Datadog Supplier Terms & Conditions | Datadog

·Datadog Purchase Order Terms and Conditions

11) Definitions

• 1"Terms" means the terms and conditions set forth herein, which shall be binding on Vendor and Datadog.
• 2"Contract" means any contract or agreement between Datadog and Vendor.
• 3"Order" means Datadog's Purchase Order to which these Terms shall apply.
• 4"Work" means any services, labor, goods, materials and/or equipment or part thereof to be provided under the Order.
• 5"Datadog" means Datadog, Inc. and/or any of its subsidiaries or corporate affiliates that is a party to the Order.
• 6"Vendor" means the vendor, contractor, consultant, company, firm, supplier, seller, person, or any entity to which the Order is issued. 2) Controlling Document
• 1The Terms of this Order are the complete and binding agreement between Datadog and Vendor, except: 3) Terms of Payment
• 1Payment shall be made within sixty (60) days from the date Datadog receives an invoice, provided that (a) Datadog receives a correct and valid invoice, (b) the Work is delivered or properly performed in accordance with these Terms and the terms and conditions of any applicable Contract, and (c) Datadog accepted the Work. If the Work is not delivered or performed in accordance with these Terms and the terms and conditions of any applicable Contract, or Datadog has not accepted the Work, the invoice shall be paid within sixty (60) days following the date when the discrepancy is corrected to Datadog's satisfaction.
• 2Datadog shall be entitled at all times to offset any amount due from Vendor against any amount payable at any time in connection with the Order.
• 3In no event may Vendor submit an invoice to Datadog, its affiliates, subsidiaries or parent company or their respective officers, directors, shareholders, members, partners, employees or agents (collectively, the "Datadog Parties"), or otherwise make a claim against the Datadog Parties for payment for Work performed, more than one (1) year after the earlier to occur of (a) the date when Vendor substantially completes the Work, or (b) the date the Order and/or applicable Contract is terminated. Vendor shall indemnify, protect and defend the Datadog Parties against any such claims by any third party.
• 4Vendor shall submit invoices to the Zip Supplier Portal, unless otherwise instructed on the Order.
• 5Except as otherwise provided below, the amounts to be paid by Datadog to Vendor do not include any taxes. Datadog is not liable for any taxes that Vendor is legally obligated to pay, including, but not limited to, net income or gross receipts taxes, franchise taxes, and property taxes. Datadog will pay Vendor any sales, use or value added taxes it owes due to this Purchase Order and/or which the law requires Vendor to collect from Datadog. If Datadog provides Vendor a valid exemption certificate, Vendor will not collect the taxes covered by such certificate. Vendor will indemnify and hold Datadog harmless from any claims, costs (including reasonable attorneys' fees) and liabilities related to Vendor's taxes.
• 6If the law requires Datadog to withhold taxes from payments to Vendor, Datadog may withhold those taxes and pay them to the appropriate taxing authority. Datadog will deliver to Vendor an official receipt for such taxes. Datadog will use reasonable efforts to minimize any taxes withheld to the extent allowed by law. 4) Warranties

·Vendor warrants that the Work shall:

• 1conform to requirements, specifications, quality or any other descriptions outlined in this Order and any Contract incorporated herein.
• 2be provided, performed or carried out in a workmanlike manner.
• 3be without defects and fit for the intended purposes for which the Order is placed.
• 4not infringe any intellectual property rights or any other right relating to any third party.
• 5be performed, provided, manufactured, shipped, stored, and otherwise handled in strict compliance with all applicable laws, codes, ordinances, regulations, executive orders, and industry standards. Vendor makes all applicable warranties contained in the Uniform Commercial Code.

·All other warranties, express or implied, including any warranty of merchantability and fitness for a particular purpose, are in effect and not disclaimed. 5) Confidentiality

·All non-public, confidential or proprietary information of Datadog ("Confidential Information"), including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, and pricing disclosed by Datadog to Vendor, 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 Order and/or any Contract applicable to the Work is confidential, solely for Vendor's use in connection with its performance of its obligations under this Order and/or such Contract and may not be disclosed or copied unless authorized by Datadog in writing. Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Vendor's breach of this Order or any applicable Contract; (b) is obtained by Vendor on a non-confidential basis from a third-party that was not legally or contractually restricted from disclosing such information; or (c) Vendor establishes by documentary evidence, was in Vendor's possession prior to Datadog's disclosure hereunder. Upon Datadog's request, Vendor shall promptly return all documents and other materials received from Datadog. Datadog shall be entitled to injunctive relief for any violation of this Section 5. 6) No Publicity

·Vendor shall not issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Order or to any Contract incorporated herein or otherwise use Datadog's name, logo or other marks without the prior written consent of Datadog. 7) Indemnification

·Vendor will defend, indemnify and hold harmless Datadog, the Datadog Parties, any additional insureds under any applicable Contract and their respective officers, directors, employees, agents, affiliates, partners and clients against all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, fees and the costs of enforcing any right to indemnification under this Order or any applicable Contract and the cost of pursuing any insurance providers, in connection with any third-party claim arising from or relating to (a) actual or alleged infringements of any third-party intellectual property or other proprietary rights, which arise from or relate to the Work, (b) any claim that, if true, would constitute a breach of any Vendor warranty contained herein, (c) any act or omission of or failure to comply with applicable laws, rules or regulations by Vendor or Vendor's agents, employees, or subcontractors, (d) any breach of confidentiality, data protection or privacy obligations by Vendor, (e) the negligent or willful acts or omissions of Vendor or its subcontractors which results in any bodily injury or death to any person or loss, disappearance or damage to tangible or intangible property, or (f) any claims of Vendor's employees, affiliated companies or subcontractors. 8) Insurance

·a. Vendor will secure and maintain insurance providing sufficient coverage to comply with its obligations and duty to indemnify as required under this Order and/or any incorporated Contract. Within five (5) days of receipt of a request from Datadog, Vendor agrees to provide Datadog with a certificate of insurance evidencing Vendor's insurance coverages. 9) Limitation of Liability

·To the extent permitted by applicable law, in no event will any of the Datadog Parties be liable to Vendor for any lost revenues or profits, for any incidental, consequential or other indirect damages or for any special or punitive damages. In no event shall any of the Datadog Parties' liability to Vendor exceed the total amount of fees actually paid by Datadog to Vendor hereunder. 10) Anti-Corruption

·All Vendor actions related directly or indirectly to the performance of this Order or any incorporated Contract will comply with all applicable anti-corruption laws. Accordingly, Vendor will not offer, promise, or provide any payments, loans, gifts of money, or anything of value to secure an improper advantage or for a corrupt purpose as described in applicable law. By executing this Order, Vendor agrees to comply at all times with Datadog's Vendor Code of Conduct, a current version of which is available at https://www.datadoghq.com/legal/vendor-code-of-conduct/ and the Datadog Vendor Travel and Expense Policy, found here: https://www.datadoghq.com/legal/vendor-travel-policy/, both hereby incorporated by reference. 11) Assignment and Subcontracting

·Vendor shall not assign or subcontract any part of the Work without Datadog's prior written consent. No assignment or sub-contract shall relieve Vendor of any of its obligations under this Order and/or any incorporated Contract. Vendor shall ensure that these Terms and any incorporated Contract will be included in all subcontracts entered into by Vendor in connection with the Work. 12) Governing Law and Jurisdiction

·To the extent permissible under applicable law, the Order, these Terms, and any incorporated Contract shall be governed, construed and interpreted in accordance with the laws of the State of New York without regard to any conflicts-of-laws rules or principles that might refer the governance or construction to any other jurisdiction. Any and all disputes arising out of, relating to, or resulting from the interpretation of the terms of this Order and/or any incorporated Contract or any breach thereof, including all contract, equity, tort, fraud and statutory claims, shall be brought in the United States District Court for the Southern District of New York or, if such court does not have subject matter jurisdiction, the courts of the State of New York located in New York County, New York. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts. Each party agrees that a final judgment in any such action, litigation or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. 13) Notices

·All notices, requests, consents, claims, demands, waivers and other communications under this Order shall be in writing and addressed to the parties as indicated on the signature page to this Order (or as otherwise specified by a party in a notice given in accordance with this Section 13). Notices sent in accordance with this Section 13 shall be deemed effectively given: (a) when received, if delivered by hand (with written confirmation of receipt); (b) when received, if sent by a internationally recognized overnight courier (receipt requested); (c) on the date sent by email of a PDF document (in each case, with confirmation of transmission), if sent during normal business hours of the recipient, and on the next business day, if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid.

1414) Modification

·No amendment to, or modification of or rescission, termination or discharge of this Order or any incorporated Contract is effective unless it is in writing, identified as an amendment to or rescission, termination or discharge of this Order or such Contract and signed by an authorized representative of Datadog. 15) Severability

·Each provision of this Order and these Terms, except as otherwise herein provided, shall be valid and enforced to the fullest extent permitted by applicable law. If any provision of this Order or these Terms is determined to be invalid or unenforceable as against any person or under certain circumstances, the remainder of this Order and these Terms, and the applicability of such provisions to other persons or circumstances, shall not be affected thereby. 16) Non-Discrimination

·Datadog is an equal opportunity employer and federal contractor or subcontractor. Consequently, the parties agree that, as applicable, they will abide by the requirements of 41 CFR 60-1.4(a), 41 CFR 60-300.5(a) and 41 CFR 60-741.5(a) and that these laws are incorporated herein by reference. These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. These regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability. The parties also agree that, as applicable, they will abide by the requirements of Executive Order 13496 (29 CFR Part 471, Appendix A to Subpart A), relating to the notice of employee rights under federal labor laws. 17) Miscellaneous

·A waiver of any term, condition or default of this Order or any incorporated Contract shall not be construed as a waiver of any other term, condition, or default. It is understood and acknowledged that each party is an independent contractor of the other party, that Vendor is not an employee or agent of Datadog, and that no joint venture or partnership is created by this Order or any incorporated Contract. Vendor has no authority to commit, act for or on behalf of Datadog or to bind Datadog to any obligation or liability. Both parties agree that any term or condition of this Order which by its sense or nature should be deemed to survive the expiration or termination of this Order will so survive. This Order benefits solely the parties and their respective successors and permitted assigns, and nothing in this Order or any incorporated Contract, express or implied, confers on any third party any legal or equitable right, benefit or remedy of any nature whatsoever.