Standard Purchase Agreement

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Standard Purchase Agreement Terms

Any Standard Purchase Document from cPanel shall constitute a binding contract between the parties subject to the conditions of these Standard Purchase Agreement Terms (Agreement). This Agreement shall be effective as of the date set out on the Standard Purchase Document (Effective Date). With the Standard Purchase Document, this Agreement is the entire agreement between cPanel, L.L.C. (cPanel) and the individual or entity set out as the “Seller” in the Standard Purchase Document (Seller). The acceptance of the Standard Purchase Document shall, either by acknowledgment, shipment of products, preparing to or performance of services, or commencement of work on supplies, constitute acceptance of the terms and conditions set forth in this Agreement. The terms and conditions of this Agreement may only be modified in writing by cPanel, and unless specifically permitted in this Agreement, may not be contradicted in the Standard Purchase Document or any acceptance document or correspondence associated with the Standard Purchase Document. Provisions of this Agreement that are optional are indicated in the Standard Purchase Document by the title name set out in this Agreement. They apply if a checkmark is indicated in the Standard Purchase Document.

1. Pricing. Seller shall sell to cPanel the products or services set out on the Standard Purchase Document at the prices set out on it. All prices are inclusive of all items, including tax. cPanel will not accept, nor assume responsibility or liability for material or quantities in excess of those set out on the Standard Purchase Document. No charges of any kind, including charges for boxing or cartage, will be allowed unless specifically agreed to by cPanel in writing. cPanel is not required to accept any item which does not conform to the Standard Purchase Document, the usage of the trade and industry to the contrary notwithstanding.
2. Invoices. Invoices are to be provided to cPanel at the address stated on the Standard Purchase Document. Standard Purchase Document prices include all applicable federal, state and local taxes in effect on the Standard Purchase Document date. Any additional charges that are expressly agreed to on the Standard Purchase Document shall be shown on the invoice. Payment terms are thirty days from the date of final performance, unless a different payment term is expressly set out on the Standard Purchase Document. Payment shall be made in US dollars by credit card, check or ACH at cPanel’s discretion.
3. Default. cPanel may terminate this Agreement in whole or in part for Seller’s default, if Seller (i) fails to fulfill the obligations set out in the Standard Purchase Document within the time set out in it, (ii) fails to perform any other material provisions of this Agreement, or (iii) fails to make progress so as to endanger performance and does not cure such a failure within a period of ten days after the date of notice from cPanel. Should cPanel terminate this Agreement for default as set out in this paragraph, Seller shall be responsible for any excess procurement costs and all other damages incurred by cPanel as a consequence of that default.
4. Termination.
   1. This Agreement shall begin on the Effective Date and shall terminate upon delivery or performance. Unless the Standard Purchase Document expressly states that the Standard Purchase Document is to renew, and contains a renewal period, the Standard Purchase Document shall not renew. Unless the Standard Purchase Document says on its face that it is non-cancellable, cPanel may terminate this Agreement as a whole, or an individual Standard Purchase Document, without any liability, at any time upon the occurrence of certain events, including, but not limited to: (i) default by the Seller with respect to delivery, quality, or other obligations under the Standard Purchase Document; or (ii) insolvency of the Seller or a bankruptcy filing.
   2. Upon termination, cPanel shall be liable only for the price of the work that has been completed as of the date of termination. At no time shall cPanel pay cancellation charges. Upon notification of cPanel’s termination of this Agreement or a Standard Purchase Document, Seller shall immediately stop all work. cPanel will not be responsible for excess material purchase or manufactured necessary to prepare for performance.
5. Confidentiality. Seller agrees to keep confidential from third parties all information obtained from cPanel while performing its obligations covered by this Agreement. Seller shall use the same care in protecting cPanel’s confidentiality as Seller uses in protecting its own confidential information, but no less than reasonable care. Any information provided by cPanel to the Seller shall be on a “need to know” basis within Seller’s organization and shall not be distributed to third parties unless expressly agreed to in writing by cPanel.
6. Warranties.
   1. Seller represents that it is authorized to enter into this Agreement with cPanel, and the individual accepting the Standard Purchase Document has the requisite authority to do so. Seller warrants that all articles provided in the Standard Purchase Document will be merchantable, will be free from defect in material and workmanship, and will conform to applicable specifications, drawings or descriptions furnished by cPanel. Seller warrants that it is authorized to provide the items set out on the Standard Purchase Document to cPanel. Seller hereby expressly warrants for a period of eighteen months after cPanel accepts the items or services that they shall conform to all specifications, drawings, samples and any other description furnished or adopted by cPanel. The items shall be new, of the best quality, sufficient for the purposes intended, merchantable, and free of defects. Seller hereby agrees to be responsible for all defects in design, materials, and workmanship. Replacement products shall be new and subject to full original warranty. All warranties shall run to cPanel and its successors. cPanel's approval of designs furnished by Seller shall not relieve Seller of its obligations under this paragraph. The warranties set out here are in addition to any other warranties given by Seller and warranties created by operation of law.
7. Indemnity. Seller agrees, at its sole cost and expense, to defend, indemnify and hold cPanel and its affiliated companies and their respective officers, agents, employees and customers harmless from any and all claims, expenses (including attorneys’ fees), losses, costs, damages, liabilities and suits based upon, relating to or arising from any alleged defect in the goods or services provided under a Standard Purchase Document, or any other breach of warranty or of any of the provisions of a Standard Purchase Document, or any alleged acts or omissions of Seller or its affiliated companies and their respective officers, agents, employees or subcontractors in the performance of a Standard Purchase Document. In addition, Seller agrees to indemnify cPanel and its successors, assigns, customers and users of its products, against any claims, demands or liability, including costs and expenses, for or by reason of any actual or alleged patent, copyright or trademark infringement arising out of the manufacture, use, sale or disposal of supplies or articles furnished under this Order.
8. Limitation of Liability.
   1. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL CPANEL BE LIABLE TO SUPPLIER FOR: (I) LOST PROFITS; (II) LOSS OF BUSINESS; (III) LOSS OF REVENUES; (IV) ANY CONSEQUENTIAL OR INDIRECT DAMAGES; OR (V) ANY INCIDENTAL, SPECIAL, RELIANCE, EXEMPLARY OR PUNITIVE DAMAGES (IF APPLICABLE), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR ANY OTHER TYPE OF DAMAGES OTHER THAN DIRECT DAMAGES.
   2. If any applicable authority does not allow the Disclaimer or Limitation of Liability stated herein in no event will cPanel be liable to Supplier in the aggregate with respect to any and all breaches, defaults, or claim of liability under this Agreement for an amount greater than the amount of the Standard Purchase Document Fees paid by cPanel to Supplier during the twelve month period preceding a claim giving rise to such liability.
9. Non-transferrable. This Agreement shall not, nor shall any interests set out in it, nor shall the Standard Purchase Document individually, be transferred or assigned by the Seller without the express written consent of cPanel.
10. Choice of law; Compliance with law. This Agreement will be governed by and interpreted in accordance with the laws of the State of Texas without regard to the conflicts of laws principles thereof. Any dispute or claim arising out of or in connection with the Agreement shall be finally settled and exclusively by the state or federal courts located in Harris County, Texas. For purposes of this Agreement, Seller and cPanel hereby irrevocably consent to exclusive personal jurisdiction and venue in the federal and state courts in Harris County, Texas.
11. Notices. All notices or questions relating to this Agreement shall be directed to: cPanel, L.L.C., 2550 North Loop W., Suite 4006, Houston, TX 77092 , Attention: Legal Dept. Any notice required to be given under this Agreement shall be deemed given by cPanel when sent Seller by email, telephone, fax or mail to the contact information supplied by Seller to cPanel its contact information by providing written notice to cPanel at the address above or to legal@cpanel.net. Any failure by Seller to provide cPanel with updated contact information will not invalidate the effectiveness of any notice sent by cPanel to the contact information previously supplied by Seller.
12. Order of Precedence. The terms and conditions stated on the Standard Purchase Document shall govern in the event of any conflict with any terms proposed by Seller and are not subject to change by reason of any written or oral statements by Seller in its acknowledgment of the Standard Purchase Document.
13. Billing dispute. Should cPanel dispute any of the charges set out on an invoice, it shall notify Seller within twenty-nine days of its receipt of such an invoice. cPanel’s notice shall set out in sufficient detail the basis for its dispute. Seller shall have thirty days from the date of such a notice of dispute to reply. Should Seller not reply to cPanel’s notice, cPanel shall not be obligated to pay the disputed amounts. Should Seller disagree with cPanel’s notice of dispute, the parties shall resolve the dispute as set out in the section entitled “Choice of Law.”
14. Provisions that survive termination: 5, 7, 8, 11, and, if applicable 18(b) .
15. Non-solicitation of employees. Beginning on the date of this Agreement and continuing until one year after the date of a notice of termination, Supplier shall not, either for itself or for any other person or entity, directly or indirectly, solicit, induce or attempt to induce any employee of cPanel, or any affiliated entity, to terminate their employment with that party. The parties agree that general solicitation without the intent to solicit an individual shall not be deemed a violation of this provision.
16. No public announcements. Neither party shall make a public announcement regarding a Standard Purchase Document or this Agreement.
17. Optional Clauses.
    1. Delivery. Delivery shall be strictly in accordance with the delivery schedule set out on, or referred to in, the Standard Purchase Document. The term “Delivery Date” shall mean the date the item set out in the Standard Purchase Document is required to arrive at cPanel’s facility, or the facility set out on the Standard Purchase Document. It shall be Seller’s responsibility to arrange for shipment of all items set out in the Standard Purchase Document using a reputable shipper. Seller shall arrange for insurance to cover any loss or damage to the items, at Seller’s expense. Title to the items shall transfer to cPanel upon acceptance of the items by cPanel. Seller shall bear all risk of loss until such a time as the items are accepted by cPanel. If Seller fails to meet the scheduled Delivery Date, cPanel may, at cPanel’s option, cancel the Standard Purchase Document, or any part of the Standard Purchase Document, without incurring any liability. The preceding sentence shall apply even if the proximate cause of such a delay is a result of a third party delay prior to acceptance by cPanel.
    2. Contractor represents and warrants that the Contractor is either the author of all deliverables to be provided under this Agreement or has obtained and holds all rights necessary to carry out this Agreement. Contractor further represents and warrants that the Services to be provided under this Agreement do not and will not infringe any copyright, patent, trademark, trade secret or other intellectual property right of any third party.
    3. Damage to Property.
       1. Seller shall be responsible for loss or damage to cPanel’s property caused by the negligence or wrongful acts or omissions of Seller, its representatives or employees.
       2. If Seller's work under the Standard Purchase Document involves operations by Seller on the premises of cPanel or one of its customers, Seller shall take all necessary precautions to prevent the occurrence of any injury to person or property during the progress of such work and, except to the extent that any such injury is due solely and directly to cPanel's negligence, shall indemnify cPanel against all claims, demands, liability or loss which may result in any way from any act or omission of the Seller, its agents, employees, or subcontractors, and Seller shall maintain such public liability, property damage and employers' liability and workers' compensation insurance as will protect cPanel from said risks and from any claims under any applicable workmans’ compensation acts.