Okta Purchase Order + Terms and Conditions (AMER)

This purchase order (“PO”) is placed subject to the terms, conditions, specifications, and instructions on the PO, and the terms and conditions set forth below (“Purchase Order Terms and Conditions”) and in any documents referenced herein (all of the foregoing, collectively, this “Agreement”). Vendor will be deemed to have accepted and entered into this Agreement upon the earliest of (a) five (5) business days after an Okta entity sends the PO to Vendor unless Vendor expressly rejects the PO in writing during that period, (b) Vendor sending an invoice to Buyer for the PO, or (c) Vendor beginning to perform any Services or otherwise commencing any performance with respect to any Deliverables specified in the PO.

1. DEFINITIONS
1.1. "Buyer” means the Okta Company specified on the PO.
1.2. “Deliverable” means any of or any combination of Products, Services, Software and Other Obligations.
1.3. "Developed Materials” means any software, documentation, work product, materials or other Deliverables that are created or developed in connection with the PO, excluding Licensed Materials.
1.4. “IP Right” means any right regarding inventions, works of authorship, trade secrets, trademarks, domain names or other intellectual property, including patents, copyrights, moral rights, publicity or personality rights, trademark rights and other intellectual property or proprietary rights throughout the world and whether registered or not.
1.5. “Licensed Materials” means any software, documentation, work product, materials or other Deliverables that Vendor is licensing to the Okta Companies as set out in the PO.
1.6. "Okta” means Okta, Inc.
1.7. “Okta Companies” means, collectively, Okta and its affiliates.
1.8. “Okta Materials” means all information and materials (whether tangible or not) provided directly or indirectly to Vendor by an Okta Company or its customers, or their respective users, including modifications, changes and derivatives thereto.
1.9. “Other Obligation” means any item or work product provided by Vendor or Vendor obligation contained in this Agreement, in each case that is not a Product, Service or Software.
1.10. “Personnel” means directors, officers, employees, agents, and subcontractors.
1.11. “Products” means the products or equipment set out in the PO.
1.12. “Services” means the services set out in the PO.
1.13. “Software” means any software set out in the PO, including any software constituting Licensed Materials or Developed Materials. 1.14. “Specifications” means the functional, design, performance and other specifications and requirements applicable to the Deliverables, as provided by the manufacturer or licensor, as the case may be, and/or as set out in the PO.
1.15. “Vendor” means the vendor specified on the PO.

2. VENDOR’S OBLIGATIONS
2.1. Deliverables. Vendor shall perform or provide, as applicable, the Deliverables set out in the PO in accordance with the Specifications, all applicable law and any other requirements set out in the PO, and shall provide any documentation that Buyer may need to use such Deliverables to their complete benefit, in accordance with this Agreement.
2.2. Okta Materials. Vendor shall: (i) safeguard any Okta Materials that it uses or that are in its care, possession or control; (ii) use such Okta Materials solely for fulfilling its obligations in accordance with this Agreement and Buyer’s instructions; and (iii) return all Okta Materials (including any Okta Company Confidential Information disclosed hereunder) upon termination of this Agreement or upon Buyer’s written request. Vendor shall be responsible for any loss or damage resulting from its or its Personnel’s negligence or willful misconduct.

3. DELIVERY, INSPECTION AND REMEDIES
3.1. Delivery. If applicable, Vendor shall perform or provide the Deliverables in accordance with the delivery schedule set out in the PO or if no such schedule is set out, within a reasonable time period.
3.2. Delays. If the Deliverables are not performed or provided in accordance with the PO, Buyer may terminate this Agreement without incurring any additional expenses and, if terminated, Vendor shall immediately refund all Fees, if any, prepaid in respect of such Deliverables.
3.3. Inspection and Remedies. Buyer has the right to inspect and test any Deliverable it receives at any time. For any defective Deliverable, Buyer may, at no additional cost to Buyer: (i) reject and, if applicable, return such defective Deliverables to Vendor and Vendor shall refund to Buyer all Fees paid for such defective Deliverables and any other related costs; or (ii) request that Vendor repair or replace such defective Deliverables, and Vendor will comply with such request.
3.4. Title. Title to and risk of loss for any tangible Deliverables that are not Licensed Materials vest in Buyer upon delivery to the location specified by Buyer and inspection and acceptance thereof by Buyer.

4. PAYMENT TERMS, TAXES AND INSURANCE
4.1. Fees, Invoicing and Payment. Buyer agrees to pay Vendor the fees set out in the PO for conforming Deliverables (the “Fees”). The Fees are the only amounts payable by Buyer for the Deliverables, with all direct and indirect costs relating to the provision of the Deliverables being borne by Vendor. Vendor may not adjust the Fees during the Term. For Services and approved expenses relating thereto, Vendor may invoice Buyer upon completion of the Services. For Software, Vendor may invoice Buyer upon activation of the Software license(s). For Products and Other Obligations, Vendor may invoice Buyer upon Buyer’s receipt and acceptance of the Products or Other Obligations, as applicable. Vendor shall invoice Buyer for such Fees as provided in the PO and such invoice shall clearly explain in detail the basis upon which such Fees have been determined. Subject to the terms and conditions hereof, each proper undisputed invoice submitted to Buyer shall be due and payable within 60 days after Buyer receives such invoice, unless otherwise set forth in the PO. All amounts payable under this Agreement shall be paid in U.S. dollars, unless otherwise set forth in the PO. Vendor shall direct all questions concerning invoicing to [email protected].
4.2. Taxes. Each party will be responsible for any taxes on property it owns or leases, for any franchise or privilege tax on its business, and for any tax based on its income or gross receipts. Rates for the Deliverables shall include any applicable sales, use, excise, value added, goods and/or service and other similar taxes. If withholding of any tax is required under applicable law in respect of any payment by Buyer to Vendor hereunder, Buyer shall (i) withhold the appropriate amount from such payment and (ii) pay such amount to the relevant authorities in accordance with applicable laws. 
4.3. Insurance. Vendor will maintain adequate insurance as required by law to cover Vendor’s obligations and potential liabilities under this Agreement. Coverages will be placed with insurers who have an AM Best rating of A VIII or better.
4.4. Exports. For any Deliverables originating from outside of the jurisdiction where the Okta Company receiving such Deliverables is located, Vendor shall provide Buyer with completed and applicable documentation as required and prescribed under applicable law. Vendor shall include and attach the completed and applicable documentation with the shipment of the Deliverables and provide copies of such documentation to Buyer prior to the shipment, or as Buyer otherwise communicates to Vendor in writing.

5. TERM AND TERMINATION
5.1. Term. This Agreement shall remain in effect from the Effective Date until terminated in accordance with this section (the “Term”). Buyer may terminate this Agreement at any time upon seven (7) days’ prior written notice to Vendor. In addition, either party may terminate this Agreement upon written notice in the event of a material breach of this Agreement by the other party unless the breaching party cures such breach to the reasonable satisfaction of the non-breaching party (if such breach is capable of cure) within thirty (30) days after receipt of written notice of such breach.
5.2. Effect of Termination. In the event that either party gives notice of termination of this Agreement, then Vendor shall: (i) cease all work under this Agreement; (ii) deliver to Buyer or its designee(s) all Developed Materials (including works in progress); and (iii) refund to Buyer any payments or deposits made by Buyer in advance in respect of Deliverables that have not yet been delivered or expenses that have not yet been incurred. Termination of this Agreement, in whole or in part, will not: (a) affect either party’s liabilities or obligations that arose prior to termination; (b) give rise to termination fees or penalties of any kind against any Okta Company; or (c) affect any remedies to which a party may be entitled under this Agreement.

6. REPRESENTATIONS, WARRANTIES AND COVENANTS
6.1. General. Vendor represents, warrants and covenants that: (i) it shall provide the Deliverables and perform its obligations in good faith, in a timely manner, exercising reasonable skill, care and diligence, all in accordance with recognized professional and industry standards and this Agreement; (ii) it has good and marketable title to the Deliverables, free and clear of all security interests, liens, claims, charges or encumbrances; (iii) it and its Personnel possess all necessary authorizations, permits and other permissions to perform their obligations in accordance with this Agreement; (iv) the Deliverables will be free from defects in design, material and workmanship, and will perform in accordance with the Specifications and any intended purpose made expressly or implicitly known to Buyer; (v) the Deliverables and the use thereof by the Okta Companies will not infringe or misappropriate any IP Rights, (vi) the Deliverables will be fit and safe for the intended use, of good workmanship and quality, and compliant with all applicable law, and (vii) any Software provided will be free of security vulnerabilities, viruses and other malicious code and, except as approved by Buyer in writing, will not contain any open source or other third party software. Vendor shall, at its sole cost, repair or replace any Deliverable that breaches the foregoing terms within seven (7) days of receipt of notice thereof. If Vendor is unable to repair or replace such defective Deliverables within such time, upon Buyer’s request, Vendor will refund all Fees paid for such defective Deliverables and any other related costs.
6.2. Compliance. Vendor represents, warrants and covenants that, in connection with the Deliverables, Vendor (i) has not done and will not do anything to violate any applicable laws; and (ii) will comply with Buyer’s anticorruption policy. Vendor will furnish to Buyer certifications confirming compliance with this Agreement upon Buyer’s request. 

7. INTELLECTUAL PROPERTY
7.1. Developed Materials. Buyer shall own, and Vendor hereby irrevocably assigns to Buyer with full title guarantee and free from all third-party rights, all IP Rights throughout the world in or to any and all Developed Materials. Vendor will cooperate with Buyer in the procurement, perfection, defense and enforcement of such IP Rights. The foregoing assignment includes all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as “moral rights,” “artist’s rights,” “adroit moral,” or the like, and Vendor hereby waives all such rights. In the event that such assignment is ineffective, the Vendor holds such IP Rights on trust for Buyer and grants an exclusive, perpetual, irrevocable, royalty-free, worldwide, sub-licensable (directly and indirectly through multiple tiers) and unlimited license to Buyer to use and otherwise fully exercise and exploit such IP Rights relating to the Developed Materials without restriction.
7.2. Vendor’s Pre-existing Works. To the extent that the Developed Materials are based on, incorporate, are an improvement or derivative of, or cannot be reasonably and fully made, used, reproduced, distributed and otherwise exploited without using or violating technology or IP Rights owned by or licensed to Vendor and not assigned to Buyer hereunder, Vendor hereby grants to the Okta Companies a perpetual, irrevocable, royalty-free, worldwide, sublicensable (directly and indirectly through multiple tiers) right and license to use, perform, copy, modify, create derivative works of, display, distribute, make, sell, offer for sale, import and otherwise exploit in any manner all such technology and IP Rights in support of their exercise or exploitation of the Developed Materials.
7.3. Licensed Materials. With respect to any Licensed Materials, except as set forth in the PO, Vendor hereby grants to the Okta Companies a nonexclusive, irrevocable, transferable, perpetual, royalty-free, worldwide, sub-licensable (directly and indirectly through multiple tiers) license to use, import, reproduce, display, perform, distribute, modify, prepare derivative works of, disclose (as necessary) and otherwise exploit the Licensed Materials. To the extent requested by Buyer, Vendor will provide the following without charge: (i) all integration support required for the Okta Companies to use and otherwise exploit the Licensed Materials; (ii) support by phone or e-mail regarding the installation and/or use of the Licensed Materials; (iii) on-site support for any issues that cannot be resolved by phone or e-mail; (iv) updates to the Licensed Materials (no later than when such updates` are provided to any other customer); and (v) timely support to resolve issues identified by Buyer in the Licensed Materials.
7.4. Okta Information and Materials. All Okta Materials are and shall remain the property of the Okta Companies. Vendor obtains no right, title, or interest therein, except that during the Term Vendor may use the Okta Materials for the sole, exclusive and limited purpose of performing the Services and/or providing the Deliverables in compliance with the terms and conditions of this Agreement. 
7.5. Further Assurances. Vendor shall provide or execute all necessary documents and shall obtain all required consents, waivers and assignments, and other matters from its Personnel, and shall perform all other acts, in order to enable Vendor to comply with this Agreement and to give full effect to the intention of this Agreement.

8. USE OF OKTA TRADEMARKS AND PUBLICITY
Without the prior written consent of Buyer, Vendor shall not directly or indirectly issue or permit the issuance of any statement, article, advertisement, public or private announcement, media release or other similar publicity relating in any manner to the relationship of the parties, any aspect of this Agreement or any Deliverables, or use any trademarks of any Okta Companies. If Buyer consents to the use of any Okta Company trademarks, Vendor will comply with the terms set forth at https://www.okta.com/terms-of-use-for-okta-content/.

9. CONFIDENTIALITY
9.1. “Confidential Information” means any information (whether in written, electronic or oral form) disclosed or made available directly or indirectly by an Okta Company to Vendor. For clarity, Okta Materials are the Confidential Information of the Okta Companies. Vendor shall: (i) not copy, distribute or otherwise use any Confidential Information except for the performance of the Services hereunder; (ii) not disclose such Confidential Information to any party; and (iii) protect the confidentiality of such Confidential Information using at least the same measures it uses to protect its most sensitive information. Vendor shall not be so obligated with respect to information that (i) is or becomes publicly available without restriction through no fault of Vendor, or (ii) Vendor knew without restriction prior to its disclosure by an Okta Company. Upon the expiration or termination of this Agreement and at any other time upon the written request, Vendor shall immediately return to Buyer or permanently delete such Confidential Information in its possession or control.

10. INDEMNITIES AND LIMITATION OF LIABILITY
10.1. Vendor Indemnity. Vendor shall defend, fully indemnify and hold harmless the Okta Companies from and against all actual and alleged claims, demands, causes of action and liability, of any kind, for damages, losses, costs and expenses, including legal fees and disbursements, arising out of or relating to any: (i) negligent or willful acts or omissions of Vendor or its Personnel; (ii) breaches by Vendor or its Personnel of any representations, warranties, terms or conditions of this Agreement; and (iii) claims that a Deliverable infringes or misappropriates a third party’s rights, including IP Rights (an “Infringement Claim”).
10.2. Procure/Replace/Modify Refund. If there is an actual or alleged Infringement Claim, Vendor shall, at its sole expense and at Buyer’s sole option: (i) procure for the Okta Companies the right to continue any activity affected by the Infringement Claim; (ii) replace or modify all affected Deliverables with products or services that are not subject to an Infringement Claim and are of equivalent functionality, quality and performance to those contracted for; or (iii) refund to Buyer the Fees paid in respect of affected Deliverables. 10.3. LIMITATION OF LIABILITY. IN NO EVENT SHALL THE OKTA COMPANIES BE LIABLE TO VENDOR, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), EQUITY, WARRANTY, OR ANY OTHER GROUNDS, FOR ANY (A) LOSS OF PROFIT OR INCOME, LOSS OF DATA OR INFORMATION, LOSS OF BUSINESS OR BUSINESS OPPORTUNITY, LOSS OF ANTICIPATED SAVINGS, LOSS OF REPUTATION OR GOODWILL; (B) CONSEQUENTIAL DAMAGES, OR (C) SPECIAL DAMAGES OF ANY KIND, IN EACH CASE, EVEN IF VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND THE OKTA COMPANIES’ AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), EQUITY, WARRANTY, OR ANY OTHER GROUNDS, WILL NOT EXCEED THE AMOUNT PAID OR PAYABLE UNDER THIS AGREEMENT. NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR RESTRICT ANY LIABILITY THAT CANNOT BE EXCLUDED OR RESTRICTED BY APPLICABLE LAW.

11. COMPLIANCE
11.1. Code of Conduct. Vendor and its Personnel will comply with the most current version of Okta’s Partner Code of Conduct, which is available upon request.
11.2. Accessibility. Vendor shall comply with all applicable laws relating to accessibility, to the extent that such laws and regulations are applicable to the Deliverables and, at a minimum, Vendor shall ensure that all Deliverables are compliant with Web Content Accessibility Guidelines (WCAG) 2.1, Levels A and AA (as may be amended, interpreted, or replaced), as applicable.
11.3. COMPLIANCE WITH EMPLOYMENT LAWS. Buyer is a federal contractor. If applicable, the Equal Opportunity Clauses stated in 41 C.F.R. parts 60-1.4(a), and the employee notice found at 29 C.F.R. Part 471, Appendix A to Subpart A, are incorporated into this Agreement by reference. If applicable, Vendor will abide by the requirements of 41 CFR §§ 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals on the basis of protected veteran status or disability and require affirmative action by covered prime contractors and subcontractors, to employ and advance in employment, qualified protected veterans and individuals with disabilities. Executive Order 13658, Establishing a Minimum Wage for Contractors, and its implementing regulations, including the applicable contract clause (available at 29 C.F.R. § Pt. 10, App. A), are incorporated into this Agreement by reference.

12. GENERAL PROVISIONS
12.1. Priority. If there is any conflict or inconsistency between these Purchase Order Terms and Conditions and the PO, the PO will control to the extent it expressly amends specific provisions of these Purchase Order Terms and Conditions.
12.2. No Exclusivity. The Okta Companies do not have any exclusivity obligations under this Agreement.
12.3. Assignment. Neither party may assign their rights or obligations under this Agreement without the prior written consent of the other party and any attempt to do so without such written consent shall be void. Notwithstanding the foregoing, Buyer may, without the consent of Vendor, assign any and/or all of its rights and obligations under this Agreement to any Okta Company or successor entity or acquirer in a merger, sale of assets or acquisition. Subject to the foregoing, this Agreement shall be binding on the parties and their respective successors and permitted assigns.
12.4. Notices. Any notice or other communication must be delivered to the parties at their respective addresses set out on the PO or any other address that a party subsequently identifies to the other party. Any notices, requests or other communications required or permitted by this Agreement shall be in writing and in the English language and shall be sent (i) in the case of Vendor, to Vendor’s email address set forth on the PO or (ii) in the case of Buyer, to [email protected]
12.5. Survival. Upon expiration or termination of this Agreement, any terms or conditions that by their nature should survive such expiration or termination will survive, including terms and conditions relating to proprietary rights and confidentiality, indemnification, limitations of liability and termination.
12.6. Governing Law and Venue. The law that will apply in any dispute or lawsuit arising out of or in connection with this Agreement or its subject matter or formation (including noncontractual disputes or lawsuits) is the laws of the United States. The courts located in San Francisco, California, will have jurisdiction over any such dispute or lawsuit. The parties irrevocably waive all rights they may have to a trial by jury in any judicial proceeding involving any claim relating to or arising under this Agreement.
12.7. Miscellaneous. If any of the provisions contained in this Agreement shall be held invalid, illegal or unenforceable by competent judicial authority, the validity of the remainder of the Agreement shall be unaffected. No failure or delay by either party in exercising any right, power, or remedy under this Agreement shall operate as a waiver of any such right, power, or remedy. The parties acknowledge that monetary damages may not be a sufficient remedy for breach of this Agreement and that each party may, without waiving any other rights or remedies, seek injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction, without obligation to post any bond (unless otherwise required by order of the competent court). All remedies, whether under this Agreement, provided by law, or otherwise, shall be cumulative and not alternative. Vendor’s relationship with Buyer will be that of an independent contractor and nothing contained in this Agreement shall be construed as creating or implying a joint venture, partnership, agency, or employment relationship between the parties or their respective employees and contractors, and neither party will have the right to bind the other or incur any obligation on the other’s behalf without the other’s prior written consent. No person who is not a party to this Agreement will have any right to enforce it. The rights of the parties to rescind or vary this Agreement are not subject to the consent of any other person. Each party will be solely responsible for the supervision of its employees and for the fulfillment of all obligations incumbent upon an employer with regard to its employees, including the withholding and payment of income taxes, statutory benefits, and social security taxes, and the provision of health, disability and other benefits or workers’ compensation insurance. This Agreement may only be modified by mutual agreement of authorized representatives of the parties in writing. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing and signed by the authorized representative of the party to be charged. This Agreement (including its exhibits) constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter, provided that if Vendor has signed a written agreement with Buyer for any Deliverables, that written agreement (and not these terms and conditions) will apply. All POs will be subject to and hereby incorporate the terms of these Purchase Order Terms and Conditions, and no terms or conditions contained in any purchase order or other document issued by Vendor shall form part of any contract between Vendor and any Okta Company. Any “click-wrap” agreement, terms of use, electronic acceptance, order confirmation, or other terms and conditions that a user may be required to acknowledge or accept or that is otherwise displayed or accessible to a user before downloading, receiving, using or otherwise accessing any Deliverables are of no force and effect as between the Okta Companies and Vendor. Any words following the terms ‘including’, ‘include’, ‘in particular’, ‘for example’, ‘i.e.’, ‘other’ and ‘otherwise’ or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms. The headings in this Agreement are for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.