DOT HILL PURCHASE ORDER TERMS AND CONDITIONS
1. ENTIRE AGREEMENT.
1.1. Terms and Conditions. The terms and conditions set forth below, together with those appearing on the face of any purchase order issued by Dot Hill Systems Corp. (“Dot Hill”) to a supplier of Dot Hill (“Order”), and any document incorporated by reference (collectively, the “Agreement”) constitute the complete and exclusive agreement, terms and conditions that govern the Order and related relationship between Dot Hill and the supplier (“Supplier”).
1.2. An Order is an offer to purchase the Supplier’s Goods and/or Services under the terms described in the Order only, without modification. Supplier shall accept an Order in writing, however, Supplier’s commencement of performance may be deemed acceptance of the Order in Dot Hill’s discretion.
1.3. Additional Terms Are Proposals. Any additional or different terms in Supplier’s acceptance or other document will be construed as proposals and will not become part of the Agreement (and Order) unless Dot Hill agrees in writing to the additional terms.
1.4. Existing Agreement. If there is an existing formal written agreement with Supplier governing Dot Hill’s purchase of Supplier’s Goods or Services, then the terms in the formal written agreement will supersede any contrary terms in this Agreement.
2. PRICES AND INVOICES.
2.1. Price. Supplier shall sell to Dot Hill the goods (“Goods”) and/or services (“Services”) shown on the face of an Order issued by Dot Hill at the prices specified on the Order; except as otherwise provided in an Order, the prices are exclusive of applicable freight charges and duties. Supplier warrants that such prices are best in class and are the lowest prices charged by Supplier to other similarly-situated customers for similar quantities of similar Goods or Services.
2.2. Payment Terms. Payment terms are net sixty (60) days from Dot Hill’s receipt of a valid invoice. No invoice may be dated or submitted earlier than the date of delivery of the Goods to the location specified on the Order, or the date of the performance of the Services (“Delivery Date”). Payment and price quotes will be in U.S. currency unless otherwise specified in an Order. Dot Hill, at its option, and without prior notice to Supplier, shall have the right to set-off or deduct from a Supplier’s invoice, any credits, refunds, or claims of any kind due to Dot Hill by Supplier.
2.3. Last Quoted Price. If no price is specified in an Order, the Supplier’s price must be equal to or less than the last price Supplier previously quoted or charged Dot Hill.
2.4. Not Acceptance. Payment by Dot Hill shall not constitute acceptance of Goods or Services, and will not impair Dot Hill’s right to inspect or reject Goods or Services.
2.5. Commercial Invoice. Supplier shall issue a commercial invoice containing such information as Dot Hill may reasonably request, including, but not limited to: invoice number; invoice date; name and address of the shipper; name and address of Supplier; detailed description of the Goods; model numbers; Dot Hill part numbers; serial number; Dot Hill assigned Harmonized Tariff Schedule (HTS) number; quantity (in numbers or weight as appropriate); country of origin for each Good; sales tax as a separate line item; unit price of each Good; currency; incoterms; carrier name, and bill of lading number. The invoice must be issued in English as well as the language required by the country to which the Goods are shipped or Services performed.
2.6. Prepay & Add. If an Order says “prepay & add,” then Supplier must prepay all shipping costs and include the actual shipping costs on the invoice as a separate line item.
2.7. Prices All Inclusive. Except for “prepay & add” and sales tax charges, the price in an Order includes all charges and expenses for which Dot Hill shall be responsible with respect to the Order, including delivery, performance and licenses necessary to use, exercise ownership over or benefit from the Goods or Service. If the price is based on weight of the Goods, the weight ordered excludes the weight of any packaging.
3. SHIPMENT AND DELIVERY.
3.1. On Time Delivery is defined as plus three days early or minus zero days late from the Delivery Date to the location specified on the Order. This may be modified in Dot Hill’s discretion. Dot Hill may cancel an order that is not delivered on time. Supplier shall be responsible for, and shall reimburse Dot Hill, for any damages suffered by Dot Hill due to late delivery.
3.2. Portion of Goods or Services Available. If only a portion of Goods is available for shipment to meet the Delivery Date, Supplier shall promptly notify Dot Hill and ship the available Goods unless directed by Dot Hill to reschedule shipment. If Supplier ships Goods by a method other than specified in the Order, Supplier shall pay any resulting increase in the cost of freight incurred over that which would have been incurred had Supplier complied with Dot Hill’s shipping instructions.
3.3. Portion of Services Performed. If only a portion of the Services can be performed on the Delivery Date, Supplier shall promptly notify Dot Hill and perform such Services unless directed by Dot Hill to reschedule performance.
3.4. Untimely Shipment. Supplier shall give Dot Hill two weeks’ prior notice of late deliveries. Every effort will be made to correct the delinquency, and the Supplier will bear all expedite charges (including air transportation) needed for on-time delivery, or to minimize late delivery.
3.5. Early Delivery or Over Shipment. If Goods are delivered more than three days prior to the Delivery Date, Dot Hill may, in its discretion, return Goods at Supplier’s expense or delay processing the corresponding invoice until the Delivery Date. If Supplier makes a shipment that is in excess of the quantity specified in the Order, Dot Hill may return excess Goods at Supplier’s expense. Supplier shall be responsible for all risk and expenses to return the over shipments and early shipments to Supplier.
3.6. Shipment Terms. Unless otherwise agreed to by the parties or as set forth on an Order, Goods shall be shipped, and title and risk of loss shall pass to Dot Hill at the dock of the receiver (Dot Hill or a third party designated by Dot Hill). Supplier shall be responsible for transporting Goods to the receiving dock with the status that it is cleared for entry, at which point delivery shall be complete.
3.7. Protection of Goods. Supplier shall preserve, package, handle, and pack Goods so as to protect Goods from loss or damage in transit and in conformance with good commercial practice, any Dot Hill specifications, government regulations, and other applicable requirements. Regardless of when title and/or risk of loss passes from Supplier to Dot Hill, Supplier shall be responsible for any loss or damage due to its failure to properly preserve, package, handle, or pack Goods. Dot Hill shall not be required to assert any claims for such loss or damage against the carrier involved.
3.8. Packing List. Each delivery of Goods to Dot Hill shall include a packing list that contains at least: (i) the Order number; (ii) the Dot Hill part number; (iii) the quantity shipped; and (iv) the date of shipment. The packing list must agree with the information on the commercial invoice.
3.9. Supplier Managed Inventory (SMI). If the goods are to be delivered through a “Just-In-Time” (JIT), “Supplier Managed Inventory” or “3rd Party Logistics” (3PL) facility, the delivery destination is not the JIT, SMI or 3PL facility, but the Dot Hill designated facility that receives the Goods after the Goods are shipped from the facility. Title of Goods will pass to Dot Hill when received at the delivery destination.
4. CANCELLATION, RESCHEDULING and CHANGES
4.1. Change or Cancellation. Dot Hill may, without charge, change or cancel any portion of an Order (including quantity and delivery locations) provided Dot Hill gives Supplier notice as follows:
- 4.1.1. For Customized Goods (i.e., supplied exclusively in accordance with Dot Hill’s designs and cannot be used by any other of Supplier’s customers) at least thirty (30) calendar days prior to the Delivery Date.
- 4.1.2. For standard Goods or Services (i.e., all Goods other than Customized) at least ten (10) calendar days prior to the Delivery Date.
4.2. Actual Costs. If Dot Hill changes or cancels any portion of an Order after the time periods specified in Section 4.1., Dot Hill shall reimburse Supplier for its actual and reasonable out-of-pocket costs that it is not capable of mitigating using industry standard methods and commercially reasonable efforts. To be reimbursed, Supplier must submit a request for reimbursement within thirty (30) days of Dot Hill’s notice of cancellation. Upon receiving Dot Hill’s notice of cancellation, Supplier must immediately stop all work in progress. Dot Hill shall have the option to purchase Supplier’s work in progress, including any raw materials Supplier may have obtained to use in Supplier’s work. Dot Hill’s price to purchase Supplier’s work in progress will be prorated price based on the percentage of work remaining to be completed. Dot Hill’s price to purchase any raw materials will be Supplier’s actual cost. Supplier is not entitled to any other remedy for cancellation of an Order except as provided in this section.
4.3. Change of Designs or Specifications. Dot Hill may, effective upon notice to Supplier, change Dot Hill’s designs or specifications at any time prior to shipment of the corresponding Goods or receipt of the corresponding Services. If any such change directly affects the prices or delivery schedules of Goods or Services, an equitable adjustment shall be made, provided that Supplier makes and Dot Hill accepts a written claim for an adjustment prior to shipment of Goods or provision of Services. If the parties are unable to agree upon the amount of the adjustment, Dot Hill may terminate the Order as per Sections 4.1 and 4.2.
4.4. No Process or Design Changes. Supplier shall not, without prior written consent from Dot Hill, make any process, design, or component changes (including source of components) to Goods or Services that have been shipped to or performed for Dot Hill within the last two (2) years.
4.5. Forecasts. Any forecasts provided by Dot Hill are only an accommodation to Supplier, and shall not constitute a commitment of any type by Dot Hill.
4.6. Rescheduling. Dot Hill may reschedule delivery of Goods or performance of Services at any time prior to the Delivery Date without liability. The new Delivery Date or performance shall not be more than one hundred and eighty (180) days beyond the originally scheduled date.
5. QUALITY AND WARRANTY.
5.1. Quality Control. Supplier shall maintain an objective quality program for all Goods and Services in accordance with any specification applicable to the Goods or Services, including those specifically set forth in an Order or otherwise supplied by Dot Hill. If no such specification is supplied, then the quality program shall be in accordance with industry standards. Supplier shall, upon Dot Hill’s request, provide Dot Hill a copy of Supplier’s quality program and supporting test documentation.
5.2. Warranties. Supplier warrants that all Goods and Services: (i) shall conform strictly to the design criteria, specifications, descriptions, drawings, samples, and other requirements applicable to the Goods or Services; (ii)shall be free from defects in design, material, and workmanship; (iii) shall be free of all liens, encumbrances, and other claims against title; (iv) do not infringe any patent, trademark, copyright or other intellectual property right of a third party; (v) Goods are new and do not contain any used or reconditioned parts or materials; and (vi) Services will be performed in a professional manner consistent with the prevailing standards of care and skill.
5.3. Survival of Warranties. All warranties specified in Section 5.2 shall: (i) survive any inspection, delivery, acceptance, or payment by Dot Hill (ii) be in effect for the longer of Supplier’s normal warranty period and thirty-nine (39) months following the date of acceptance of the Goods and/or Services by Dot Hill (“Product Warranty Period”) and (iii) run to Dot Hill and its successors, assigns, and its customers.
5.4. Warranty Remedies. If any Goods or Services breach a warranty, Dot Hill may, at its option, and without additional cost to Dot Hill,
- 5.4.1 require Supplier to repair or replace the Goods with complying Goods within five (5) business days of Supplier’s receipt of the non-conforming Goods (to be shipped to and from Supplier at Supplier’s risk and expense);
- 5.4.2 require Supplier to re-perform any Services within five (5) business days of Dot Hill’s notice of non-conformance until the Services meet the warranties;
- 5.4.3 return any Goods at Supplier’s risk and expense for a full refund to be issued within five (5) business days;
- 5.4.4 correct the non-conformance and charge Supplier for the cost to make the correction and/or;
- 5.4.5 engage a third party to provide substitute goods or services and charge Supplier for the costs of obtaining the substitute goods or services from the third party.
5.5 General Remedy. If Supplier breaches any representations or warranty herein, it shall take any and all actions, at its own expense, to ensure compliance with the representations and warranties. If a Good breaches its Product Warranty, Dot Hill shall have the right, in Dot Hill’s sole discretion and at Supplier’s expense, to take any and all actions reasonably necessary to mitigate damages to Dot Hill or its customers arising from such breach, including, but not limited to (i) modifying the Goods; (ii) requiring Supplier to fix the Goods; (iii) contracting with others to modify or fix the Goods and (iv) distributing to Dot Hill’s customers any such modification or replacement Goods.
5.6. Epidemic Failure Warranty. In addition to the warranties specified above, Supplier warrants all Goods against Epidemic Failure (as defined below) found to exist in Goods during the first five (5) years after shipment (Epidemic Failure Period). An Epidemic Failure shall mean a Good’s failure to conform to the warranties (or other defect) herein during the Epidemic Failure Period for the same or similar root cause, as follows: (the “Epidemic Failure Rate”):
5.6.1 A failure rate that exceeds 0.30% for units of similar Goods shipped to Dot Hill (or to a Dot Hill designated purchaser on Dot Hill’s behalf) during any rolling three-month period or single date code population/production lot of such Goods;
5.6.2 A failure rate that exceeds 0.35% of any Good or product family of Goods by product number(s) occurring within any twelve-month rolling period;
5.6.3 A failure that occurs due to lack of compliance with a safety standard applicable to the Goods; or
5.6.4 A failure that occurs due to lack of compliance with legislation or regulation regarding energy efficiency, material content of design for end-of-life disposition.
If an Epidemic Failure occurs after the Epidemic Failure Period due to Supplier’s gross negligence or the failure to comply with subsection (c) or (d) above, then in either such instance Dot Hill may require that the Epidemic Failure be treated as one that fell within the Epidemic Failure Period.
5.7 Epidemic Failure Remedy. In the event of an Epidemic Failure, Dot Hill may cancel all open Orders for the effected Goods without additional cost, penalty or responsibility.
5.8 Epidemic Failure Procedure. Within two (2) business days of receipt of notice from Dot Hill of a suspected Epidemic Failure, Supplier shall provide preliminary findings regarding the potential cause and thereafter promptly provide the results of its on-going root cause corrective analysis. Within five (5) business days of receipt of notice from Dot Hill, Supplier shall provide its proposed plan for the identification of and the repair and/or replacement of the affected Goods, and other reasonable and appropriate information.
5.9 Epidemic Failure Remedy. In the event of an Epidemic Failure, Dot Hill has the option of having Supplier, at Supplier’s expense: (i) sort, screen, repair and/or replace the Goods, including installed Goods at customer sites, which are subject to such Epidemic Failure; and/or (ii) implement a Corrective Action Program, as defined, below. The parties will mutually agree on the time required to complete servicing/correction of such Goods.
5.10 Epidemic Failure Corrective Action. If Dot Hill chooses to implement a Corrective Action Program, the parties shall work together to expeditiously devise and implement a mutually acceptable corrective action program which minimizes disruption to the end users and Dot Hill’s distribution channels (the “Corrective Action Program”). The Corrective Action Program shall identify all costs related to the Epidemic Failure including, without limitation: material costs, labor costs (and associated housing and travel costs), freight costs, equipment costs and screen costs. The parties agree to negotiate in good faith any revisions to the Corrective Action Plan to address additional reasonable costs. Supplier shall be responsible for all reasonable costs incurred by either party, or any third party, in carrying out the Corrective Action Plan
5.11. Failure to Take Corrective Action. If Supplier fails to act promptly with respect to any aspect of an Epidemic Failure situation, Dot Hill may, in addition to its other rights and remedies, take action independently and require that Supplier reimburse Dot Hill within ten (10) days of being invoiced by Dot Hill for all reasonable actions taken.
5.12 Remedies Nonexclusive. The remedies set forth herein are in addition to any other remedies available to Dot Hill in law or equity. Dot Hill’s review, approval or acceptance of Supplier’s materials or designs will not relieve Supplier of the warranties.
If Goods or Services include software, firmware, documentation, instructions or any other licensable intellectual property, (“Intellectual Property”) Supplier grants to Dot Hill a non-exclusive, royalty-free, worldwide license to use, reproduce, display, modify, maintain, support, service, create derivatives of, and distribute such Intellectual Property for internal use and sublicense such Intellectual Property directly or as integrated into Dot Hill products to third parties. Such license will also include the right of Dot Hill to sublicense third parties to use and reproduce the Intellectual Property for Dot Hill’s internal use and for use in conjunction with a Dot Hill product.
7. INDEMNIFICATION AND INSURANCE.
7.1. General Indemnification. Supplier will defend and indemnify Dot Hill and its directors, officers, employees, agents, shareholders, owners, customers, affiliates, assigns, and subcontractors (“Indemnitees”) against any claim, losses, demands, fees, damages, liabilities, costs, expenses, obligations, causes of actions, suits or injuries of any kind or nature (“Claims”) arising out the Goods, the Services, or of Supplier’s performance under this Agreement (including an Order).
7.2. Insurance. Supplier agrees to maintain appropriate worker’s compensation insurance for its employees as well as commercial general liability insurance and errors and omissions in the following amounts: three (3) million ($3,000,000 USD) General Liability insurance; and in excess of three (3) million ($3,000,000 USD) property insurance. Upon Dot Hill’s written request, Supplier will provide Dot Hill with proof of such coverage in the form of a Certificate of Insurance and name Dot Hill as an additional insured. Supplier further agrees to notify Dot Hill of any changes in such insurance coverage. Supplier’s insurance must include a waiver of the insurer’s subrogation rights against Dot Hill, unless prohibited by law.
7.3. Intellectual Property Indemnification. Supplier agrees to defend, indemnify, and hold harmless Dot Hill and Indemnitees from and against all Claims (whether or not substantiated) that Goods or Services constitute an unauthorized use or infringement of any third party’s patent, trademark, service mark, trade secret, mask work right, copyright, or any other intellectual property right. Without limiting the foregoing, Supplier will pay all costs, damages and expenses (including reasonable attorneys’ fees) incurred by Dot Hill and Indemnitees and will pay any award with respect to any such Claim or agreed to in settlement of that Claim.
8. INTELLECTUAL PROPERTY RIGHTS
8.1. Pre-existing Intellectual Property. Dot Hill owns all intellectual property rights related to any information, materials, equipment, specifications, technology or other items Dot Hill may provide to Supplier (“Dot Hill Materials”). Supplier may use Dot Hill Materials only for the benefit of Dot Hill and for the purpose of supplying Dot Hill with Goods and Services. Supplier shall return any and all Dot Hill Materials within five (5) business days of Dot Hill’s written request.
8.2. Removal of Dot Hill’s Trademarks. To the extent Supplier and Dot Hill have agreed that Goods shall be private-labeled with Dot Hill’s trade names, trademarks, product numbers, serial numbers or other such marks (“Dot Hill Marks”), Supplier shall remove Dot Hill Marks from all Goods rejected, returned or not purchased by Dot Hill.
Except as required for Supplier’s fulfillment of an Order, Supplier shall not use or disclose any Confidential Information obtained from Dot Hill and shall protect the Confidential Information with the same degree of care as Supplier uses for its own similar information, but no less than reasonable care. Confidential Information includes, without limitation, all information designated by Dot Hill as confidential (either in writing or verbally) or information that a reasonable person would believe to be confidential given the nature of the information or circumstances of disclosure.
Supplier will at all times comply with all federal, state, local and foreign laws, rules and regulations applicable to its provision of Goods and Services to Dot Hill, and its performance with respect to any Order. Supplier shall furnish to Dot Hill any information needed to enable Dot Hill to comply with any law, rule, or regulation or reasonably requested by Dot Hill to confirm such compliance. Supplier shall comply with all requirements set forth on Exhibit 1, or shall notify Dot Hill, in writing, of its inability to do so citing specifically those sections with which it cannot comply. Each party agrees to comply with the U.S. Foreign Corrupt Practices Act and all relevant export laws and regulations of the United States and the country or territory in which the Goods are provided (“Export Laws”) to ensure that no Goods, Dot Hill Materials, or other information is (i) exported, directly or indirectly, in violation of Export Laws or (ii) intended to be used for any purposes prohibited by the Export Laws, including without limitation nuclear, chemical, or biological weapons proliferation.
11.1. Default by Supplier. If Supplier fails to perform or breaches any provision of an Order or this Agreement, Dot Hill may terminate the Order in whole or in part. The term “breach” shall include Supplier’s bankruptcy, insolvency, failure to provide Dot Hill with reasonable assurances of performance upon Dot Hill’s request, or failure to conduct business in the normal course due to a financial issue or any other reason.
11.2. Termination. If Dot Hill terminates an Order as provided in Section 11.1, Dot Hill may procure, upon such terms and in such manner as Dot Hill deems appropriate, Goods or Services similar to the Goods or Services on the terminated Order. Supplier shall reimburse Dot Hill upon demand for all additional costs incurred by Dot Hill in purchasing such similar Goods or Service.
12. IMPORT REQUIREMENTS.
12.1. Certification. Upon Dot Hill’s request, Supplier shall provide Dot Hill with an appropriate certification stating the country of origin for Goods sufficient to satisfy the requirements of (i) the customs authorities of the country of receipt and (ii) any applicable Export Laws.
12.2. Importer of Record. If any Goods are imported, Supplier shall, when possible, allow Dot Hill to be the importer of record, unless otherwise requested by Dot Hill. If Dot Hill is not the importer of record and Supplier obtains duty drawback rights to the Goods, Supplier shall, upon Dot Hill’s request, provide Dot Hill with documents necessary to transfer duty drawback rights to Dot Hill.
13. TECHNICAL SUPPORT
13.1 General. Supplier understands that Dot Hill has an obligation to provide 24×7 technical support for its own products to its customers. Supplier agrees to provide high-level technical support to Dot Hill with respect to Goods and Services, to help trouble shoot issues that Dot Hill is not capable of handling without Supplier’s help. Supplier shall have qualified personnel available to respond to facsimile, e-mail and telephone requests from Dot Hill 24x7x365, and will provide such support around the clock until the issue is resolved to Dot Hill’s reasonable satisfaction. If required to resolve an issue, Supplier will provide field service support to Dot Hill, at Supplier expense. Supplier shall provide Dot Hill with such technical support for not less than five (5) years after the last delivery date of Product unit.
13.2 RMA and Root Cause Analysis. Upon Dot Hill’s request and free of charge, Supplier shall perform root cause and failure analysis on any defective Good or Service and provide initial report findings within two (2) business days and a more detailed report within ten (10) business days after receiving the defective Good from Dot Hill or receiving notice of the defective Service. Thereafter, Supplier shall continue to perform analysis until findings are made to the satisfaction of both parties. Root Cause Analysis reports shall contain that information, and be in a form, as Dot Hill reasonably requests.
13.3 Bug or Error Information. Supplier shall permit Dot Hill to have access to Supplier’s records and information that are relevant to root cause analysis or other aspects of the technical support of Goods and Services free of charge. Supplier shall provide any bug or error reports to Dot Hill upon request. Dot Hill shall treat such reports as Supplier’s Confidential Information, however, Supplier grants to Dot Hill the right to use, copy, distribute and disclose such data for purposes of resolving customer support issues with respect to the Goods.
14.1. No Assignment. Supplier shall not delegate or assign its rights or obligations without Dot Hill’s prior written consent. Any attempted delegation or assignment without such consent shall be void.
14.2. Waiver of Terms and Conditions. The waiver of any term or condition of an Order or this Agreement must be in writing. No such waiver shall be construed as a waiver of any other term or condition except as provided in writing, nor as a waiver of any subsequent breach thereof.
14.3. Publicity. Supplier shall not make or authorize any news release, advertisement, or other disclosure to any third party which shall deny or confirm the existence of an Order or reveal the terms of this Agreement or an Order without prior written consent of Dot Hill.
14.4. Choice of Law. This Agreement and all Orders shall be governed by and construed in accordance with the laws of the State of Colorado excluding its choice of law provisions. The United Nations Convention on Contracts for the International Sale of Goods (CISG) is specifically excluded and shall not be applicable to any transaction between Supplier and Dot Hill. The parties agree to resolve all disputes or claims stemming from this Agreement, an Order or the provision of Goods or Services to Dot Hill through an arbitration conducted in Boulder County, Colorado, with the American Arbitration Association and under the Commercial Arbitration Rules. Any arbitration pursuant to this Agreement shall be final and binding on the parties. Each party shall bear its own expenses and shall share equally the administrative expenses of the hearing, including, without limitation, arbitration fees and the expenses of a court reporter.
14.5. Discontinuance of Goods. Supplier shall provide at least one (1) year written notice to Dot Hill prior to the discontinuance of any Good or Service that has been purchased by Dot Hill within two (2) years of the notice date. Such notice shall include, at a minimum, Dot Hill part numbers, substitutions, and last date that orders will be accepted for such Goods or Services.
14.6. Limitation of Liability. In no event will either party be liable to the other for indirect, special, incidental or consequential damages based on contract, tort or other legal theory. Notwithstanding the foregoing, Supplier will be responsible for any damages of any kind arising out of its indemnification obligations.
14.7. Non-Restrictive Relationship. Nothing in this Agreement will be construed to preclude Dot Hill from independently developing, acquiring from other third parties, distributing or marketing other Goods or Services which may perform the same or similar functions as those provided by Supplier.
14.8 Audit. Dot Hill reserves the right to have access to any of Supplier’s or Supplier’s subcontractor’s records or facilities reasonably related to Supplier’s performance of its obligations under this Agreement or with respect to any Order for purposes of audit and verification of its compliance therewith. In Dot Hill’s discretion, such audits may be performed by Dot Hill or by an independent auditor selected by Dot Hill during normal business hours and upon reasonable notice. Supplier shall retain any records applicable to its performance under this Agreement or any Order for six (6) years or as required by law. Supplier shall use best efforts to secure these audit rights with its subcontractors on behalf of Dot Hill.
14.9 Notice. All notices required hereunder shall be in writing, and shall be deemed given when transmitted personally, by email (provided such email is subsequently confirmed by evidence of receipt) or by a recognized national or international courier service and addressed as follows:
- To Supplier: If sent to Supplier’s highest ranking financial officer.
- To Dot Hill:
- Dot Hill Systems Corp.
- 1351 S. Sunset Street
- Longmont, CO 80501
- Attention: Chief Financial Officer
Notice shall be deemed given upon confirmed delivery or an attempt to deliver which is refused.
14.10 Severability. If any provision of this Agreement or an Order is held to be invalid or unenforceable, such provision shall be deemed null and void and the remaining provisions of this Agreement or an Order shall remain in full force and effect. The parties shall substitute for the affected provision an enforceable provision that approximates the intent and economic effect of the affected provision.
Social and Environmental Compliance Requirements
1. Supplier hereby agrees to comply with the following rules, regulations and/or codes:
- a. United States Federal Acquisition Regulation (“FAR”) 52.203-13 (Code of Ethics and Conduct if the contract exceeds $5,000,000 and performance exceeds 120 days); FAR 52.219-8 (Use of Small Businesses); FAR 52.222-26 (Equal Opportunity); FAR 52.222-35 (Equal Opportunity for Veterans if the contract exceeds $100,000); FAR 52.222-36 (Workers with Disabilities); FAR 52.222-37 (Employment Reports on Veterans); FAR 52.222-39 (Notice or Rights Regarding Unions); FAR 52.222-41 (Text Messaging While Driving); FAR 52.222-50 (Trafficking in Persons); 52.244-6 (Subcontracts for Commercial Items) and Executive Order 11246 (Employment Discrimination);
- b. all provisions of the Electronics Industry Citizenship Coalition Code of Conduct (“EICC”);
- c. for those Suppliers that provide warehousing, hubbing or carrier services for DOT HILL, the Suppliers must be TAPA certified and provide copies of TAPA certification to DOT HILL upon request;
- d. for those Suppliers that will ship product or components manufactured outside of the United States into the United States, the Suppliers must be C-TPAT certified and provide copies of C-TPAT certification to Dot Hill upon request; and
- e. the provisions of the following if applicable: 41 CFR §60-1.4(a); 29 CFR Part 471; 41 CFR 60-300.5(a) and 41 CFR 60-741.5(a)
Supplier shall contact Dot Hill if it needs access to copies of the foregoing rules, regulations or codes.
2. Supplier shall take adequate measures to ensure that the provisions of this Exhibit are communicated to its employees. A breach of these provisions shall be considered a material breach of Agreement (including any Orders) between Supplier and Dot Hill.
3. Supplier hereby authorizes Dot Hill and its designated agents to engage in monitoring activities to verify compliance with the provisions of this Exhibit and any law, rule or regulation that applies to Supplier. Supplier agrees to work with Dot Hill to ensure compliance. Such actions may include:
- a. Dot Hill’s conducting on-site inspections and review of records;
- b. meetings or conference calls with Dot Hill as requested by Dot Hill to review Supplier’s compliance;
- c. the provision of applicable certifications as requested by Dot Hill;
- d. the issuance of reports with respect to Supplier’s compliance activities as requested by Dot Hill.