Canada Product Supply Attachment (Attachment F)
Last modified: June 23, 2023
This Attachment will apply to the extent that Google orders any Product (defined below). To the extent this Attachment and the body of the ISA conflict, this Attachment will govern.
| 1. | Definitions. | |||||
| 1.1 | “Defect” or “Defective” means, with respect to a Product, a failure to meet the Product warranties in Sections 8.1 (Product Specifications) and 8.2 (Product Quality) of this Attachment. | |||||
| 1.2 | “Product” means any tangible goods or non-customized software licensed or sold by Contractor. | |||||
| 1.3 | “Warranty Period” means the 12-month period starting on the date Google accepts a Product, unless otherwise noted in the purchase order or SOW. | |||||
| 2. | Ordering Product and Services. | |||||
| 2.1 | Ordering. Contractor will provide Products at the prices, delivery dates, and delivery locations for Products specified in the purchase order or SOW. | |||||
| 2.2 | Changes. Google may reschedule Products or change the delivery destination for Products at no cost to Google, except that if requested changes materially increase or decrease the cost to provide Products, the parties will negotiate an appropriate adjustment to their obligations under the purchase order or SOW. | |||||
| 3. | Product Payment. | |||||
| 3.1 | Product Invoices. Contractor will invoice Google upon Google’s acceptance of the Products. Correct invoices for Product will include, at a minimum, complete bill-to address, Product part numbers and quantities, description of Products, unit prices, applicable tax or other charges, and extended totals. Google is not required to pay any invoice submitted 180 days or more after a Product is shipped. | |||||
| 3.2 | Product Taxes. For Products provided from Canada and the United States, Taxes are not included in the fees and will be separately itemized on Contractor's invoices if applicable. Otherwise, Taxes are included in the fees. | |||||
| 4. | Product Delivery. | |||||
| 4.1 | Product Shipping. | |||||
| (A) | Delivery Terms; Title Transfer. Unless otherwise specified in the purchase order or SOW, Contractor will deliver Products FCA (Incoterms 2020) to the applicable delivery destination. Title and risk of loss will transfer from Contractor to Google at the delivery destination. | |||||
| (B) | Trade Compliance. When Contractor is responsible for exporting or importing Product, Contractor will obtain all authorizations and permits necessary to fulfill all applicable governments’ requirements for Product shipment. | |||||
| (C) | Import/Export Information. Upon Google’s request, Contractor will provide Google with any information Google reasonably requests regarding Product importation, exportation, or distribution. | |||||
| 4.2 | Product Packing. Contractor will package Products according to any instructions Google provides in the purchase order or SOW, and if none are provided, then according to good commercial practice to ensure safe arrival of the Products. | |||||
| 4.3 | Advance Delivery. Google may refuse any delivery made more than 5 days before the delivery date and Contractor will re-deliver the Product on the correct date at Contractor’s expense. | |||||
| 4.4 | Excess Product. Google may return to Contractor, at Contractor’s expense, any quantity of Product exceeding that specified in the purchase order or SOW. | |||||
| 4.5 | Late Product Delivery. | |||||
| (A) | If a Product shipment (or part of a shipment) is likely to be delayed, Contractor will: (1) promptly notify Google in writing and immediately propose a new delivery date, (2) use best efforts to expedite delayed Product at Contractor’s expense, and (3) issue Google a discount or refund on the purchase price for Product delivered late, unless otherwise agreed by the parties. | |||||
| (B) | In addition to the remedies in Subsection (A), Google may (1) cancel without liability the applicable purchase order or SOW or portions of the purchase order or SOW for delayed Product that is not yet delivered, or (2) source replacements for delayed Product from another supplier, at Contractor’s reasonable expense. | |||||
| 5. | Inspection; Acceptance; Rejection; Defect Replacement. | |||||
| 5.1 | Inspection. Google may inspect Product on delivery. | |||||
| (A) | Acceptance. Any Product not rejected within 30 days of receipt will be deemed accepted by Google. Google’s payment to Contractor for Product will not be treated as acceptance. | |||||
| (B) | Rejection. At Google’s option, Google may: (1) return rejected Products, and Contractor will immediately replace returned Products, at Contractor’s expense, including all freight costs; or (2) use the Defective Products and obtain a reduction in price. | |||||
| 5.2 | Defect Replacement Procedure. | |||||
| (A) | Remedies. For Product that is discovered Defective during the Warranty Period, Contractor will, at its expense and at Google’s option: | |||||
| (1) | replace or repair Defective Product and re-deliver such repaired or replaced Product to Google within a commercially reasonable time frame agreed to by Google, | |||||
| (2) | refund Google the Product purchase price within 30 days of receiving Google’s notice that a Product is Defective, or | |||||
| (3) | reimburse Google for the reasonable cost to have the Product repaired within 30 days after receiving Google’s invoice. | |||||
| (B) | Costs. Contractor is responsible for all costs, damages, and liabilities incurred by Google as a result of Defective Product. | |||||
| (C) | Google Property. All Products undergoing repair will at all times remain Google’s property. | |||||
| (D) | Warranty. Contractor will warrant replacement Product for the longer of 90 days following Google’s acceptance of the replacement Product or the remainder of the original Product’s Warranty Period. | |||||
| 6. | Product License; Limitations. | |||||
| 6.1 | Product License Grant. | |||||
| (A) | Developed IP. For those portions of a Product that are Developed IP, ISA Section 4.3 (Intellectual Property and Deliverables; Developed IP; Deliverables) will apply. | |||||
| (B) | Other Products. For those portions of a Product that are not Developed IP, Contractor grants to Google, its affiliates, distributors, and end users a perpetual, irrevocable, non-exclusive, worldwide, fully paid-up, royalty-free license to modify, sell, offer for sale, import, and otherwise use and dispose of the Product, including any bug fixes, updates, or upgrades developed by Contractor for the respective Product. | |||||
| 7. | Failure Analysis. Upon Google’s request, Contractor will perform a failure analysis of any returned Product that is suspected to be Defective. Contractor will use reasonable efforts to provide Google 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. | |||||
| 8. | Representations and Warranties. Contractor represents and warrants that: | |||||
| 8.1 | Product Specifications. The Products will comply with applicable specifications (in order of ascending precedence): (A) readily made available by Contractor to its customers; (B) identified in a purchase order or SOW; or (C) as the parties may otherwise agree to in writing. The Products will be of satisfactory quality and reasonably fit for any purpose made known to Contractor. | |||||
| 8.2 | Product Quality. Products will be new, unused, and not refurbished at the time of delivery, and will be safe for any and all normal and foreseeable uses and free from defects in design, materials, and workmanship during the Warranty Period. | |||||
| 8.3 | Title. Google will acquire from Contractor good and clear title to Product free and clear of all liens, security interests, claims, and encumbrances. | |||||
| 8.4 | Software. For software provided by Contractor, 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. | |||||
| 8.5 | Pass-Through. Contractor will, to the extent it is contractually permitted to do so, provide to Google the benefits of manufacturers’ or suppliers’ warranties and guarantees for material or equipment incorporated into the Products, and will perform its responsibilities so that such warranties or guarantees remain in full effect. | |||||
| 8.6 | Conflict Minerals. Contractor will comply with all applicable conflict minerals laws and materials disposal laws. Upon request, Contractor 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. | |||||
| 9. | Additional Defense and Indemnity Terms. | |||||
| 9.1 | Obligations. The following subsections are added to ISA Section 9.1 (Obligations): | |||||
| (A) | any property damage, personal injury, or death related to use of a Product; or | |||||
| (B) | any allegation that use, possession, import, distribution, or sale of the Products, alone or in combination with any other product, service, or technology, violates or infringes a third party’s rights, including Intellectual Property Rights. | |||||
| 9.2 | Remedies. If an injunction preventing continued use of any Products is threatened or granted, Contractor will do the following at its sole expense: | |||||
| (A) | procure the right to continue providing the Products in compliance with the Agreement; | |||||
| (B) | modify the Products to make them non-infringing without materially reducing their functionality; or | |||||
| (C) | replace the Products with a non-infringing, functionally-equivalent alternative. | |||||
| 10. | Termination and Survival. Unless otherwise specified in the termination notice, termination cancels without liability all undelivered Products under the applicable purchase order or SOW. Contractor’s obligation to deliver non-cancelled Product and Sections 1, 3 (Product Payment), 5.1(B) (Rejection), 5.2 (Defect Replacement Procedure), 6 (Product License; Limitations), 8 (Representations and Warranties), 9 (Additional Defense and Indemnity Terms), and 10 (Survival) of this Attachment will survive any termination of the Agreement. | |||||
| 11. | Governing Law. 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 and agree that ISA Section 12.19 (Governing Law) will control. | |||||