the PO or Other Terms for the benefit of itself and its affiliates ("Canonical") and the supplier identified in the Agreement ("Supplier") and shall take effect on the earliest of: the Supplier's signature or upon the Supplier's commencement of performance.

Scope of the Agreement

The Agreement covers the following scope: (i) Goods - where a purchase or rental of tangible goods and/or software (including software licenses) is taking place; (ii) Services - where services are performed by the Supplier; and (iii) Deliverables - any output from the provision of goods or services by the Supplier including any intellectual property ("IP") which constitute "work made for hire".

Operative Provisions

1. Fees and payment.

1.1. Invoice timing. The Supplier shall invoice the fees monthly in arrears (for provision of Services) or upon Canonical's final acceptance of the Goods (for purchase of Goods). Canonical will pay within thirty (30) days of the date of receipt of a valid and undisputed invoice to [email protected].

1.2. Payment information. Supplier shall ensure that each of its invoices sets out a comprehensive description and a valid Canonical purchase order number for the amount of such invoice. Supplier shall further ensure correctness of its bank account details, including but not limited to confirming that the bank account that Canonical will use for payment is set out in the vendor form provided by Canonical during the onboarding process. Any changes to bank account details are communicated to Canonical through an updated vendor form available at https://apps.docusign.com/webforms/us/8b32fb9f2753352b6e7177c7e29173f4 and sent to [email protected]. The parties acknowledge that any other bank account details, including any bank details set out in Supplier invoices, will not be considered.

1.3. Specification of fees. The fees under the PO are the only amounts payable by Canonical.

2. Taxes.

The fees are exclusive of VAT and any other applicable sales tax required by law. Canonical may withhold or deduct any amounts from the fees to pay any tax required by applicable law. Supplier will indemnify and hold Canonical harmless from any claims, costs (including reasonable attorneys' fees) and liabilities related to Supplier's taxes.

3. Acceptance.

The Goods and Services shall comply with all specifications set out by Canonical. Canonical may terminate the Agreement or an applicable PO tried to if the Supplier does not meet the applicable specifications. All Goods and Services will be subject to Canonical's inspection and testing both during the period of manufacture and prior to final acceptance. Notwithstanding the above, no Canonical inspection or testing will relieve the Supplier of any liability arising out of (i) defects to the Goods or Services or (ii) any other failure to meet the requirements of the Agreement. If it becomes apparent that any Goods or Services are defective (including but not limited to defects in materials or workmanship) or do not conform with the requirements under the Agreement, Canonical may in its sole discretion: (i) reject the affected Goods or Services, in which case no further fees will be due by Canonical to Supplier and Supplier shall promptly refund any fees already paid by Canonical for the rejected Goods or Services, (ii) request prompt correction or replacement at Supplier's expense, or (iii) accept the defective Goods or Services subject to a fee adjustment. All Goods and Services will be subject to final inspection and acceptance by Canonical at a location designated by Canonical within a reasonable time after delivery or performance.

4. Delivery delays.

Except in case of force majeure and without prejudice to its other rights and remedies, in the event that Supplier does not deliver the applicable Goods, Services and/or Deliverables by the agreed delivery date, Canonical reserves the right to apply a penalty of 2% of the amount of the purchase order for each complete week of delay of the agreed delivery date, up to a maximum of 10%.

5. Ownership and Intellectual Property rights.

5.1. Ownership of pre-existing IP. Each party will retain ownership of its pre-existing IP and any IP developed outside of the scope of the Goods and Services covered by the Agreement.

5.2. Licensing of pre-existing IP. The Goods and Services provided by Supplier shall be deemed to include a licence for any pre-existing IP necessary for the free and unlimited use of the Goods and Services by Canonical, including for their repair, modification and replacement by Canonical or by any third party designated by Canonical, within the scope of Canonical's activities.

5.3. Deliverables. Supplier hereby assigns all rights (including Intellectual Property rights) now or in the future arising in relation to the Deliverables to Canonical with full title guarantee. The Supplier shall provide such assistance as is reasonably necessary to Canonical and shall sign or arrange the signature of any associated documentation which is in the view of Canonical reasonably necessary to perfect this assignment. To the extent any of the rights, title and interest in the Deliverables cannot be assigned by Supplier to Canonical, Supplier hereby grants to Canonical and its affiliates a perpetual, worldwide, exclusive, royalty-free, transferable, irrevocable licence under such rights, title and interest, with rights to sublicense through multiple tiers of sublicensees, to practice such non-assignable rights, including, but not limited to, the right to reproduce, modify, display, perform and distribute the Deliverables. To the extent any of the rights in the Deliverables can neither be assigned to Canonical nor licensed by Supplier to Canonical and its affiliates, Supplier irrevocably waives and agrees never to assert such non-assignable and non-licensable rights against Canonical or its affiliates, any of their successors in interest, or any of their licensees, either direct or indirect. If the Parties agree that Supplier may include materials in the Deliverables which are subject to third party IP ("Third Party Components"), such Third Party Components will be listed in a separate document. Third Party Components are licensed to Canonical under the licence specified in the applicable order. If no licence is specified, the Third Party Component is licensed under this clause 5.3.

5.4. Goods. Ownership and title to Goods (other than licensed software) will pass from Supplier to Canonical on final acceptance.

6. Representations and warranties.

6.1. Authority. Each party warrants that it has the legal power and authority to enter into the Agreement and that entering into the Agreement is not in breach of any other agreement.

6.2. Supplier warranties. Supplier represents and warrants that:
    6.2.1. Supplier will provide the Services using reasonable skill and care and through suitably qualified employees and contractors;
    6.2.2. all information (whether written or otherwise) and materials, including the Deliverables, which are provided by the Supplier to Canonical relating to the Agreement are accurate and comprehensive in all material respects when provided;
    6.2.3. all Goods and Services will conform to the specifications provided by Canonical and will, for a period of two (2) years from the date of final acceptance or performance, be free from: (i) design, workmanship or materials defects, (ii) liability for royalties and (iii) any security interest, encumbrance or statutory lien, including but not limited to mechanic's liens;
    6.2.4. Supplier has (or will have at the time it transfers ownership of a Deliverable to Canonical) full and good title to the Deliverables;
    6.2.5. the use of the Deliverables by Canonical or any third party shall not breach the rights (including Intellectual Property rights) of any third party;
    6.2.6. Supplier will ensure that the Deliverables do not contain viruses, vulnerabilities or malicious code that may affect the Goods, Services and Deliverables or Canonical's network and information systems; and
    6.2.7. Supplier will comply with all applicable laws and Supplier's performance of the Services and provision of the Goods and Deliverables and will not violate any law, including labour or employment laws, and if Supplier is an individual, Supplier's provision of services from the country identified as Supplier's country of residence does not violate any labour or employment law.
    6.2.8. Supplier shall comply with all applicable anti-bribery, anti-corruption, and anti-money laundering laws and regulations. Supplier will ensure adequate anti-bribery, corruption, internal controls and money-laundering training for all personnel.
    6.2.9. Supplier is: (i) not the target of sanctions; (ii) complies and will continue to comply with applicable export control, sanctions, and trade laws and regulations, and shall certify such compliance at the time of the contract execution and periodically thereafter, as well as reasonably requested by Canonical; (iii) will not engage in or facilitate any business activity that would lead Canonical to violate export control, sanctions, and trade laws and regulations; and (iv) has systems, processes, and policies in place to ensure compliance with export control, sanctions, and trade laws and regulations.

7. Termination.

Canonical may terminate the Agreement or an applicable PO with or without cause, effective upon 30 days written notice. If Canonical terminates for convenience, its sole obligation is to pay for: (i) Deliverables or Goods accepted before the termination effective date; and (ii) Services performed where Canonical will retain the benefit after the termination effective date.

8. Confidentiality and data protection.

8.1. Disclosure and use. During and after the term of the Agreement or any applicable PO, subject to the exceptions in Clause 8.1, each party will maintain the confidentiality of the other party's confidential information, disclosing it only to those of its affiliates, officers, employees, contractors, professional advisors, and agents who both (i) need to know it to comply with its obligations under the Agreement, or to receive the benefit of the Agreement; and (ii) are under contractual or professional obligations equivalent to those contained in this Clause 8. The obligation of confidence will not apply where the confidential information: (i) was lawfully in the possession of the recipient prior to disclosure by the other party; (ii) is subsequently lawfully acquired from a third party or independently developed by the recipient without breach of any known obligation of confidence; (iii) is or becomes generally available to the public through no act or default of the recipient; or (iv) is disclosed on a confidential basis for the purpose of obtaining professional advice. The receiving party may, without consent, disclose confidential information if required to do so by law. In such event, the receiving party will: (i) limit disclosure to the extent and the entities strictly necessary, and will give the other party as much written notice of the requirement as legally able; and (ii) assist the other party, at the other party's cost in seeking a protective order or other assurance with respect to maintaining the confidentiality of such confidential information.

8.2. Remedies. Each party agrees that damages would not be an adequate remedy for any failure to comply with the confidentiality obligations in the Agreement and that the other party will be entitled to seek the remedies of injunction, specific performance and/or other equitable relief for any threatened or actual failure to comply with those obligations.

8.3. Data Protection Legislation. Each party will comply with all applicable data protection and privacy legislation, including but not limited to the Data Protection Act 2018, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, and any successor legislation to the GDPR or the Data Protection Act 2018, as applicable ("Data Protection Legislation"). The provisions of this clause are in addition to, and do not relieve, remove or replace, a party's obligations under the Data Protection Legislation.

8.4. Processing data. The parties will, in relation to any personal data processed in connection with the performance of the Agreement, only process the personal data: (i) to the extent, and in such manner, as is necessary in order to comply with obligations under the Agreement; (ii) in accordance with the Data Controller's instructions (unless otherwise required in compliance with applicable laws); and (iii) for the duration of the term of the Agreement or an applicable PO, unless otherwise instructed by the Data Controller. The Data Processor will ensure that access to personal data is limited to those personnel or subcontractors who: (i) need to access the personal data to meet its obligations under the Agreement, and (ii) are bound by terms as restrictive as those set out under the Agreement. The Data Processor will be liable for any violation of applicable Data Protection Legislation by its personnel or subcontractors. If requested by Canonical, Supplier and Canonical will enter into a separate data processing agreement.

9. Code of conduct and anti-facilitation of tax evasion.

9.1. RBA Code of Conduct. Supplier will comply with the most current version of the RBA Code of Conduct at: https://www.responsiblebusiness.org/code-of-conduct/ ("Relevant Policy").

9.2. Anti-facilitation of tax evasion. For the duration of the Agreement or any applicable PO, Supplier shall and shall procure that persons associated with it or other persons who are performing services in connection with the Agreement will:
    9.2.1. comply with all applicable laws, statutes, regulations, and codes relating to the prevention of tax evasion and/or the facilitation of tax evasion ("Relevant Requirements"), including but not limited to the Criminal Finances Act 2017
    9.2.2. specifically not engage in any activity, practice or conduct which would cause an offence to be committed under sections 45 and 46 of the Criminal Finances Act 2017;
    9.2.3. not do, or omit to do, any act that will cause or lead Canonical to be in breach of any of the Relevant Policy or Relevant Requirements; and
    9.2.4. indemnify Canonical against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered, incurred by, or awarded against, Canonical as a result of any breach of this clause 9 by Supplier or any breach of provisions equivalent to this clause 9 in any subcontract by any subcontractor.

10. Indemnification.

10.1. Third party claims. Subject to the terms of this clause 10, Supplier will defend, at its expense: (i) any legal action brought by a third party against Canonical or its affiliates to the extent that it is based on a claim that any Goods, Services or Deliverable infringes a third-party Intellectual Property right and (ii) any claims of its employees, affiliates or subcontractors, irrespective of the basis, including, but not limited to, the payment of settlements, judgments, and reasonable attorneys' fees. Supplier will pay any costs and damages incurred by Canonical and its affiliates in any such action that are attributable to any such claim or incurred by Canonical through settlement thereof, but shall not be responsible for any compromise made or expense incurred without its written consent. Supplier's defence and payment obligations under this clause are contingent on the Canonical giving Supplier prompt written notice of the claim, allowing Supplier sole control of the defence and settlement of the claim, and cooperating with Supplier as necessary in the defence and settlement of the claim.

10.2. Applicable laws. Supplier will indemnify Canonical and its affiliates against all claims, demands, loss, costs damages and actions for failure to comply with applicable laws, rules or regulations by Supplier or Supplier's agents, employees, or subcontractors - including the Criminal Finances Act 2017.

11. Limitation of liability.

11.1. LIABILITY CAP. SUBJECT TO CLAUSE 11.3, EACH PARTY'S AGGREGATE LIABILITY UNDER THE AGREEMENT, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WILL NOT EXCEED THE GREATER OF (I) THE AMOUNT OF FEES BECOMING PAYABLE UNDER THE PO, OR (II) 50,000 USD.

11.2. LIABILITY EXCLUSIONS. SUBJECT TO CLAUSE 11.3, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL LOSS OR DAMAGE OR FOR ANY LOSS OF OR DAMAGE TO DATA, EX GRATIA PAYMENTS, LOSS OF PROFIT, LOSS OF CONTRACT OR LOSS OF OTHER ECONOMIC ADVANTAGE (IN EACH CASE WHETHER DIRECT OR INDIRECT) ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, EVEN IF THAT PARTY HAS PREVIOUSLY BEEN ADVISED OF THE POSSIBILITY OF THE SAME AND WHETHER FORESEEABLE OR NOT. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

11.3. Exceptions. Nothing in the Agreement excludes or limits the liability of either party for: (i) death or personal injury; (ii) fraud; (iii) breach of the confidentiality and data protection provisions of the Agreement; (iv) in relation to any indemnity herein; and (v) anything else that cannot be excluded or limited by applicable law.

12. No waiver of rights.

Canonical's delay or failure to exercise any right or remedy will not result in a waiver of that or any other right or remedy.

13. Subcontractors.

Supplier will obtain Canonical's written approval before subcontracting any third party for the provision of any Goods, Services or Deliverables.

14. TUPE.

14.1. In the event that the Agreement or an applicable PO terminates (in whole or part) for whatever reason, the Supplier shall indemnify Canonical (or any successor service provider who shall have the right to directly enforce this clause) from and against all and any actions, proceedings, losses, costs, expenses, damages, claims and demands and any other liabilities whatsoever suffered or incurred by Canonical (or any successor service provider) which relate to or arise from:
    14.1.1. the employment or termination of employment of any person whose employment transfers or who claims their employment transfers by virtue of the Transfer of Undertakings (Employment) Regulations 2006 (or equivalent in any other territory) ("TUPE");
    14.1.2. the transfer of any liability in connection with the employment or termination of employment of any person by Supplier or any sub-contractor; and
    14.1.3. any act or omission by Supplier or any personnel or agent or sub-contractor of Supplier in respect of any relevant personnel for the purposes of TUPE.

15. No employment relationship

15.1. Supplier shall not be considered Canonical's employee, nor shall Supplier personnel be deemed employees of Canonical. Neither Supplier nor its personnel will be entitled to any benefits or privileges given or extended, or duties owed, by Canonical to its own employees, nor will Supplier nor its personnel be deemed employees of Canonical for the purpose of any withholding taxes, worker's compensation, disability, payroll taxes, unemployment compensation, PAYE, social contributions, or any other similar payment due in the context of an employer-employee relationship.

15.2. Supplier shall indemnify Canonical (or any successor service provider who shall have the right to directly enforce this clause) from and against all and any actions, proceedings, losses, costs, expenses, damages, claims and demands and any other liabilities whatsoever suffered or incurred by Canonical (or any successor service provider) which relate to or arise from the formation of an employer-employee relationship.

16. Escalation.

If there is a disagreement in relation to the Agreement, the parties will use their reasonable endeavours to negotiate and settle the disagreement. If it is not possible to settle the disagreement within 14 days, representatives of both parties will meet to try to resolve the disagreement. If the disagreement is not resolved within a further 14 days, the disagreement may be referred by either party to a meeting between the senior managers of the parties. Neither party will refer any dispute to the courts unless and until the dispute resolution procedures of this clause have been followed, but nothing in this clause will prevent either party applying to the courts of any country for injunctive or other interim relief.

17. Insurance.

17.1. Supplier insurance. During the term of the Agreement or an applicable PO and for a period of six months after the expiry or termination of the Agreement or an applicable PO, Supplier shall maintain in force adequate insurance, with reputable insurance companies, to cover its potential liabilities under or in connection with the Agreement, including:
    17.1.1. public liability insurance with a limit of no less than $1 million per claim;
    17.1.2. product liability insurance with a limit of no less than $1 million for claims arising from any single event and not less than $10 millions in aggregate for all claims arising in a year; and
    17.1.3. professional indemnity insurance with a limit of no less than $1 million for claims arising from a single event or series of related events in a single calendar year.

17.2. Should either insurance policy include any deductibles, these shall remain the sole responsibility of Supplier.

17.3. Certificate of insurance. Supplier shall produce to Canonical on request a certificate of insurance from each of its insurers evidencing the insurance required by the Agreement.

18. Audit.

Supplier shall allow Canonical or Canonical's auditor or authorised representative at any time to audit Supplier's performance under the Agreement, including inspecting its hardware and software. Such inspection shall take place during local business hours.

19. Publicity.

Supplier will not issue any press releases or any other publicity related to Supplier's relationship with Canonical or the Agreement, nor will Supplier use any Canonical trademarks without prior written approval from Canonical.

20. Assignment.

Neither party may assign, transfer, charge, create a trust over or otherwise deal in its rights and/or obligations under the Agreement (or purport to do so) without the other party's prior written consent.

21. Force Majeure.

Neither party shall be liable for any breach of the Agreement directly or indirectly caused by circumstances beyond the reasonable control of that party and which prevent that party from performing its obligations to the other, provided that a lack of funds shall not be regarded as a circumstance beyond that party's reasonable control ("Force Majeure Event"). The affected party shall promptly notify the other party in writing of the Force Majeure Event, the date on which it started, its likely and potential duration and the effect of the Force Majeure Event on the affected party's ability to perform any of its obligations under the Agreement and shall keep the other party informed of its endeavours and their outcome in weekly written reports. The affected party shall use all reasonable endeavours to limit the effect of the Force Majeure Event on the performance of its obligations. If the affected party has not resumed full performance of any obligation suspended under this clause 21 within 3 months of giving notice of the Force Majeure Event, either party may terminate the Agreement or an applicable PO by giving 30 days written notice to the other party.

22. No third party beneficiaries.

Unless the right of enforcement is expressly granted, it is not intended that any provision of the Agreement shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to the Agreement. Any member of the Canonical Group may enforce the Agreement against Supplier.

23. Amendments.

No amendment or modification of the Agreement will be binding upon the parties unless made in writing and signed by the authorised representatives of both parties.

24. Non-solicitation of personnel.

During the term of the Agreement or an applicable PO and for 6 months thereafter, neither party will solicit to be hired or hire, as an employee or independent contractor, any individual (i) who is then the personnel of the other party or any of its affiliates or was the personnel of the other party or any of its affiliates during the previous 6 months (unless the other party terminated that individual's employment or contract) and (ii) who the other party came into contact with as a result of the Agreement. Nothing in this clause will prevent either party from hiring or contracting with any person who applies for such job or contract as an unsolicited response to a generally advertised invitation by the relevant party.

25. Severability.

Each of the provisions of the Agreement shall be construed as independent of every other such provision, so that if any provision of the Agreement shall be determined by any court or competent authority to be illegal, invalid and/or unenforceable this shall not affect any other provision of the Agreement, which shall remain in full force and effect.

26. No partnership.

Nothing in the Agreement and no action taken by the parties pursuant to the Agreement shall be construed as creating a partnership or joint venture of any kind between the parties or as constituting either party as the agent of the other party. No party shall have the authority to bind the other party or to contract in the name of or create a liability against the other party.

27. Notices.

Any notice required to be given or sent under the Agreement will be in writing and delivered to the recipient at the address set out in the Agreement or, if no address is set out, to the recipient's registered office address. Canonical's correspondence address is: Canonical Group Limited, 3 More London Riverside, 5th floor Canonical, London SE1 2AQ. A party may update its address by providing notice to the other party. Valid delivery methods are (i) in-person delivery, (ii) first class registered post (or equivalent), or (iii) internationally recognised overnight courier service.

28. Governing law.

The Agreement shall be governed by and construed in accordance with the laws of England and the Parties hereby submit to the exclusive jurisdiction of the courts of England, except when a Party seeks immediate injunctive relief (for example, in connection with a breach or impending breach of confidentiality obligations) that would not be reasonably effective unless obtained in the jurisdiction of the conduct at issue. The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Agreement.