Master Purchase Agreement

Master Purchase Agreement

Updated June 8, 2023

This Master Purchase Agreement (“Agreement”) is between Gen Digital Inc. and its affiliates as identified in any Order (“Gen”) and the seller or provider of any Solutions as identified in such Order (“Provider”). This Agreement and all terms referenced herein are effective on the earlier of Provider’s written, electronic, click-through or similar acceptance of this Agreement, or on Provider’s provision of any Solutions to Gen, which provision shall be deemed to be and relied on as Provider’s affirmative acceptance of this Agreement as the governing and superseding document, in satisfaction of all contractual and legal requirements. Capitalized terms have the meaning as defined herein.

1. Performance. This Agreement exclusively governs Provider’s provision of products, services, deliverables, licenses, subscriptions, support, or other offering to Gen (individually and collectively, “Solutions”), which will be provided as set forth in each mutually executed order form or statement of work between the parties, or corresponding purchase order issued by Gen in lieu of an order form or statement of work (“Order”). Provider is responsible and liable for the acts, omissions, and breaches by its employees, contractors, suppliers and other third parties engaged by or for Provider (individually and collectively, “Personnel”). In addition, Provider (and not Gen) is responsible for all fees, reimbursement, compensation, benefits, taxes and other amounts due to its Personnel or to a third party (including without limit government bodies) on account of its Personnel.

2. Payment. Undisputed fees are due within sixty (60) days of receipt of invoice. Invoices must include the respective purchase order number and line-item descriptions and must be submitted to Gen no later than sixty days (60) following the date when such amounts and expenses are incurred. Orders and Solutions may only be renewed or extended if and as agreed in a subsequent renewal Order together with Gen’s issuance of corresponding purchase order, and not by automatic renewal. Expenses will be reimbursed only if and up to the amount specified in an Order, and only in compliance with Gen’s Travel and Expense Policy at www.gendigital.com/us/en/procurement/supplier-travel-and-expense-policy/ which terms are fully incorporated herein. Notwithstanding anything to the contrary, Provider may not provide Solutions, or incur or invoice any amounts, unless and until an Order has been fully executed for the Solutions and Gen has delivered a corresponding purchase order for such amounts. Provider may not invoice or collect any amounts not incurred or invoiced in compliance with this Section. Gen will pay all taxes assessed against or due in connection with this Agreement (excluding those due on Provider’s income). If Gen pays withholding taxes in connection with this Agreement, it may deduct such amount from amounts otherwise due hereunder (with the net payment constituting payment in full) and, on Provider’s request, will provide payment documentation sufficient for Provider to request a credit for such amount.

3. Confidentiality. “Confidential Information” means all (a) Personal Data (defined below) and (b) non-public information, data, content and materials (in any form or format) about a party and/or their business, including without limit their Personnel, customers and other third parties, products, services, software, processes or security, or their marketing, financial and other business plans or information, and any other information, data, content and materials identified at the time of disclosure as confidential or proprietary, or which otherwise one would reasonably expect to be confidential or proprietary. To avoid doubt, Gen’s requirements and all Deliverables are Gen’s Confidential Information. Confidential Information may only be used by a recipient in performance under this Agreement and the applicable Order, and with at least a reasonable degree of care. As between the parties, all right, title and interest in and to Confidential Information will remain solely with the discloser. Neither party may allow a third party to access or use the other party’s Confidential Information except for their respective Personnel who have a need to know and are under binding obligations of non-disclosure that are substantially as protective of such Confidential Information as are this Agreement. Provider will notify Gen immediately and in reasonable detail if it believes that Gen’s Confidential Information has been subject to unauthorized use or access and will take corrective action as appropriate, and as reasonably requested by Gen. On termination of an Order or at a party’s earlier request, the recipient shall promptly return (and destroy, if requested) the discloser’s Confidential Information at no cost. Confidential Information does not include information that the recipient can demonstrate became publicly available through no fault, act or omission by the recipient, or that was independently developed by the recipient or rightfully received from a third party with no obligation of nondisclosure. In addition, a recipient may disclose Confidential Information to the extent required by law, provided that it must promptly notify the discloser (unless legally prohibited) and cooperate with the discloser’s request to limit or re-direct the request, at discloser’s cost. If Gen is legally compelled to produce Gen Confidential Information that is hosted by, or otherwise within Provider’s possession or control, Provider will promptly and reasonably cooperate to produce such information in a timely manner. Where the burden on Provider for such cooperation is no longer reasonable the parties will negotiate an appropriate allocation of cost in good faith, and not as a contingency to cooperation.

4. Personal Data. If Provider processes Personal Data for or on behalf of Gen as part of its provision of Solutions, the terms of the Gen Data Processing Agreement (“DPA”) specified at https://www.gendigital.com/us/en/procurement/data-processing-agreement/ apply in addition to this Agreement and are fully incorporated herein. If Provider uses or provides tracking technologies (including without limit pixels, tags or web beacons) in the provision of Solutions, Provider must: (i) notify Gen about the type of tracking technology used and the information collected, (ii) collect information and use information gained exclusively to provide the Solutions; and (iii) enable (or allow Gen to enable) appropriate mechanisms for data subjects to opt-in and opt-out of such tracking technologies, and provide accurate and complete disclosures prior to the collection of information in accordance with applicable laws. “Personal Data” has the meaning assigned in the DPA.

5. Data Security. Provider will maintain, at a minimum, the technical and organizational measures and controls specified in Gen’s Master Provider Security Requirements (“MPSR”) at www.gendigital.com/us/en/procurement/master-provider-security-requirements which terms are fully incorporated herein, and Provider will update those with equivalent or more protective measures and controls as needed to remain compliant at all times with then-current industry standard practices.

6. Designated Solutions. If Provider Personnel provide Solutions on Gen designated premises or access Gen’s Confidential Information or networks (individually and collectively ‘Designated Solutions”), the following terms apply:

a. Provider Personnel will comply with Gen’s work rules and policies as provided by Gen, and shall not copy or remove Gen materials, data or property from Gen’s premises or networks without first obtaining Gen’s express consent.

b. On Gen’s request, Provider will promptly replace individual Personnel who are working on Gen designated premises with appropriately skilled and qualified individuals. Gen will not be invoiced or obligated to pay an increased rate for the replacement Personnel or for any time or expenses incurred to train and familiarize such replacement with the applicable engagement.

c. Before Provider Personnel perform Designated Solutions, Provider warrants that: (i) to the extent permitted by local law, it will perform (and will obtain appropriate consent to perform) appropriate background investigations, including without limit as may be set forth in Gen’s Master Provider Security Requirements, (ii) no information was discovered in such investigation(s) that could be reasonably construed to negatively impact performance or result in breach of this Agreement, and (iii) Provider will confirm (in writing) its compliance with this section on Gen’s request. Gen reserves the right to refuse access to its premises and network(s) at any time, for any lawful reason.

7. No Publicity; Trademarks. Provider shall not make any direct or implied reference to Gen or use Gen’s names, logos or trademarks for any sales, marketing, or publicity purposes. If Gen requires that Provider use any Gen trademarks as part of its provision of Solutions, Provider will fully comply with Gen’s branding and trademark use guidelines specified at https://www.gendigital.com/us/en/legal/trademark-policies/ which terms are fully incorporated herein, and as otherwise explicitly specified in an applicable Order. Gen reserves to itself all other rights not specified therein.

8. Acceptance. If Solutions or any portion thereof are subject to acceptance review by Gen as indicated in the applicable Order or otherwise explicitly agreed by the parties in writing, the following terms apply:

a. Unless otherwise agreed in the applicable Order, Provider will notify Gen when Solutions are ready for Gen’s review. Gen will within 15 days of its receipt, inform Provider of whether it accepts, rejects (with a description of the non-compliance), or needs additional time to review.

b. If Gen rejects, Provider will modify and resubmit the Solutions within 15 days (or as otherwise expressly agreed) to comply with applicable specifications and acceptance criteria. If the Solutions remain non-compliant, Gen may provide its rejection in whole or in part and/or terminate the applicable Order on notice with no further cure period and, in either case, Gen will have no obligation to pay for (and Provider will promptly refund any amount paid for) the rejected Solutions and other Solutions whose use or value is, in Gen’s good faith judgment, materially degraded as a result of the rejected Solutions.

9. Software and SAAS License and Additional Terms. If Solutions include software, whether available on-premise or as a subscription, service or otherwise, (i) Provider grants Gen and its authorized users a non-exclusive, worldwide, irrevocable, royalty-free, right and license to access and use such software during the term as specified in the applicable Order, (ii) Gen may not (nor permit any third party to): (a) disassemble, decompile, reverse engineer or otherwise attempt to discover the underlying algorithms of any software Solutions, except to the extent permitted by applicable law; or (b) lease, rent or timeshare the software Solutions, and (ii) Gen’s Software and SAAS Terms specified at www.gendigital.com/us/en/procurement/software-and-saas-terms/ apply to the software Solutions and are fully incorporated herein.

10. Ownership and License to Pre-Existing Works. As between the parties, and unless otherwise explicitly negotiated and agreed in an Order, (i) Gen owns its Confidential Information which, for clarity, includes Deliverables as defined below, and (ii) Provider owns its Confidential Information and its products, software, materials, tools, technology and know-how, and all intellectual property rights therein, that are independently created or obtained by Provider other than for Gen (collectively, “Pre-Existing Works”). For any Pre-Existing Works provided to Gen, and for any Deliverables where ownership does not fully vest with Gen for any reason, Provider hereby grants Gen a worldwide, royalty free, fully paid, irrevocable right and unrestricted license in and to such Pre-Existing Works and Deliverables for Gen’s business purposes, and without accounting or obligation of any kind to Provider. “Deliverables” means all work product and results of services that are created or generated for or on behalf of Gen in the course of providing Solutions to Gen, including without limit all Gen data, information, and content as input, processed and output by any software Solutions and any reports and analysis based thereon, and other results that reveal or embody such information.

11. Intellectual Property Assignment. If Provider is engaged to develop, design, improve, or otherwise work on software, code, or any other technology Solutions or deliverables for or on behalf of Gen, then Provider agrees to the Intellectual Property Agreement (“IPA”) at www.gendigital.com/us/en/procurement/ipa which terms are fully incorporated herein.

12. Warranty. In relation to this Agreement and performance hereunder or under any Order, Provider hereby represents and warrants to Gen all the following:

a. Provider will comply with applicable laws and regulations including without limit those regarding privacy and personal information, export and import, anti-corruption laws, non-discrimination, the Foreign Corrupt Practices Act, U.K. Bribery Act 2010 and laws of the U.S. Department of the Treasury, Office of Foreign Assets Control; and will further obtain and maintain in effect all required licenses, permits, authorizations and consents to perform under this Agreement and each Order and to provide Solutions, Deliverables, and information to Gen.

b. Provider will conduct its business in an ethical, professional and workmanlike manner consistent with, and no less strict than, the Gen Code of Conduct available at https://www.gendigital.com/procurement/code-of-conduct.

c. Provider will cooperate with Gen Personnel as reasonably requested by Gen’s project contacts designated within the Order or Gen’s Procurement organization.

d. Solutions that are not subject to Section 8 (Acceptance) will comply with Provider’s published documentation and with any additional specifications under each Order. For such Solutions that do not comply, Provider will at its sole cost and expense, and at Gen’s option: (i) promptly modify or replace the Solutions to be compliant; or (ii) refund the relevant fees paid for such deficient Solutions and other Solutions whose use or value to Gen is materially degraded as a result of the non-compliant Solutions.

e. Provider will not provide any software Solutions without first using at least commercially reasonable tools and practices to detect, remove and destroy viruses, trojan horses, back-doors, spyware and other malicious or harmful code, and confirm such removal and destruction.

13. Insurance. Provider will maintain and comply with the Gen Insurance Requirements specified at https://www.gendigital.com/us/en/procurement/insurance-requirements.

14. Indemnity. 

a. Provider will defend, indemnify and hold Gen and its employees, officers and directors harmless from and against any third party claims, actions or determinations (and resulting damages, costs, expenses, reasonable attorneys’ fees and court costs) that (i) any Solutions infringe or misappropriate the intellectual property rights of a third party, (ii) arise from Provider’s breach of Section 3 (Confidentiality), Section 5 (Data Security) or the DPA, or (iii) a relationship other than independent contractor was established between Gen and Provider or Provider’s Personnel including without limit any claim under the Transfer of Undertakings (Protection of Employees) Regulations 2006, or under the Acquired Rights Directive or other broadly similar legislation.

b. Gen will (i) notify Provider in a timely manner of any indemnifiable claim, (ii) grant Provider control of the defense and settlement of the claim and (iii) provide Provider with reasonable assistance and information as reasonably needed for Provider to fulfill its obligations hereunder. Provider will engage reputable reasonably skilled legal counsel in the defense of claims and may not obligate or make an admission on behalf of an indemnified party without the indemnified party’s express written consent.

c. If use of Solutions is enjoined due to an infringement claim, Provider will at its expense promptly take at least one of the following actions: (i) obtain the right for Gen to continue using the Solutions under this Agreement; or (ii) replace or modify the infringing Solutions to be non-infringing and substantially equivalent in function, performance, and security as the enjoined Solutions. If neither option can be accomplished despite reasonable efforts, Provider will at Gen’s option terminate Gen's rights and payment obligations hereunder with respect to such Solutions, and Provider will refund amounts paid by Gen in connection with the Solutions and any other Solutions whose use or value to Gen is materially degraded as a result of such termination. Gen will have a reasonable time to cease use of replaced/terminated Solutions.

15. LIMIT OF LIABILITY. LIMIT OF LIABILITY. NEITHER PARTY WILL BE LIABLE UNDER OR IN RELATION TO THIS AGREEMENT FOR ANY (I) AMOUNTS IN EXCESS OF THE AMOUNTS PAID BY OR PAYABLE BY GEN TO PROVIDER IN THE TWELVE MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO THE LIABILITY, (II) SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (III) LOSS OF PROFITS, BUSINESS, REVENUES OR GOODWILL, OR WASTED MANAGEMENT AND STAFF TIME. THE FOREGOING LIMITS AND EXCLUSIONS WILL NOT APPLY TO OBLIGATIONS UNDER OR BREACHES OF SECTION 3 (CONFIDENTIALITY) OR SECTION 14 (INDEMNITY), OR TO EITHER PARTY'S LIABILITY FOR WILLFUL MISCONDUCT OR FRAUD, OR TO DEATH OR PERSONAL INJURY CAUSED BY A PARTY.

16. Notices. Notices to Gen will be sent to vendormanagement@gendigital.com, with a copy to security@gendigital.com in the event of a known or suspected breach of Personal Data. In addition, notices regarding breach or termination will be sent to 487 E Middlefield Rd, Mountain View, CA 94043 to the attention of Legal/Procurement and to legal.department@gendigital.com. Hardcopy notices sent by either party must be delivered via nationally recognized delivery service, with delivery confirmation.

Notices to Provider will be sent to its address indicated on the relevant Order or to such other address as Provider may notify to Gen for receipt of notices.

17. Governing Law. The Agreement is governed exclusively by the respective choice of law and venue specified below, to which the parties hereby consent to without regard to principles of conflicts of law and hereby waive objections to personal jurisdiction therein. The English language version of the Agreement will prevail in the event of any translations. Provider waives any right to have this Agreement officially written in the language of any other applicable country.

• If the contracting Gen party is in the Americas: The laws of California, USA govern with venue in Santa Clara County, California
• If the contracting Gen party is in Europe, the Middle East or Africa: The laws of Ireland govern with venue in Dublin, Ireland
• If the contracting Gen party is in Japan: The laws of Japan govern with venue in Tokyo, Japan
• If the contracting Gen party is in the Asia Pacific region or Australia: The laws of Singapore govern with venue in Singapore

18. Termination.

a. Provider may terminate this Agreement on 30 days’ notice if no Orders are active or in effect. Provider may terminate any Order if Gen has materially breached such Order and failed to cure within 30 days following written notice by Provider reasonably detailing the breach.

b. Gen may terminate this Agreement, any Order(s), and/or purchase order(s) in whole or part on written notice to Provider, with or without cause, in which case Gen will remain obligated to pay for only those Solutions provided up to the date of termination (excluding rejected Solutions). If Gen terminates any subscription-based Solutions without cause, Gen will not be entitled to a refund or credit of pre-paid subscription fees for the then-current annual term (or shorter term as may be provided in the appliable Order).

c. Termination of this Agreement by either party shall result in termination of all Orders issued under this Agreement.

d. On termination of this Agreement or any Order by either party, Provider will (i) at no charge either deliver all Gen Confidential Information and Deliverables to Gen in a reasonable format within 10 business days and/or make Gen Confidential Information and Deliverables available for Gen’s retrieval through reasonable means, including without limit through the use of Provider’s tools, for a period of at least 60 days, and (ii) as requested by Gen, and without limiting (i) above, provide additional transition assistance at rates as agreed in good faith by the parties.

19. Trade Compliance. Each party will comply with export laws and regulations applicable to such party. Provider shall not export or re-export, or request Gen to export or re-export, any Solutions, including all Solutions and/or technical data received from Gen or any direct product thereof, directly or indirectly, to any country, entity or person prohibited by the U.S. Government. Provider acknowledges that compliance with U.S. export laws may cause delays in shipments and/or prohibit Provider from exporting certain Solutions to certain countries and entities for certain uses. In no event shall Gen be liable for any such delays or prohibition.

20. Verification. Upon Provider’s request or inquiry regarding Gen’s use of Solutions, which may not occur more than once in any twelve-month period, Gen will conduct an internal effort to verify its use of Solutions in accordance with purchased quantities and other entitlements. If Gen’s actual use exceeded purchased quantities and other entitlements, Gen may cease the excess use at no cost or purchase appropriate quantities at the rates or per-unit fees previously paid by Gen for the relevant Solutions (or discount equivalent if not like-for-like Solutions). No other fees, penalties or retroactive amounts will be due and Gen shall not be deemed to have infringed or misappropriated any intellectual property rights or to have otherwise breached this Agreement. Any additional verification or audit effort will be performed if and as agreed in good faith by the parties at such time, and under additional terms of confidentiality specific to the effort.

21. Miscellaneous. Notwithstanding anything to the contrary:

a. The parties are independent contractors engaged on a non-exclusive basis. Neither party has authority to bind or make any representation, warranty, or commitment on behalf of the other party.

b. This Agreement, along with terms incorporated herein by reference and each Order, comprise the entire agreement and understanding between the parties regarding the subject matter herein. No other terms, quotes, agreements, or understandings between the parties shall be valid or enforceable unless agreed to in the form of a mutually executed amendment to this Agreement or change order to an Order. Notwithstanding the preceding, Gen may, from time to time, modify the terms of this Agreement and any terms incorporated herein by reference, provided that the terms posted on the effective date of any Order will continue to govern that particular Order only.

c. This Agreement will supersede and control in the event of any conflict or inconsistency with the terms of any Order, including without limit any conflicting order of precedence provisions and any Provider terms incorporated into such Order by URL or other reference. In the event of any conflict between this Agreement and any Order, this Agreement will control.

d. Neither party may transfer, novate, or assign this Agreement or any Order without the other party’s express written consent, except to their respective affiliates, and to their successors in the event of merger, acquisition, or asset sale. All other attempts to transfer, novate or assign shall be deemed to be null and void. If Provider assigns this Agreement or any Order to a competitor of Gen that is named in its then-most recent 10-K SEC filing, Gen may terminate this Agreement and any Order (and its obligations thereunder) on written notice.

e. If any provision of this Agreement is found to be illegal or unenforceable in whole or in part, such provision shall be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this Agreement shall remain in full force and effect.

f. The provisions of this Agreement which, by their nature, are on-going will survive termination of this Agreement, for example and without limit confidentiality, ownership, indemnification, limit of liability, and this Section 21 (Miscellaneous).

g. The parties agree that this Agreement are agreed between sophisticated parties and thus any principle of construction, legal doctrine or rule of law that provides for construction against the drafter under any circumstance, shall not apply to this Agreement. 

h. A party’s failure or delay to exercise any right or require performance under this Agreement or any Order shall not be deemed a waiver of any further such right or performance.

i. Gen is a participant in the United Nations Global Compact (“Global Compact”), an international initiative working to advance ten universal principles in the areas of human rights, local labor laws, environmental and anti-corruption. Gen encourages Provider to conduct its business pursuant to the Global Compact’s Ten Principles at https://www.unglobalcompact.org/what-is-gc/mission/principles. Visit www.unglobalcompact.org for more information.

j. Gen’s Delivery Terms located at www.gendigital.com/us/en/procurement/delivery-terms/ are fully incorporated herein and apply to Solutions that are physically delivered to Gen.

k. Except as expressly provided under the Standard Contractual Clauses to the DPA there are no third-party beneficiaries to this Agreement or any Order.