Calix Supplier Services Agreement

This Supplier Services Agreement (“Agreement”) is effective as of Agreement Effective Date ("Effective Date") by and between Calix, Inc., on behalf of itself and its Affiliates (as defined below), a Delaware corporation with offices at 2777 Orchard Parkway, San Jose, CA 95134 ("Calix") and Supplier with offices located at _____________ (“Supplier”).

 

1. SCOPE

Subject to the terms and conditions of this Agreement, Supplier will provide Services to Calix as further specified in any applicable Statement of Work.

2. DEFINITIONS

As used in this Agreement, the following capitalized terms have the following meanings:

2.1. “Affiliate” 1.1. means any entity that controls or is under common control by or with a party.  A corporation or other entity will be deemed to control another if it owns or controls more than fifty percent (50%) of the voting stock or other ownership interest in such corporation or entity.

2.2. “Calix Systems” means the networks, equipment, products and systems of Calix or its customers.

2.3. “Confidential Information” means confidential or proprietary data, materials, or information disclosed by one party (disclosing party) to the other party (receiving party) under this Agreement in written, graphic, machine recognizable, electronic, sample, or any other tangible or visually perceptible form, and/or disclosed orally, whether identified or not identified as “confidential”.  The nature, existence and terms of this Agreement are considered Confidential Information.

2.4. “Intellectual Property Rights” or “IPR” means any and all: (i) copyrights, trademarks, trade names, domain names, proprietary rights, or goodwill associated with trademarks and trade names, designs, and patents; (ii) rights relating to innovations, know-how, trade secrets, proprietary business processes and confidential, technical, and non-technical information; (iii) moral rights, mask work rights, author's rights, and rights of publicity; and (iv) other industrial, proprietary and intellectual property related rights anywhere in the world, that exist as of the Effective Date or hereafter come into existence, and all renewals and extensions of the foregoing, regardless of whether or not such rights have been registered with the appropriate authorities in such jurisdictions in accordance with the relevant legislation.

2.5. "Malicious Code" means any viruses, worms, trojan horses, time bombs, anomalies, malware, self-destruction mechanisms, copy protection schemes, or other instructions that can: 1) permit unauthorized access, (2) disable, destroy, or otherwise harm software, hardware, or data, (3) disable a computer program automatically with the passage of time, (4) violate application, software, data, operating system or network integrity, availability, or intended behavior or operation, (5) perform any other similar malicious actions, or (6) or otherwise alter software or systems, including Calix Systems. Malicious Code does not include errors and omissions in computer instructions intended to provide the functionality described in the documentation. 

2.6. “Service(s)” mean the services provided by Supplier to Calix, including the development of Work Product  as set forth herein and as more specifically set forth in one or more Statements of Work each of which will be incorporated herein.  Any and all references to Services shall be deemed to include and be a reference to Work Product..

2.7. “Statement of Work” or “SOW” means a detailed description of Services in a work order or document, whether or not entitled Statement of Work, which generally sets forth the milestones, timeframe, description of any Services, including but not limited to tasks, deliverables and responsibilities.

2.8. “Work Product” means all tangible and intangible materials, documents, ideas, communications, , data, tools, prototypes, samples, processes, designs, products, parts, works of authorship, inventions, research,  enhancements, graphic and electronic productions, engineering results,  algorithms, or other information in whatever form or medium created or prepared by Supplier or its employees, agents or subcontractors in connection with the Services; provided however, Work Product does not include Supplier’s Background IP (as defined below).

 

3. PAYMENT

3.1. In accordance with the applicable SOW, Supplier will present invoices to Calix.  Supplier will provide invoices, supporting documentation and receipts to the Calix individual designated at the address specified in the SOW or, shall submit electronic invoices in accordance with Calix’s electronic invoice and payment process.  Calix  will pay the amount of each accurate invoice within 75 days after the date of Calix’s receipt of such invoice.  All fees and expenses are payable in U.S. Dollars.  The invoice will include an itemized description and distribution of charges by Services performed and applicable expenses.  Calix shall have the right to withhold payment of any portion of any invoice disputed by Calix in good faith, provided that Calix timely pays any undisputed portion of the invoice and provides Supplier with written notice describing the basis of the dispute in reasonable detail.  Payment for all or part of the Services will not constitute acceptance. 

3.2. In no event shall Calix be responsible for any cost, expense or detailed line item that is for Supplier’s overhead, internal administrative costs, including costs of support personnel or other costs of doing business.  Reasonable, actual and documented expenses will be reimbursed to Supplier as set out in an SOW.

3.3. Calix may set off any amount owed by Calix to Supplier against any amount owed by Supplier to Calix.

 

4. TAXES

4.1. Each party will be responsible for: (i) any personal property taxes on equipment, software, or property it owns, uses, licenses, or leases from a third party, or leases as lessee or sub-lessee from third parties; (ii) franchise and privilege taxes on its business; and (iii) taxes based on its net income or gross receipts.  Supplier will be responsible for all sales, service, value-added, use, excise, consumption, and other taxes and duties payable by Supplier on any goods or services used or consumed by Supplier in providing Services where taxes and duties are imposed on Supplier’s acquisition or use of goods or services.  Calix will pay sales, service, value-added, use, consumption, or other taxes and duties imposed upon Services for which Supplier is required to collect such taxes and duties under local tax legislations, such taxes and duties are to be separately disclosed on Supplier’s invoice to Calix.  The parties will work together to structure the transactions under this Agreement to reduce taxes.  If Calix provides adequate proof of exemption from taxes and duties, Supplier will not include such taxes and duties on invoices.

4.2. Supplier will pay and be solely responsible for any and all city, state and federal unemployment insurance premiums, workers’ compensation insurance premiums, income taxes, social security taxes, and any other employment-related taxes incurred as a result of the performance of Services, and will be responsible for all obligations, reports and timely notifications relating to such matters.  Calix will have no obligation to pay or withhold any sums for such employment-related taxes or unemployment insurance on any amounts due to Supplier.

4.3. Calix will be entitled to deduct withholding tax from payments due Supplier as required for any domestic or foreign location where such taxes may be required to be collected or withheld.  If withholding tax is applicable, Calix will provide Supplier with withholding tax receipts from tax authorities.

 

5. TERM AND TERMINATION

5.1. This Agreement will commence as of the Effective Date, and will continue unless earlier terminated as set forth below.

5.2. Either party may terminate this Agreement if the other party breaches a material obligation under this Agreement, and that breach continues uncured for a period of thirty (30) days after receipt of written notice of the breach.  Such termination shall be effective immediately after expiration of the thirty (30) day period and no additional notice from the non-breaching party is required.  After termination, Supplier shall immediately stop performing the Services.  Calix shall have no liability to pay for any Services performed before or after the termination other than Services completed and accepted by Calix prior to the date of the termination notice.

5.3. Either party may terminate this Agreement, with written notice, in the event the other party files a bankruptcy petition or other proceeding relating to insolvency or protection of creditors’ rights, makes an assignment for the benefit of creditors, goes into liquidation or receivership, ceases to conduct business in the normal course, becomes insolvent, enters into suspension of payments or a period of moratorium, or is unable to pay debts as they become due.  Such termination shall be effective immediately upon issuance of the notice.  After termination, Supplier shall immediately stop performing the Services.  Calix shall have no liability to pay for any Services performed after issuance of the notice of termination.

5.4. Calix may terminate this Agreement, or all or any part of a SOW under it, for convenience with written notice to Supplier.  Such termination shall be effective immediately upon receipt of the notice.  After termination, Supplier will immediately stop performing Services unless directed otherwise by Calix.  Supplier will invoice Calix for any outstanding sums that are owed for Services completed and accepted by Calix prior to the date of the termination notice.  For work in progress, but not yet accepted Supplier is entitled to recover its reasonable and documented costs and expenses incurred in the performance of the Services that conform to the applicable SOW prior to the date of the termination notice.

5.5. After any termination pursuant to this Section and upon Calix’s request, Supplier shall promptly deliver to Calix any and all Work Product prepared for or on Calix’s behalf and all Calix-Supplied Property, if any.  If this Agreement is terminated before the Services have been completed, Calix may complete the Services or arrange for completion of the Services by a third party.

5.6. No termination of this Agreement or of any SOW will limit either party from pursuing any other remedies available to it, including injunctive relief.

 

6. CALIX-SUPPLIED PROPERTY

All tools, equipment, drawings, software, data, samples, designs, prototypes or other materials or items, acquired for Supplier’s use or furnished by Calix to Supplier (“Calix-Supplied Property”) are and remain the sole property of Calix.  Supplier will safeguard all Calix-Supplied Property while it is in Supplier’s custody and control; be liable for any loss or damage to the Calix Supplied Property; keep the Calix-Supplied Property free from all mechanic’s, materialmen’s and other similar liens or charges; use the Calix-Supplied Property only in the performances of Services for Calix; and return the Calix-Supplied Property to Calix within five (5) business days of Calix’s request. Supplier and its subcontractors waive any lien it or its subcontractors have in regard to the Calix-Supplied Property.  Supplier assumes all responsibility for any liens in the Calix Supplied Property incurred by its subcontractors.

 

7. WARRANTIES

7.1. Each party represents and warrants that: (i) it has obtained all necessary approvals, consents and authorizations to enter into this Agreement and to perform and carry out its obligations under this Agreement; (ii) the person executing this Agreement on the party’s behalf has express authority to do so and to bind the party; (iii) the execution, delivery and performance of this Agreement does not violate any provision of any bylaw, charter, regulation, or any other governing authority of the party and is duly authorized by all necessary partnership or corporate action; and (iv) this Agreement is a valid and binding obligation of the party.

7.2. Supplier warrants that all Services performed by Supplier will be free from defects in design, materials and workmanship and will be performed in a good and workmanlike manner, in accordance with applicable industry standards, and in accordance with any applicable SOW and other Calix-approved specifications.

7.3. Supplier represents and warrants that Supplier’s Services performed hereunder will not introduce Malicious Code into Calix's Systems.  Supplier will immediately: (i) provide, at its sole cost, and all assistance necessary to correct any problems caused by Malicious Code and (ii) pay Calix all costs, charges, fines, fees, or damages incurred by Calix or end users related to investigating, recovering, recalling, repairing, or replacing the affected Calix Systems and products that incorporate Services.

7.4. All warranties will survive any inspection and acceptance irrespective of payment by Calix.

7.5. Supplier agrees that these warranties continue during the term of this Agreement.

 

8. REMEDIES FOR NONCONFORMANCE OR BREACH OF WARRANTY OBLIGATIONS SERVICES AND ACCEPTANCE

8.1. Supplier shall perform the Services and Calix will either accept or reject the Services within a reasonable period of time after completion.  If Calix rejects the Services as defective or non-conforming, Calix shall have the following options:

a. cancel the applicable SOW without liability, receive a refund of all amounts, if any, paid for the Services, and receive reimbursement of any losses, costs or expenses incurred by Calix and/or its customers as a result of the defect or non-conformance; or

b. require Supplier to promptly perform, at its expense (including all expediting costs), all modifications necessary to correct the defects or nonconformities (such modifications to include re-performing the Services if required), and reimburse Calix for any losses, costs or expenses incurred by Calix and/or its customers as a result of the defects or non-conformance.  Calix shall accept or reject the Services as modified, and if Calix rejects, Calix shall have the same options with respect to the Services, as modified, as Calix had with respect to the Services as originally performed.

 

8.2. If Supplier fails to timely perform the Services, Calix shall have the following options:

a. cancel all or part of the applicable SOW and receive a refund of all amounts paid plus reimbursement of any losses, costs or expenses incurred by Calix and/or its customers as a result of the delay; or

b. require Supplier to expedite, at its own expense, performance of the Services and reimburse Calix for any losses, costs or expenses incurred by Calix and/or its customers as a result of the delay.

8.3. If Supplier breaches any of its warranties hereunder, Calix shall have the following options:

a. cancel all or part of the applicable SOW, receive a refund of all amounts paid, if any, for the Services and receive reimbursement of any losses, costs or expenses incurred by Calix and/or its customers as a result of the breach; or

b. require Supplier to promptly cure each breach at its own expense (including all expediting costs) and reimburse Calix for any losses, costs or expenses incurred by Calix and/or its customers as a result of the breach.

8.4. All amounts paid to Calix by Supplier under this Section are deemed to be direct damages for the purposes of Section 14.3 below.

 

9. INTELLECTUAL PROPERTY OWNERSHIP

9.1. All Work Product will, for all purposes, be Calix’s exclusive property.  Calix shall retain all right, title, and ownership in and to all Work Product, including, without limitation, all copyright, patent, trademark, trade secret, and other intellectual property rights therein.  Supplier acknowledges and agrees that the Work Product is “work made for hire” within the meaning of the Copyright Act of 1976, as amended.  To the extent the Work Product is deemed for any purpose not to be “work made for hire”, or, in any event, upon Calix’s reasonable request,  using a form reasonably required by Calix, Supplier will communicate and assign (and will require all of Supplier’s employees, agents, and subcontractors to  assign) to Calix all right, title, and interest in and to the Work Product, including, without limitation, all patents, copyrights, trademarks, inventions, and discoveries developed in the performance of the Services.  Supplier irrevocably waives any and all “moral rights,” and foreign or domestic rights of authorship or inventor-ship which Supplier may have in the Work Product, including, but not limited to rights under the Visual Artists Rights Act of l990, 17 U.S.C. 106A.  All waivers will be irrevocable and made prior to Supplier’s disclosure of the Work Product to Calix and sufficiently early to be effective under applicable laws.  In addition, Supplier shall obtain releases, licenses, permits, or other authorizations required or appropriate for use by Calix on a worldwide basis of any media items including all photographs, copyrighted materials, artwork, or other property or rights belonging to third parties obtained by Supplier for use in performing Services for Calix.

9.2. Supplier will have sole ownership of and all right, title and interest to all technology, software and other proprietary materials including any modifications or improvements thereof created or developed by Supplier prior to the Effective Date of or outside the scope of this Agreement and any Intellectual Property Rights of Supplier in and to same (“Supplier’s Background IP”).  Calix will have sole ownership of and all right, title and interest to all technology, software and other proprietary materials including any modifications or improvements thereof created or developed by or for Calix prior to the Effective Date of or outside the scope of this Agreement and any Intellectual Property Rights of Calix in and to same (“Calix’s Background Property”).

9.3.  In the event the Services provided by Supplier require use of Supplier’s Background Property, Supplier grants Calix (including the right to sublicense for Calix’s benefit) a perpetual, world-wide, royalty-free, fully paid-up, non-exclusive license under Supplier’s Intellectual Property Rights to use, have used, make, have made, offer for sale, sell, import, or otherwise dispose of, compile, decompile, disclose, copy, modify, display, distribute, or create derivative works of such Supplier’s Background Property in connection with Calix’s use or exploitation of the Services or Calix’s products incorporating or using the Service.

9.4. Except as specifically granted by Supplier in this Agreement, no license, implied or express, under any of Supplier’s Intellectual Property Rights, including any license to use, exercise, or incorporate any Supplier Intellectual Property Rights is conveyed by Supplier to Calix under this Agreement.  Notwithstanding anything to the contrary, no license, implied or express, under any of Calix’s Intellectual Property Rights, including any license to use, exercise, or incorporate any Calix Intellectual Property Rights is conveyed by Calix to Supplier under this Agreement.

 

10. TRADEMARKS

“Trademarks” mean: (a) Calix and the logo and any other Calix brand marks that are trademarks (i) owned by Calix and/or any of its Affiliates, or (ii) are used under license by Calix and/or any of its affiliates; and (b) Calix’s names, Calix’s domain names and all other Calix product and service marks, trade dress and other designations of source.  Unless Calix provides prior written approval, Supplier will not have the right to use the Trademarks, and will not alter or remove Trademarks, signage or other identifying marks, labels or notices.  Any approval or authorization granted for purposes of a SOW will cease upon completion of Services.  The provisions of this Section shall survive the termination or expiration of this Agreement

 

11. QUALITY

Supplier will maintain a quality system for the purpose of achieving major quality improvements in the Services supplied to Calix.  

 

12. CHANGE ORDERS

12.1. Calix may request a change to the scope of any SOW by completing a change order using the Calix form of change order (“Change Order”).

12.2. Supplier will provide a written statement to Calix detailing any proposed, required modifications to the Change Order, or notify Calix in writing that Supplier requires additional information.  Calix will timely provide such additional information to Supplier.  Upon agreement by the parties, Calix and Supplier will sign the Change Order.

12.3. Supplier will be responsible for all costs incurred by Supplier or Calix for Supplier’s implementation of modifications without Calix’s prior written approval.

 

13. CONFIDENTIAL INFORMATION

13.1. During the term of this Agreement and for the longer of (a) three (3) years following expiration or termination of this Agreement, or (b)  the period specified in any applicable SOW, the receiving party will: (i) not disclose Confidential Information to any third party; (ii) restrict disclosure of Confidential Information to only those employees, agents or consultants who must be directly involved with the Confidential Information for purposes of this Agreement and who are bound by confidentiality terms substantially similar to those in this Agreement; (iii) not reverse engineer, de-compile or disassemble any Confidential Information; (iv) use the same degree of care as for its own information of like importance, but at least use reasonable care, in safeguarding against disclosure of Confidential Information; and (v) promptly notify the disclosing party upon discovery of any unauthorized use or disclosure of the Confidential Information and take commercially reasonable steps to regain possession of the Confidential Information and prevent further unauthorized actions or other breach of this Agreement; and (vi) only use Confidential Information in connection with this Agreement.  If a party to this Agreement is on the premises of the other party and inadvertently receives information not related to this Agreement that a reasonable person would discern to be confidential to the other party, the party in receipt of such information must hold such information confidential notwithstanding anything to the contrary in this Agreement.

13.2. The receiving party is not obligated to maintain as confidential, Confidential Information that can be shown by documentation was: (i) known by the receiving party prior to such disclosure without an obligation of confidentiality; (ii) lawfully obtained from a third party or parties without a duty of confidentiality; (iii) distributed to third parties by the disclosing party without restriction; (iv) explicitly approved for release by written authorization of the disclosing party; (v) publicly available (or if it later becomes publicly available other than by unauthorized disclosure by the receiving party); or (vi) independently developed by the receiving party without the use of any of the disclosing party’s Confidential Information or breach of this Agreement. 

13.3. If a receiving party is required to disclose Confidential Information pursuant to applicable law, statute, or regulation, or order of a court or other governmental body, the receiving party will give to the disclosing party prompt written notice of the request and a reasonable opportunity to object to such disclosure and/or seek a protective order or appropriate remedy.  If, in the absence of a protective order, the receiving party determines, upon the advice of counsel, that it is required to disclose such information, it may disclose only Confidential Information specifically required and only to the extent it is compelled to do so.

13.4. Each party will keep confidential the existence and terms of this Agreement and that the parties are meeting or exchanging Confidential Information.  Each person performing Services for Calix on Supplier’s behalf will agree in writing to the confidentiality obligations contained in this Agreement. Calix is supplying Supplier with specific knowledge regarding the staging and kitting of Calix products including staging and kitting instructions, software documentation and other Calix proprietary material. Supplier will not use or market such specific knowledge to bid on opportunities for the sale of Calix products to end-users who have purchased Calix products and/or Calix professional services from other Calix authorized Suppliers and will not hold itself out as a Calix professional services provider in the market.

13.5. Except as specifically stated in this Agreement, all Confidential Information remains the property of the disclosing party and will not be copied or reproduced without the express written permission of the disclosing party, except for copies that are absolutely necessary in order to fulfill the confidentiality obligations contained in this Agreement.  The parties agree that e-mail is a normal form of communication and expect that Confidential Information will be distributed via e-mail under this Agreement and that regardless of the restriction on copying and reproduction, distribution of the Confidential Information by email is acceptable without prior written permission.  Within ten (10) days of receipt of the disclosing party’s written request, the receiving party will return all Confidential Information to the disclosing party along with all copies and portions thereof, including summaries, or will certify in writing by an authorized officer that all such Confidential Information has been destroyed.  However, the receiving party: (i) may retain one (1) archival copy of the Confidential Information that it may use only in case of a dispute concerning this Agreement or compliance with applicable law or regulatory authority; and (ii) may not be required to destroy, delete or modify any back-up tapes or other media made pursuant to automated archival processes in the ordinary course of receiving party’s business.  No license, express or implied, in the Confidential Information is granted other than to use the Confidential Information in the manner and to the extent authorized by this Agreement.

13.6. Supplier agrees that it will not, in any manner, use its knowledge of Calix’s business for the benefit of any other person or entity or divulge to others information or data concerning such things as Calix’s business affairs, including the names of customers, names and locations of employees, number or character of contracts, marketing strategies and prices, terms or particulars of Calix’s business.  Supplier will, in all things and in good faith, protect the goodwill of Calix’s business and keep confidential Supplier’s knowledge of such business affairs acquired prior to and during the term of this Agreement

13.7. The receiving party’s obligations regarding Confidential Information will survive the expiration or termination of this Agreement.

 

14. INDEMNITIES AND LIMITATIONS OF LIABILITY

14.1. Supplier will indemnify, defend and hold harmless Calix and its customers, officers, directors, employees, contractors, successors, assigns, and agents (“Calix Indemnitees”) against all claims that arise out of, or are connected with, Supplier’s acts or omissions under this Agreement, or the acts or omissions of its officers, directors, employees, contractors, representatives, or agents under this Agreement.  Supplier will reimburse the Calix Indemnitees for all losses, costs, and expenses the Calix Indemnitees incur as a result of such claims, including court costs and attorneys’ fees.

14.2. Supplier will not enter into any settlement agreement that affects any Calix Indemnitee without Calix’s prior written consent.  Calix may, at its sole expense, actively participate in any suit or proceeding, through its own counsel.

14.3. Except for Supplier’s obligations with respect to confidentiality and indemnification, security, ethics, conflicts of interest, compliance with laws, and subcontracting, in no event will either party be liable for any special, indirect, incidental, consequential, or punitive damages. In no event will Calix be liable to Supplier for any amounts in excess of the aggregate of the fees paid by Calix to Supplier for an SOW hereunder from which the cause of action arose.

14.4. The provisions of this Section will survive the termination or expiration of this Agreement.

 

15.  INSURANCE

15.1. Supplier will: (i) maintain statutory Workers’ Compensation and Employers’ Liability, Broad Form Commercial General Liability (CGL) including Contractual Liability Insurance, and Business Automobile Liability Insurance on behalf of Supplier and its subcontractors, in each instance of at least $1,000,000 (U.S.) combined single limit; (ii) maintain insurance covering its assets and operations in an amount sufficient to fund the costs of compliance with this Agreement; (iii) maintain professional liability insurance, which does not exclude cyber liability, in the amount of $5,000,000; (iv) maintain Umbrella/Excess Liability Insurance of $10,000,000 (U.S.) per occurrence; (v) name Calix as an additional insured under the Commercial General Liability policy and include a cross-liability endorsement; (vi) provide a waiver of subrogation in favor of Calix under the Workers’ Compensation and Employers’ Liability policies; (vii) cause its insurance to be designated as primary with respect to Supplier’s activity under this Agreement and provide for thirty days’ minimum prior written notice of cancellation or material change to Calix; (viii) at Calix’s request, furnish evidence of insurance from a locally licensed and admitted insurance provider reasonably acceptable to Calix; and (ix) require its contractors to maintain, at a minimum, the same coverage and limits required of Supplier.  Policy deductibles and self-insured retentions will not limit or apply to Supplier’s liability to Calix and will be Supplier’s sole responsibility.

15.2. Within thirty (30) days following the date of this Agreement or prior to Calix having any obligation to pay Supplier whatsoever, Supplier shall provide to Calix a certificate of insurance (ACCORD Form 25-S (1/95), or the latest edition) signed by a duly authorized officer or agent of the insurer certifying the levels of coverage, naming Calix as a certificate holder and as an additional insured and stating that Calix will receive at least thirty (30) days' written notice of policy cancellation, non-renewal or material modification.

15.3. Nothing contained in these insurance requirements will be deemed to limit or expand the scope, application or limits of the coverage afforded.  This coverage will apply to each insured to the full extent provided by the terms and conditions of the policies.  Nothing contained in these insurance requirements will affect or alter the application of any other provision contained in this Agreement.

15.4. Supplier represents and warrants that it is in compliance with these insurance requirements.

 

16. LEGAL NOTICES AND OTHER DOCUMENTS

All notices and other required communications will be in writing, in the English language, and will be transmitted to the addresses shown below to the attention of the Legal Department (or any updated addresses provided by notice in writing) either by: (i) personal delivery deemed accepted at time of delivery; (ii) internationally recognized overnight delivery courier deemed accepted after one or two days from sending depending on delivery type specified; (iii) email with confirmed receipt; or (iv) facsimile with confirmed receipt.

Calix will send notices to Supplier to the address provided in the Supplier invoice or as follows:

 

United States

Attention:

Facsimile: 

 

Supplier will send notices to Calix as Follows:

Calix, Inc.

2777 Orchard Parkway, San Jose, CA 95134

 

Attn:

 

 

 

 

 

with a copy to:

Calix Legal Department

Calix, Inc.

2777 Orchard Parkway, San Jose, CA 95134

 

17. DISPUTE RESOLUTION/GOVERNING LAW

17.1. This Agreement will be interpreted under, and any disputes whether sounding in contract, tort or otherwise arising out of this Agreement will be governed by, the laws of California, excluding its conflicts of law principles.  Supplier irrevocably consents to the exclusive jurisdiction of the courts located in San Francisco, California in connection with all actions arising out of or in connection with this Agreement, and waives any objections that venue is an inconvenient forum.  Supplier further agrees that it will not initiate any action against Calix in any other jurisdiction.  Supplier agrees that a final judgment in any such action or proceeding will be conclusive and may be enforced in any other jurisdiction (including without limitation, the appropriate courts of the jurisdiction in which Supplier is resident or in which any property or an office of Supplier is located) by suit on the judgment or in any other manner provided by law.

17.2. Calix and Supplier will attempt to settle any claim or controversy arising out of this Agreement through consultation and negotiation in good faith and in the spirit of mutual cooperation; provided, however that this does not preclude either party from initiating a legal proceeding.  Agreement, by the parties, to any alternative dispute resolution procedure will not be construed under the doctrines of laches, waiver, or estoppel to adversely affect the rights of either party.  Supplier’s performance under this Agreement will not be suspended during the pendency of any dispute.

17.3. The provisions of this Section shall survive the termination or expiration of this Agreement.  In the event that any provision of this Agreement shall be held unenforceable, such provision shall be enforced to the maximum extent permissible, and the remaining provisions of this Agreement shall remain in effect.

 

18. GENERAL PROVISIONS

18.1. Supplier is an independent contractor in the performance of its obligations under this Agreement, and Calix will have no control over the methods and means Supplier uses to fulfill its obligations under this Agreement.  Supplier, its employees, or any individuals performing Services on its behalf, for Calix, are ineligible to participate in any Calix benefit plan and hereby waive all right and claim to participate in said plans.

18.2. During the term of this Agreement, Supplier will not use the Calix name or generically refer to Calix in any media, public announcements, marketing materials, proposals, or other advertising, including websites, without Calix’s prior written consent, which Calix may grant or withhold in its sole discretion.

18.3. Supplier will maintain all records related to the Services as required by this Agreement, law, rule, or regulation.

18.4. This Agreement does not limit Calix’s right to perform, or to select others to perform, the same or similar services.  Supplier personnel who perform Services cannot provide similar services for a Calix competitor during the time that individual is performing the Services and for a period of eighteen (18) months thereafter.

18.5. Supplier may not assign this Agreement or any of its rights or obligations without the prior written approval of Calix.  Any attempted assignment, delegation or transfer without the necessary approval will be void.  Unless otherwise agreed in writing by Calix, in the event of a sale or transfer of Supplier’s business or assets, whether by operation of law or otherwise, Supplier shall make assumption of its obligations under this Agreement a condition of the sale or transfer.  Notwithstanding the foregoing, Calix may assign its rights and obligations under this Agreement to an Affiliate and in the event of a Calix acquisition, merger, consolidation, or similar transaction, including any spin-off, divestiture or other separation of a Calix business unit, Calix may (i) assign its rights or obligations under this Agreement in whole or in part (ii) split and assign its rights and obligations under this Agreement, in part, so as to retain the benefits of this Agreement for both Calix and the assignee entity(ies) (and their respective Affiliates) following the split or (iii) replicate its rights and obligations under this agreement, in whole, so as to retain the benefits of this Agreement for both Calix and the assignee entity(ies) (and their respective Affiliates) following the split without the need for Supplier’s approval.  Supplier will work cooperatively with Calix and the assignee entity(ies) to ensure a smooth and orderly transition.

18.6. This Agreement is binding upon, inures to the benefit of, and is enforceable by the parties and their respective successors and permitted assigns.

18.7. This Agreement does not grant Supplier or any third party, by implication, estoppel, or otherwise, any right to inspect or examine any of Calix's data, documents, instruments, financial statements, balance sheets, business records, software, systems, premises, or plants.

18.8. Supplier will not subcontract any of its obligations under this Agreement without Calix's prior written consent.  Supplier retains responsibility for all obligations subcontracted hereunder and will indemnify Calix against any liability caused by the acts or omissions of Supplier’s subcontractors.

18.9. During and for a period of one year after the completion of Services, Supplier will not recruit, induce, or solicit for hire or employment, whether directly or indirectly, any Calix personnel whose duties relate to Services or who Supplier met as a result of the Services.

18.10. Calix’s failure to enforce or insist on performance of any of the terms or conditions in this Agreement will not operate as a waiver of that or any other right.  Unless expressly stated otherwise in this Agreement, all rights and remedies are cumulative, and if either party breaches this Agreement, the non-breaching party has the right to assert all available legal and equitable remedies.

18.11. This Agreement may be executed in one or more counterparts, all of which will be considered one and the same Agreement.  Facsimile, electronic and digital signatures will be binding to the same degree as original signatures.  All rights and obligations that by their nature are intended to survive will survive termination of this Agreement or any SOW.

18.12. If a provision of this Agreement is held to be unenforceable under applicable law, the unenforceable provision will not affect any other provision in this Agreement, and this Agreement will be construed as if the unenforceable provision was not present.  The parties will negotiate in good faith to replace the unenforceable provision with an enforceable provision with effect nearest to that of the provision being replaced.

18.13. The headings in this Agreement are for convenience and do not form a part of this Agreement.

18.14. The following is provided as notice in compliance with United States Federal law:  An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that is made (a) in confidence, directly or indirectly, to a Federal, State, or local government official, or made in confidence to an attorney, solely for the purpose of reporting or investigating a suspected violation of law; or (b) in a complaint (or other document) filed under seal in a lawsuit or other proceeding. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to his/her attorney and use the trade secret information in the court proceeding, if (a) the individual files any document containing the trade secret under seal; and (b) does not disclose the trade secret, except pursuant to court order.

 

19. ETHICS AND CONFLICTS OF INTEREST

Supplier agrees to perform the Services hereunder with the highest ethical standards.  Calix will not do business with any entity or person where Calix believes that: (i) payoffs or similar improper or unethical practices are involved; or (ii) the business is in violation of any laws, including, but not limited to local environmental, employment, child and forced labor, safety and anti-corruption statutes.  Calix will not use a third party to perform any act prohibited by law or by Calix’s Code of Business Conduct.  All arrangements with third parties must comply with Calix policy and the law.  Calix expects Supplier to abide by this policy and not to have a relationship with another entity or person, or engage in any activity that results or may result in a conflict of interest, or embarrassment to Calix, or harm to Calix’s reputation. Calix expects Supplier to understand the principles and intent of the Corporate Social Responsibility (CSR) principles or any internationally recognized equivalent, in the areas of Environmental Sustainability, Health and Safety, and Labor and Ethics, and to provide Services in conformance with these principles to the extent applicable. No Services supplied under this Agreement have been or will be produced utilizing forced, slave or indentured or convict labor or utilizing the labor of persons in violation of the minimum working age law in the country of manufacture or in any country in which the Services are provided or in violation of minimum wage, hour of service or overtime laws in the country of manufacture or any country in which Services are provided. Supplier shall provide written evidence, upon request by Calix, sufficient to demonstrate to Calix its compliance with this Section, including evidence and/or certification that no slave or indentured labor, no child labor and no human trafficking is used in its operations, as well as in the operations of its supply chain, if applicable.  Supplier will establish and maintain policies, procedures, and compliance programs sufficient in order to ensure its compliance with this Section and provide, at its own cost, copies of such compliance policies, procedures and program documents to Calix upon request.   Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other Party in connection with this Agreement.  Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.  If either party learns of any violation of the above restriction, it will use reasonable efforts to promptly notify the other party’s Legal Department.  If Supplier fails to comply in any respect with all of these requirements, failure to comply will be considered a material breach of this Agreement and Calix may immediately, and without liability, terminate this Agreement. 

 

20. COMPLIANCE WITH LAWS AND REGULATIONS

Supplier represents and warrants that all Services will be performed in conformance with all applicable legal requirements and standards, including without limitation, all applicable environmental, health and safety, slavery and human trafficking laws, statutes, and regulations, including but not limited to the Modern Slavery Act 2015, and including certain Calix requirements for compliance with law.  If applicable, Supplier will comply with U.S. Federal Acquisition Regulation (FAR) 52.219-8 pertaining to Utilization of Small Business Concerns, and any other state and local, small and other business utilization laws and with FAR 52.222 et seq. pertaining to Segregated Facilities, Equal Opportunity, Equal Opportunity for Veterans, and Affirmative Action for Workers with Disabilities and maintain, at each establishment, affirmative action programs required by the rules of the U.S. Secretary of Labor (41 CFR 60-1 and 60-2).  Supplier and all of their subcontractors shall abide by the requirements of 41 CFR §§60-1.4(a), 60-300(a) and 60-741.5(a). These requirements prohibit discrimination against qualified individuals based on their status as protected veteran or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability. Supplier will maintain appropriate compliance programs, be able to demonstrate a satisfactory record of compliance in its business conduct and correct any non-compliance with this Section as promptly as can reasonably be accomplished. If Supplier fails to comply in any respect with all of these requirements, failure to comply will be considered a material breach of this Agreement and Calix may immediately, and without liability, terminate this Agreement. Supplier shall comply with all applicable laws, orders, rules and regulations related to work permits/authorizations and visas for its employees prior to any employee providing the Services under this Agreement.  Upon Calix’s reasonable request, Supplier shall provide Calix a Letter of Guarantee evidencing Supplier’s compliance with any applicable law, order, rule or regulation prior to any Supplier employee providing Services.  Supplier shall provide Calix prompt notice of any change or revocation of an employee’s work permit/authorization or visa status and provide a replacement employee, if required.  Supplier shall indemnify Calix against any liabilities caused by any non-compliance with this Section. Calix, at its sole discretion, will provide reasonable support, being the host party and as absolutely required by local laws, orders, rules and regulations, for Supplier obtaining work permits/authorizations and visas for individual employees providing the Services under this Agreement.  Supplier shall not make blanket requests for immigration approvals.  Individual requests related to permits/authorizations and visas for individual employees providing the Services under this Agreement must be made by following the Notice provision section of the Agreement.

21. ENTIRE AGREEMENT AND ORDER OF PRECEDENCE

This Agreement, including any attached exhibits and addenda, expressly stated to be incorporated into this Agreement by reference or by link to a Calix web site, is the entire understanding between the parties concerning the subject matter hereof and supersedes all prior discussions, agreements and representations, whether oral or written, express or implied.  No alterations or modifications of this Agreement will be binding upon either party unless made in writing and signed by an authorized representative of each party.  In the event of a conflict between this Agreement and any exhibit, addendum hereto or SOW, the Agreement will control unless and to the extent that an express deviation is agreed to in writing by the Parties.  Terms and conditions stated on any purchase order, quote, acknowledgement, invoice or other such document relating thereto, will not change, alter, or add to the terms of this Agreement and its exhibits and addenda.

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives on the dates written under their signatures below intending for this Agreement to become effective as of the Effective Date.

Calix, Inc.	Supplier
By:	By:
(Signature of authorized representative)	(Signature of authorized representative)
Name:	Name:
Title:	Title:
Date:	Date:

 

 

EXHIBIT A
Statement of Work

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