SIDEWALK LABS
SUPPLIER PURCHASE ORDER TERMS AND CONDITIONS–
LEGAL AGREEMENT

If the Sidewalk Labs entity (“Sidewalk”) and the supplier (“Supplier”) identified in the Purchase Order have executed a separate written agreement governing the Products or Services specified in the Purchase Order (“Existing Agreement”), then the Existing Agreement will apply to those Products or Services.  Otherwise the terms and conditions below (the “Terms and Conditions”), together with the Purchase Order, form an “Agreement” between Sidewalk and Supplier for the purchase of all Products or Services specified in the Purchase Order. If there is a conflict between the Terms and Conditions and any Purchase Order(s), the Terms and Conditions govern.  Sidewalk explicitly rejects any additional or different terms in any Supplier documents, including quotations, acknowledgements or online terms. Those Supplier terms will be considered material alterations to the Agreement and are void.

It is important that you as Supplier read the Terms and Conditions carefully.  By accepting the Purchase Order you acknowledge that you have received and reviewed the Terms and Conditions and agree to be legally bound by the Terms and Conditions.

  • 1. Definitions.
    • 1.1. “Background IP” means all IP owned or licensed by a party: (a) before Supplier performs Services, or (b) independent of and without reference to any information, service or product created by such party pursuant to the Agreement.
    • 1.2. “Defect” or “Defective” means with respect to a Product or Service (including Deliverables) a failure to meet the warranties in Section 8.2.1 (Specifications) and, with respect to a Product, Section 8.2.2 (Products).
    • 1.3. “Deliverables” means custom work product (including third party materials, source code, object code, IP, and all other documentation and materials) provided by Supplier to Sidewalk under this Agreement.
    • 1.4. “Developed IP” means any IP created, developed, reduced to practice or otherwise produced or discovered by Supplier or Sidewalk in connection with the Agreement.
    • 1.5. “Intellectual Property Rights” means all registered or unregistered intellectual or proprietary property rights throughout the world, including rights in patents, copyrights, trademarks, trade names, business names, trade secrets, know how, designs, software, databases and domain names, and moral rights, together with all application, renewals, revisals and extensions.
    • 1.6. “IP” means anything protectable by an Intellectual Property Right.
    • 1.7. “Personnel” means Supplier (if an individual) and all officers, employees and agents of Supplier and its subcontractors (including affiliates) and their officers, employees and agents.
    • 1.8. “Product” means any product provided by Supplier, including any hardware, software, or Deliverables.
    • 1.9. “Purchase Order” means a purchase order (including any incorporated attachments) for Product or Services submitted to Supplier by Sidewalk.
    • 1.10. “Services” means all services specified or provided under the Agreement, including any Deliverables.
    • 1.11. “Specifications” means those specifications (if any) identified in a Purchase Order or as the parties may otherwise agree to in writing.
    • 1.12. “Tax(es)” means all sales, use, excise, consumption, goods and services (and similar gross receipts based), value-added and other applicable taxes and similar obligations, except for taxes based on Supplier’s or Personnel’s  net income, net worth, employment, personal and real property, and assets.
    • 1.13. “Transfer Law” means (a) applicable law implementing Council Directive 2001/23/EC and (b) any other laws, directives, regulations, and rules implementing provisions to safeguard and transfer employee rights on a change in service provider, in any jurisdiction applicable to Supplier and the Services under the Agreement.
    • 1.14. “Warranty Period” means the 12-month period starting on the date Sidewalk accepts a Product.
    • 1.15. In the Agreement, (a) “include” or “including” means “including but not limited to,” (b) examples are illustrative and not the sole examples of a particular concept, and (c) written communication includes email.
  • 2. Ordering Product and Services.
    • 2.1. Purchase Orders. Sidewalk may submit Purchase Orders in writing, including electronic transmission. Unless the parties mutually agree otherwise in writing, Purchase Orders will state prices, delivery dates, and delivery locations for Products and Services.
    • 2.2. Changes. Sidewalk may reschedule Products or Services, change the delivery destination for Products in the Purchase Order, or change the Services provided under the Purchase Order, at no cost to Sidewalk, except that if requested changes materially increase or decrease the cost to provide Products or Services, the parties will negotiate an appropriate adjustment to their obligations under the Purchase Order. Supplier will not unreasonably withhold or delay agreement to any change requested by Sidewalk.
  • 3. Product Delivery.
    • 3.1. Product Shipping.
      • 3.1.1. Delivery Terms; Title Transfer. Unless otherwise specified in the Purchase Order, Supplier will deliver Products DDP (Incoterms 2010) to the delivery destination stated in the Purchase Order. Title and risk of loss will transfer from Supplier to Sidewalk upon Sidewalk’s receipt at the delivery destination.
      • 3.1.2. Trade Compliance. When Supplier is responsible for exporting or importing Product, Supplier will obtain, at Supplier’s sole cost and expense, all authorizations and permits necessary to fulfill all applicable governments’ requirements for Product shipment.
      • 3.1.3. Import/Export Information. Upon Sidewalk’s request, Supplier will provide Sidewalk with any information Sidewalk reasonably requests regarding Product importation, exportation or distribution.
    • 3.2. Product Packing. Supplier will package Products according to any instructions Sidewalk provides in a Purchase Order, and if none are provided, then according to good commercial practice to ensure safe arrival of the Products.
      3.3. Advance Delivery. Sidewalk may refuse any delivery made more than 5 days before the delivery date and Supplier will re-deliver the Product on the correct date at Supplier’s expense.
      3.4. Excess Product. Sidewalk may return to Supplier, at Supplier’s expense, any quantity of Product exceeding that specified in the Purchase Order.
      3.5. Late Product Delivery. If a Product shipment (or part of a shipment) is late, Supplier will: (i) immediately propose a new delivery date, (ii) use best efforts to expedite delayed Product at Supplier’s expense, and (iii) issue Sidewalk a discount or refund on the purchase price for Product delivered late, unless otherwise agreed by the parties. Notwithstanding the immediately preceding sentence, Sidewalk may (a) cancel without liability the applicable Purchase Order or portions of the Purchase Order for delayed Product that is not yet delivered or received by Sidewalk at the stated delivery destination, or (b) source replacements for delayed Product from another supplier, at Supplier’s reasonable expense.
  • 4. Inspection, Acceptance, Rejection; Defect Replacement.
    • 4.1. Inspection and Acceptance. Sidewalk may inspect Product and Services on delivery. Any Product or Service not rejected within 30 days of receipt will be deemed accepted by Sidewalk. Sidewalk’s payment to Supplier for Product or Services will not be treated as acceptance.
    • 4.2. Rejection. At Sidewalk’s option, Sidewalk may: (i) return rejected Products, and Supplier will immediately replace returned Products, at Supplier’s expense, including all freight costs; or (ii) use the Defective Products and obtain a reduction in price.
    • 4.3. Defect Replacement Procedure.
      • 4.3.1. For Product that is discovered Defective during the Warranty Period, Supplier will, at its expense and at Sidewalk’s option,
        • 4.3.1.1. replace or repair Defective Product and re-deliver such repaired or replaced Product to Sidewalk within a commercially reasonable timeframe agreed to by Sidewalk,
        • 4.3.1.2. refund Sidewalk the purchase price within 30 days of receiving Sidewalk’s notice that a Product is Defective, or
        • 4.3.1.3. reimburse Sidewalk for the reasonable cost to have the Product repaired within 30 days after receiving Sidewalk’s invoice.
      • 4.3.2. Supplier is responsible for all costs, damages, and liabilities incurred by Sidewalk as a result of Defective Product.
      • 4.3.3. All Products undergoing repair will at all times remain Sidewalk’s property.
      • 4.3.4. Supplier will warrant replacement Product for the longer of 90 days following Sidewalk’s acceptance of the replacement Product or the remainder of the original Product’s Warranty Period.
  • 5. Payment.
    • 5.1. Invoice Issuance and Payment.
      • 5.1.1. Submitting Invoices. Supplier will invoice Sidewalk upon Sidewalk’s acceptance of the Products and Services. Correct invoices will include, at a minimum, Purchase Order number, complete bill-to address, Product part numbers and quantities, description of Products or Services, unit prices, applicable tax or other charges, and extended totals.
      • 5.1.2. Disputing Invoices. Sidewalk will only initiate invoice disputes in good faith and will provide a written description of the disputed amount.  Upon Sidewalk’s request, Supplier will issue separate invoices for undisputed and disputed amounts. Payment of undisputed amounts will not limit Sidewalk’s right to object to and refuse payment of disputed amounts.
      • 5.1.3. Paying Invoices. Sidewalk will pay for accepted Products or Services within 45 days after receipt of a correct invoice.  Sidewalk is not obligated to pay any invoice submitted 180 days or more after a Product is shipped or Services are completed.
      • 5.1.4. Right to Offset. In addition to other rights and remedies Sidewalk may have, Sidewalk may offset any payment obligations to Supplier that Sidewalk may incur under the Agreement against any fees owed to Sidewalk and not yet paid by Supplier under the Agreement or any other agreement between Supplier and Sidewalk.
    • 5.2. Expenses. Sidewalk will reimburse Supplier for expenses up to the amounts specified in the Purchase Order, but only if they are: (1) actual, reasonable, and necessary (without mark-ups or commissions); (2) approved in advance and in writing by Sidewalk; and (3) accompanied by receipts and other documentation that Sidewalk may request establishing the type, date, amount, payment and purpose for such expenses.  Supplier is solely responsible for reimbursing Personnel’s expenses and will do so in accordance with all applicable laws and regulations.
    • 5.3. Taxes. Prices do not include any Taxes. If Supplier is legally obligated to collect applicable Taxes, Supplier must state each applicable Tax as a separate line item on its invoice to Sidewalk. Sidewalk will pay Taxes separately stated on correct, undisputed, and timely invoices for applicable Products or Services, unless Sidewalk provides Supplier with a valid tax exemption certificate. To be correct, invoices for value-added Tax or goods and services Tax must meet all of the relevant Tax authority’s requirements (to allow Sidewalk to obtain relief from such Tax if available). If Sidewalk is obligated to withhold any Taxes from its payments to Supplier, Sidewalk will make the payments net of the withheld amounts.  Sidewalk shall not be liable for any penalties or interest from Supplier failing to remit any such Taxes on a timely basis. To the extent any such Taxes are required to be self assessed by Supplier, Supplier shall be solely responsible for payment thereof to the appropriate governmental or Tax authority.
    • 5.4. Bank Charges. The party receiving payment will be responsible for bank and credit card charges assessed by its bank or the credit card issuer.
  • 6. Product License; Limitations.
    • 6.1. Product License Grant.
      • 6.1.1. For those portions of a Product that are Deliverables, Section 7.4 (Services Intellectual Property Rights; Licenses) will apply.
      • 6.1.2. For those portions of a Product that are not Deliverables, Supplier grants Sidewalk, its affiliates, distributors, and end users a perpetual, irrevocable, non-exclusive, worldwide, fully paid-up, royalty-free license (with the right to sublicense) to copy, use, perform, modify, sell, offer for sale, import, further develop, create derivative works of, adapt, and otherwise dispose of or deal with the Product, including any bug fixes, updates or upgrades developed by Supplier for the respective Product.
    • 6.2. Limitations. The Agreement does not grant any license, right, or interest in any trademark, trade name, or service mark of either party. Neither party will alter or modify any proprietary rights notices on the other party’s IP.
  • 7. Services. To the extent that Supplier provides Services, this Section 7 will also apply.
    • 7.1. Services Provision. Supplier will:
      • 7.1.1. develop, test, and deliver to Sidewalk all Deliverables in accordance with the applicable Purchase Order, and, if requested by Sidewalk, provide Sidewalk with supporting documentation evidencing Supplier’s testing, and all assistance necessary for Sidewalk to fully inspect, test, and validate the Deliverables;
      • 7.1.2. provide all materials, equipment, and Personnel necessary for performing the Services unless stated otherwise in the Purchase Order;
      • 7.1.3. provide Sidewalk with status reports regarding Supplier’s progress on Deliverables, at the frequency requested by Sidewalk;
      • 7.1.4. comply with all applicable Sidewalk policies if and when Supplier is at Sidewalk’s facilities.
    • 7.2. Rejected Services. If any Services are rejected by Sidewalk or, notwithstanding any acceptance by Sidewalk, if any Services do not meet the applicable warranties or other criteria under the Agreement, at Sidewalk’s option, Sidewalk may:
      • 7.2.1. require Supplier to re-perform the non-conforming Services at no charge to Sidewalk;
      • 7.2.2. re-perform the non-conforming Services itself, or have a third party do this, and charge Supplier the reasonable cost of this re-performance;
      • 7.2.3. accept the Services and obtain a reduction in price; or
      • 7.2.4. reject the non-conforming Services and obtain a refund from Supplier for all amounts paid for these Services.
    • 7.3. Failure Analysis. Upon Sidewalk’s request, Supplier will perform a failure analysis of any returned Deliverable that is suspected to be Defective. Supplier will use reasonable efforts to provide Sidewalk with (a) an initial assessment of the Defect’s cause(s) within 1 week of receiving the returned Deliverable; and (b) a final assessment of the Defect’s root cause within 3 weeks of receiving the returned Deliverable.
    • 7.4. Services Intellectual Property Rights; Licenses.
      • 7.4.1. Ownership. Subject to Supplier’s Intellectual Property Rights in any of Supplier’s Background IP incorporated in any Deliverables (and any applicable third parties’ Intellectual Property Rights in Third Party Materials approved by Sidewalk in accordance with Section 7.4.4.):
        • 7.4.1.1. Title to the Deliverables will transfer to Sidewalk upon delivery.
        • 7.4.1.2. Sidewalk exclusively owns any Developed IP and all Intellectual Property Rights embodied therein or associated therewith. All rights, title, and interest to all materials, documentation, data, and other output derived from or created through the use of Products and/or Services (including the Intellectual Property Rights therein) shall vest in Sidewalk and shall be the sole and exclusive property of Sidewalk.
        • 7.4.1.3. The Developed IP is a work made for hire to the extent permitted by applicable law, and Sidewalk retains all Intellectual Property Rights in the Developed IP.
        • 7.4.1.4. To the extent that Supplier or Personnel  own any rights in the Developed IP, Supplier shall and does assign (or will procure the assignment of) all rights (including Intellectual Property Rights), title, and interest in the Developed IP to Sidewalk. If applicable law prevents future assignments, Supplier will assign (or will procure the assignment of) such rights to Sidewalk as they are created.
        • 7.4.1.5. If applicable law prevents Supplier from transferring, or procuring the transfer of, ownership of any Developed IP to Sidewalk, Supplier shall and does grant to Sidewalk a perpetual, irrevocable, exclusive, royalty-free, fully-paid, transferable, worldwide license (with the right to sublicense) to copy, make, use, perform, sell, offer for sale, import, export any component of, dispose of, reproduce, further develop, prepare derivative works of, distribute, publicly perform, publicly display, and otherwise deal with the Developed IP.
        • 7.4.1.6. If requested by Sidewalk, Supplier will timely perform all acts reasonably necessary to accomplish the assignments and other transactions specified in the Agreement.
        • 7.4.1.7. Supplier will not assert, and to the extent permitted by applicable law, otherwise waives, any moral rights in the Deliverables and Developed IP, and will ensure that Personnel and other third parties who have moral rights in the Deliverables and Developed IP will also not assert, and to the extent permitted by applicable law, will waive, those moral rights.
      • 7.4.2. Supplier Background IP License. If Supplier includes any Supplier Background IP in any Deliverables, Supplier will describe such Background IP in writing, and Supplier grants to Sidewalk and its affiliates a perpetual, irrevocable, non-exclusive, royalty-free, fully-paid, worldwide license (with the right to sublicense) to:
        • 7.4.2.1. reproduce, prepare derivative works of, modify, make, distribute, publicly perform, publicly display, and otherwise use and exploit the Supplier Background IP, in connection with the Deliverables and Developed IP; and
        • 7.4.2.2. make, use, sell, offer for sale, import, export any component of, and otherwise dispose of the Supplier Background IP, in connection with the Deliverables and Developed IP.
      • In each case, in any form or media and without consideration or any obligation to account to Supplier or any third party.
      • 7.4.3. Sidewalk Resources License.
        • 7.4.3.1. License. If Sidewalk provides Supplier with any Sidewalk Background IP or Developed IP, software, equipment, tooling, or other materials in connection with this Agreement to provide Services (“Sidewalk Resources”), Sidewalk grants Supplier a limited, non-exclusive, non-transferable, royalty-free license (with the right to sublicense only to its subcontractors authorized by Sidewalk under Section 12.3 (Delegation and Subcontracting)) to use those Sidewalk Resources solely for the purpose of, and only to the extent needed for, performing Services or making Deliverables for Sidewalk.
        • 7.4.3.2. Conditions. Supplier will be responsible for the use and protection of the Sidewalk Resources and will, at Sidewalk’s option, replace or reimburse Sidewalk for the replacement cost of any Sidewalk Resources lost or damaged before its return to Sidewalk.
        • 7.4.3.3. Return. Supplier will return the Sidewalk Resources to Sidewalk immediately after provision of all Deliverables and Services or any termination of this Agreement.
      • 7.4.4. Background IP Limitations. Except for the express license rights under this Section 7.4 (Services Intellectual Property Rights; Licenses) and Section 6.1 (Product License Grant), neither party will own or acquire any right, title, or interest to the other party’s Background IP under the Agreement.
  • 8. Representations and Warranties, Disclaimers.
    • 8.1. Mutual. Each party represents and warrants that it has the full power to enter into this Agreement, carry out its obligations under this Agreement.
    • 8.2. Supplier. Supplier represents, warrants, and covenants that:
      • 8.2.1. Specifications. The Products and Services (including Deliverables) will comply with their Specifications and will be of satisfactory quality and reasonably fit for any purpose made known to Supplier.
      • 8.2.2. Products. Products will be new, unused, and not refurbished at the time of delivery, and will be safe for normal use and free from defects in design, materials, and workmanship during the Warranty Period.
      • 8.2.3. Third Party Materials. The Products and Deliverables will not incorporate any third party’s Intellectual Property or any open source materials without Sidewalk’s prior written approval of: (a) such incorporation; and (b) any applicable license terms.
      • 8.2.4. Software. For software provided by Supplier, the software will not damage, interfere with, or permit unauthorized access to any other existing products or systems on which it is installed or any information residing on those products or systems.
      • 8.2.5. Quality. Supplier’s performance under this Agreement will be of professional quality and performed consistent with generally accepted industry standards.
      • 8.2.6. License Rights; No Claims. Supplier (i) owns or has properly licensed all Products and Services provided by Supplier under this Agreement and Sidewalk will acquire good and clear title free and clear of all liens, claims, and encumbrances, (ii) has and will retain all necessary rights to grant the licenses in the Agreement, and (iii) has no knowledge of any unresolved claims, demands, or pending litigation alleging that the Products or Services infringe or misappropriate any Intellectual Property Rights of any third party.
      • 8.2.7. No Breach of Third-Party Obligations. Supplier and Personnel’s compliance with the Agreement will not breach any obligations they have to any third party.
      • 8.2.8. Pass-Through. Supplier will, to the maximum extent it is contractually permitted to do so, provide to Sidewalk the benefits of manufacturers’ or suppliers’ warranties and guarantees for material or equipment incorporated into the Products or Services, and will perform its responsibilities so that such warranties or guarantees remain in full effect.
      • 8.2.9. Confidentiality. Supplier and Personnel will (i) keep confidential the terms of this Agreement and all non-public and proprietary Sidewalk information, and will not use or disclose such information for any purpose whatsoever other than solely to provide Products and Services to Sidewalk under this Agreement, and will not disclose such information except to the extent required by law after giving reasonable notice to Sidewalk, if permitted by law; and (ii) not use in providing Products or Services or disclose to Sidewalk any materials or documents of another party considered confidential or proprietary unless it has obtained written authorization from that party and Sidewalk.
      • 8.2.10. Insurance. Supplier will maintain: (i) insurance against general liability, property damage, and bodily injury, (ii) technology E&O insurance, (iii) cyber risk insurance, (iv) workers compensation insurance as required by law where Services will be provided, including employer’s liability coverage; and (v) additional insurance limits and coverages as Sidewalk may require, depending upon Services and/or Products provided.  Such coverage will be in amounts of not less than $1 million per occurrence/claim for each category listed above and will be provided by A-rated insurance companies of recognized standing and licensed or authorized to do business in the jurisdiction where the Services are performed or the Products are produced, delivered or used. Sidewalk will be named as an “additional insured” on all general liability policies required herein.  All insurance will be endorsed to contain a waiver of subrogation benefitting Sidewalk and its officers, directors, employees, agents and representatives unless such waiver is prohibited by law. If requested by Sidewalk, Supplier will promptly provide insurance certificates or other evidence of coverage reasonably acceptable Sidewalk.
      • 8.2.11. Compliance with Supplier Code of Conduct. Supplier and Personnel will comply with the Supplier Code of Conduct (available at https://sidewalklabs.com/assets/uploads/2019/09/Sidewalk-Labs-Supplier-Code-of-Conduct_2019.pdf or such other URL as Sidewalk may provide).
      • 8.2.12. Compliance with Laws. In connection with this Agreement, Supplier and Personnel will comply with all applicable laws, directives, and regulations, including those identified below and any other applicable anti-bribery laws, anti-corruption laws, money laundering laws, conflict minerals laws, employment laws, health & safety laws, human rights laws, import/export laws, materials disposal laws, environmental protections laws, and data privacy, data protection, personal information, and anti-spam  laws. Supplier will use commercially reasonable and good faith efforts to comply with Sidewalk’s due diligence process, including providing requested information:
        • 8.2.12.1. Anti-Bribery. In performing its obligations under the Agreement, Supplier will comply with all applicable commercial and public anti-bribery laws, including the U.S. Foreign Corrupt Practices Act of 1977, the Canadian Corruption of Foreign Public Officials Act, the Canadian Proceeds of Crime (Money Laundering) and Terrorist Financing Act, the UK Bribery Act of 2010, and other applicable laws and regulations implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, which prohibit both direct and indirect corrupt offers of anything of value to anyone, including government officials, to obtain or keep business or to secure any other improper commercial advantage. Furthermore, Supplier will not make any facilitation payments, which are payments to induce officials to perform routine functions they are otherwise obligated to perform. “Government officials” include any government employee, candidate for public office, and employee of government-owned or government-controlled companies, public international organizations, and political parties.
        • 8.2.12.2. Modern Slavery. Supplier will comply with all applicable anti-human trafficking, forced labor, and modern slavery laws and rules.  Supplier will take reasonable steps to ensure that no slavery, servitude, forced or compulsory labor, or human trafficking occurs in its provision of Services or supply chain.
        • 8.2.12.3. Conflict Minerals. Upon request, Supplier will provide a complete and accurate conflict mineral report detailing the source and chain of custody of conflict minerals (in a format that is at least as comprehensive as the EICC/GeSI reporting template) for each Product.
        • 8.2.12.4. Sanctions. To the knowledge of Supplier and Personnel, neither Supplier nor Personnel is currently the subject or target of any United States sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and neither Supplier nor Personnel has lent, contributed or otherwise made available, directly or indirectly, any funds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any United States sanctions administered by OFAC.
        • 8.2.12.5. Employment and Human Rights. In respect of all Personnel, Supplier will comply with all applicable human rights codes and other applicable human rights and non-discrimination legislation, as well as all applicable employment standards and occupational health & safety legislation.
      • 8.2.11. Personal Information Safeguards.
        • 8.2.11.1. Under this Agreement, Supplier will not receive, or have access to, use or store Personal Information (as defined below). If however, Supplier receives, or has access to, uses or stores Personal Information under this Agreement, then Section 8.3 will apply (in addition to all other applicable terms of the Agreement, including Section 8.2.7. (Confidentiality) and Section 8.2.10. (Compliance with Laws)).
        • 8.2.11.12. “Data Protection Law” means all international and local country-specific, Canadian provincial and federal, European and U.S. state and federal laws, standards, guidelines, policies, regulations and procedures, in each case as amended, restated, supplemented, modified or restated from time to time, relating to the security, confidentiality, or privacy of Personal Information, including,: (a) the Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 (as updated by the EU General Data Protection Regulation); (b) the Canadian Personal Information Protection and Electronic Documents Act and similar laws and regulations in the provinces and territories of Canada; and (c) Sidewalk’s privacy policy (available at sidewalktoronto.ca/privacy or such other URL as Sidewalk may provide).
    • 8.3. Data Protection. Under this Agreement, Supplier will not receive, or have access to, use or store Personal Information (as defined below). If however, Supplier receives, or has accesses to, uses or stores Personal Information under this Agreement, then this Section 8.3 will apply (in addition to Section 8.2.9 (Confidentiality)).
      • 8.3.1. Definitions. In this Section 8.3:
        • 8.3.1.1. “access” or “accessing” means to create, collect, acquire, receive, record, consult, use, process, alter, store, maintain, retrieve, disclose, or dispose of. Access also includes “processing” within the meaning of the GDPR.
        • 8.3.1.2. “Data Protection Laws” means all data protection and privacy laws enacted in any territory or jurisdiction in which the Services are provided, including the Canadian Personal Information Protection and Electronic Documents Act (and similar laws and regulations of the provinces and territories of Canada) and the General Data Protection Regulation (EU) 2016/679 (“GDPR”), to the extent that and in the form that it is a requirement in connection with the Services.
        • 8.3.1.3. “Personal Information” means any information relating to an identified natural person or a directly or indirectly identifiable natural person. Personal Information includes “Personal Data” as defined in the GDPR.
      • 8.3.2. Obligations. To the extent Supplier accesses Personal Information under this Agreement, Supplier will immediately notify Sidewalk and will comply with (i) all applicable Data Protection Laws in respect of such Personal Information, including with regard to the collection, use, storage, disclosure, transfer and protection of all such Personal Information, and (ii) the following obligations.
        • 8.3.2.1. implement and maintain reasonable and appropriate administrative, physical, and technical safeguards to protect Personal Information against accidental loss, alteration, unauthorized disclosure, or access (“Safeguards”), which Safeguards will meet or exceed relevant industry best practices and standards that protect the security and privacy of Personal Information;
        • 8.3.2.2. not permit access to Personal Information except to those who need to know it to perform under the Agreement and who are subject to a duty of confidentiality, and will ensure that any third party accessing Personal Information contract in writing to protect it with Safeguards at least as strong as Supplier’s Safeguards;
        • 8.3.2.3. upon Sidewalk’s instruction, either delete such Personal Information immediately or return it to Sidewalk in a secure manner and delete all remaining copies of Personal Information after such return and provide documentation of the deletion to Sidewalk;
        • 8.3.2.4. not access Personal Information for any other purpose than compliance with its’ obligations under this Agreement unless required to do so by Data Protection Law applicable to Supplier, in which case Supplier will inform Sidewalk of that legal requirement before disclosure unless prohibited from doing so by applicable law;
        • 8.3.2.5. if Supplier has reason to believe or suspect that Personal Information has actually or is reasonably likely to have been accessed for an unauthorized purpose or by unauthorized persons (an “Incident”), Supplier will: (a) immediately notify and provide full disclosure to Sidewalk by emailing legal@sidewalklabs.com; (b) reasonably assist Sidewalk in investigating the Incident by providing reasonable information known about the Incident, and remedying any Incident and any related inquiry or claim; and (c) provide Sidewalk with reasonable assurance that Supplier has corrected all circumstances under Supplier’s control that led to the Incident.
        • 8.3.2.6. acknowledge that Supplier is aware accessing or exporting Personal Data in or from the United States subjects it to obligations under the EU-U.S. Privacy Shield Framework, whether or not it joins and becomes a participant through the United States Commerce Department. Supplier represents and warrants that it will not violate its obligations under the EU-U.S. Privacy Shield Framework and Data Protection Laws, as applicable, and will not, by act or omission, place Google in breach of those laws;
        • 8.3.2.7. promptly correct, amend or delete the Personal Information at Sidewalk’s direction;
        • 8.3.2.8. assist Sidewalk to conduct data protection impact assessments before accessing Personal Information, where required;
        • 8.3.2.9. promptly notify Sidewalk in writing if Supplier determines that Supplier can no longer provide at least the same level of protection for the Personal Information as is required by Data Protection Law or the Agreement and, on making such a determination, cease accessing the Personal Information or take other reasonable and appropriate remediation steps;
        • 8.3.2.10. promptly notify Sidewalk of any data subject (as defined in GDPR) request to exercise their legal rights with respect to that person’s Personal Information; provided, however, that Supplier will not respond to such requests without Sidewalk’s prior written consent;
        • 8.3.2.11. cooperate with and assist Sidewalk in investigating and responding to data subjects’ exercise of their legal rights;
        • 8.3.2.12. not appoint or change any data processor (as defined in GDPR) without Sidewalk’s prior written consent, which Sidewalk will grant or deny without unreasonable delay, and if granted, Supplier will enter into a contract with each new data processor in accordance with the requirements of the Agreement; and
        • 8.2.3.13. maintain a record of all categories of processing activities carried out in connection with the Services.
    • 8.4. Personnel.
      • 8.4.1. Responsibility. Supplier is responsible for:
        • 8.4.1.1. Personnel’s acts and omissions;
        • 8.4.1.2. staffing, instructing and managing Personnel performing Services;
        • 8.4.1.3. determining Personnel’s compensation (i.e., any stated rates for Services provided are not wage rates);
        • 8.4.1.4. any income tax withholding applicable to Personnel; and
        • 8.4.1.5. all costs associated with terminating Personnel, including costs arising under applicable law, costs arising under an agreement between Supplier and Personnel, and any costs incurred by Sidewalk as a result of such termination.
      • 8.4.2. Employment.
        • 8.4.2.1. Unless Sidewalk expressly agrees otherwise in the Purchase Order, Supplier will only use W-2 employees (or the local equivalent under applicable law) to provide Services (including any subcontracted Services).
        • 8.4.2.2. Supplier and Personnel will not be entitled to any compensation, stock, options, or other rights or benefits provided to Sidewalk employees, waive any right to them, and promise never to claim them.
        • 8.4.2.3. Supplier will comply with all applicable employment and occupational health and safety laws and regulations, including those related to employment practices, wages, and worker classification. (such as meal and rest break laws, wage notices, separation pay, and overtime laws).
      • 8.4.3. No Transfer of Employment.  Sidewalk and Supplier intend that the Transfer Law will not apply to the Services or the Agreement.
    • 8.5. Disclaimer.
      • 8.5.1. EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT, NO OTHER WARRANTIES ARE EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
  • 9. Defense and Indemnity.
    • 9.1. Obligations. Supplier will defend and indemnify Sidewalk, its affiliates, and their respective directors, officers, and employees against all liabilities, damages, losses, settlements, judgments, costs, fines, penalties, fees (including legal fees), and expenses in connection with any third-party claim or legal proceeding to the extent arising from or relating to:
      • 9.1.1. Supplier’s breach of this Agreement, including Section 8.2.9 (Confidentiality) or Section 8.3 (Data Protection);
      • 9.1.2. Supplier’s negligence, willful misconduct, fraud, misrepresentation, or violation of law;
      • 9.1.3. any property damage, personal injury, or death related to (i) Supplier’s performance under this Agreement or (ii) use of a Product or Service;
      • 9.1.4. any allegation that use, possession, or sale of the Products or Services violates or infringes a third party’s rights, including Intellectual Property Rights;
      • 9.1.5. any allegation by or on behalf of Personnel, including that Personnel are entitled to employee compensation, benefits, Transfer Law rights, or other rights or that is premised on Sidewalk or its affiliates jointly or otherwise employing Personnel; or;
      • 9.1.6. an Incident (including investigative and remediation expenses, mailing notice of the Incident, expenses to respond to a regulator or law enforcement investigation or action, public relations consulting expenses, expenses to set up a call center, credit monitoring services expenses and regulatory fines or penalties).
    • 9.2. Remedies. If an injunction preventing continued use of any Products or Services is threatened or granted, Supplier will do the following at its sole expense:
      • 9.2.1. procure the right to continue providing the Products or Services in compliance with this Agreement; or
      • 9.2.2. modify the Products or Services to make them non-infringing without materially reducing their functionality; or
      • 9.2.3. replace the Products or Services with a non-infringing, functionally-equivalent alternative.
  • 10. Limitations of Liability.
    • 10.1. Liability. IN SECTION 10, “LIABILITY” MEANS ANY LIABILITY, WHETHER UNDER CONTRACT, TORT (INCLUDING FOR NEGLIGENCE, FRAUD AND MISCONDUCT) OR OTHERWISE (WHETHER OR NOT FORESEEABLE OR CONTEMPLATED BY THE PARTIES).
    • 10.2. Limitations. SUBJECT TO SECTION 10.3 (EXCEPTIONS TO LIMITATIONS):
      • 10.2.1. NEITHER PARTY WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT FOR:
        • 10.2.1.1. THE OTHER PARTY’S LOST REVENUES OR PROFITS;
        • 10.2.1.2. INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL LOSSES; OR
        • 10.2.1.3. EXEMPLARY OR PUNITIVE DAMAGES; AND
      • 10.2.2. EACH PARTY’S TOTAL LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID AND PAYABLE BY Sidewalk TO SUPPLIER UNDER THE AGREEMENT.
    • 10.3. Exceptions to Limitations. NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS SUPPLIER’S LIABILITY FOR:
      • 10.3.1 DEATH OR PERSONAL INJURY RESULTING FROM ITS NEGLIGENCE OR MISCONDUCT OR THE NEGLIGENCE OR MISCONDUCT OF ITS PERSONNEL;
      • 10.3.2. FRAUD OR FRAUDULENT MISREPRESENTATION;
      • 10.3.3. BREACH OF SECTION 8.2.9 (CONFIDENTIALITY), SECTION 8.2.12.1 (ANTI-BRIBERY), OR SECTION 8.3 (DATA PROTECTION);
      • 10.3.4. INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS;
      • 10.3.5. ITS OBLIGATIONS UNDER SECTION 9 (DEFENSE AND INDEMNITY); OR;
      • 10.3.6. MATTERS FOR WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
  • 11. Termination.
    • 11.1. Termination for Breach. Either party may terminate this Agreement
      • 11.1.1. immediately for breach of Section 8.2.9 (Confidentiality), Section 8.2.12.1 (Anti-Bribery) or Section 8.3 (Data Protection); and
      • 11.1.2. upon written notice if the other party materially breaches any other provisions of this Agreement and fails to remedy that breach within 30 days after written notice.
    • 11.2. Termination for Legal Cause. Either party may immediately suspend performance or terminate the Agreement if an applicable law or an applicable government or court order prohibits such performance.
    • 11.3. Termination for Convenience.  Sidewalk may terminate this Agreement for convenience at any time for any reason whatsoever upon written notice.
    • 11.4. Effects of Termination.  Termination of the Agreement cancels the Purchase Order and terminates all licenses that Sidewalk granted under the Agreement. Immediately on the date of termination, Supplier will stop work on the Purchase Order and will deliver all Deliverables (including work product in progress) to Sidewalk. Sidewalk will pay for Services and Deliverables invoiced prior to the date of termination. However, if Sidewalk terminates for convenience, Supplier may also invoice Sidewalk for any Deliverables and work product in progress not yet invoiced at a pro-rated price based on the percentage of work completed prior to the termination date.
    • 11.5. Survival. Supplier’s obligations to deliver non-cancelled Product and Sections 1, 4.2, 4.3, 5, 6, 7 (other than Section 7.4.3.1), 8, 9, 10, 11.4, 11.5, and 12 will survive any termination of the Agreement.
  • 12. General.
    • 12.1. Records. Supplier will maintain complete and accurate records and books of account relating to this Agreement. Sidewalk may examine the Deliverables at any time.  From the effective date of the Purchase Order until one year after the date of delivery of all Products and Completion of all Services, Sidewalk and its agents may audit Supplier’s relevant records to confirm compliance with this Agreement.  Supplier will promptly notify Sidewalk and provide Sidewalk with reasonably-requested information if a government authority audits Supplier’s business related to the Products or Services.
    • 12.2. Force Majeure. Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control, provided that, in every case, the delay or failure to perform is without the fault or negligence of the party claiming excusable delay and that such party cures the delay or failure as soon as possible after the occurrence of the unforeseen event.  Without limiting the foregoing, breaches by Supplier’s Personnel (other than as a result of aforementioned unforeseen events) will not excuse any Supplier delay or failure to perform as required under the terms of this Agreement.
    • 12.3. Delegation and Subcontracting. Supplier may not subcontract or otherwise transfer or delegate any of its obligations under this Agreement without Sidewalk’s written consent. Supplier will remain directly and primarily liable for all obligations that are subcontracted, transferred or delegated, and for all acts or omissions of its subcontractors, transferees and delegates.  Supplier shall ensure that all of its subcontractors, assignees, transferees and delegates comply with the applicable terms and conditions of the Agreement.
    • 12.4. Background Checks.  Supplier will perform sufficient background checks to ensure that Personnel are not restricted from performing Services by an applicable government authority.
    • 12.5. Assignment. Supplier may not assign any part of this Agreement,  and any attempt to do so is void. Sidewalk may assign or transfer any of its rights or obligations under this Agreement to an affiliate or successor through reorganization, stock purchase or sale, merger or sale of all or substantially all of its assets or business.  The word “assign” shall be deemed to include any other transaction or series of transactions that result in a change of control of a party (including through a stock purchase or sale, merger, a sale of all or substantially all such party’s assets or business, or other form of transaction or arrangement).
    • 12.6. Successors and Assigns. Subject to the Section 12.5 (Assignment), this Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns.
    • 12.7. Governing Law.
      • 12.7.1. THIS AGREEMENT IS TO BE CONSTRUED IN ACCORDANCE WITH, AND ALL CLAIMS DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL BE GOVERNED BY, THE LAWS OF THE PROVINCE OF ONTARIO AND THE FEDERAL LAWS OF CANADA APPLICABLE THEREIN, WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.  THE PARTIES EACH IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS LOCATED IN TORONTO, ONTARIO, CANADA FOR ALL LITIGATION IN RESPECT OF THIS AGREEMENT AND MATTERS DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT.  THIS SECTION 12.7 (GOVERNING LAW) IS NOT INTENDED TO CREATE ANY ONTARIO OR CANADIAN STATUTORY OR COMMON LAW RIGHTS FOR ANY PERSONNEL WORKING OUTSIDE OF ONTARIO.
      • 12.7.2. If the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act are otherwise applicable, the parties expressly exclude them from applicability under the Agreement.
    • 12.8. Independent Contractor. Supplier’s relationship with Sidewalk shall be that of an independent contractor and nothing in the Agreement should be construed to create a partnership, joint venture, agency or employer-employee relationship between the parties.  Neither Supplier nor Sidewalk (a) is the agent of the other; or (b) is authorized or has any authority to make any representation, contract, or commitment on behalf of the other, or otherwise bind the other in any respect whatsoever.
    • 12.9. Notices. All notices of termination or breach will be in English, in writing, and addressed to the other party’s Legal Department. The address for notices to Sidewalk’s Legal Department is legal@sidewalklabs.com. All other notices will be in English, in writing and addressed to the other party’s primary contact. Notice will be treated as given on receipt, as verified by written or automated receipt or by electronic log (as applicable).
    • 12.10. Severability. If any term or part of this Agreement is invalid, illegal or unenforceable, such term or part shall be enforced to the maximum extent possible so as to effect the intent of the parties and the rest of the Agreement will remain in effect and not be affected or impaired thereby.  In addition, if any provision of this Agreement shall for any reason be held to be excessively broad as to duration, geographical scope, activity or subject, it shall be construed by limiting and reducing it to the extent necessary so as to be enforceable under and compatible with applicable law.
    • 12.11. Equitable Relief. Supplier recognizes that the covenants contained in this Agreement, including Sections 6 (Product License; Limitations), 7 (Services), 8.2.9. (Confidentiality), and 8.3 (Data Protection), are reasonable and necessary to protect the legitimate interests of Sidewalk, that Sidewalk would not have entered into this Agreement in the absence of such covenants, and that Supplier’s breach or threatened breach of such covenants shall cause Sidewalk and its affiliates irreparable harm and significant injury, the amount of which shall be extremely difficult to estimate and ascertain, thus, making any remedy at law or in damages inadequate.  Therefore, Supplier agrees that Sidewalk shall be entitled, without the necessity of posting of any bond or security, to the issuance of injunctive relief by any court of competent jurisdiction enjoining any breach or threatened breach of such covenants and for any other relief such court deems appropriate. This right shall be in addition to any other remedy available to Sidewalk hereunder or otherwise, whether at law or in equity.
    • 12.12. Bankruptcy and IP. All rights and licenses granted under or pursuant to this Agreement by Supplier to Sidewalk are, and shall otherwise be deemed to be, for purposes of Canada’s Companies’ Creditors Arrangement Act (“CCAA”) and Bankruptcy and Insolvency Act (“BIA,” and together with the CCAA, collectively, the “Act”), including without limitation Section 32(6) of the CCAA and Section 65.11(7) of the BIA, licenses to rights to “intellectual property” as defined under the Act.  The parties agree that Sidewalk, as licensee of such rights under this Agreement, shall retain and may fully exercise all of its rights and elections under the Act.  The parties further agree that, in the event of the commencement of bankruptcy proceedings by or against Supplier under the Act, Sidewalk shall be entitled to retain all of its rights under this Agreement, including any licenses and rights granted hereunder.
    • 12.13. No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
    • 12.14. No Third Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.
    • 12.15. Entire Agreement, Modification. This Agreement sets out all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter. Any amendment will be in writing, signed by both parties, and expressly state that it is amending this Agreement. In entering into the Agreement neither party has relied on and neither party will have any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly set out in the Agreement.