THESE TERMS AND CONDITIONS FOR VENDORS (the “General Terms”) between the entity to which the purchase order is addressed. or its affiliate incorporating these General Terms (“QTS”) and the vendor named on that purchase order (“Vendor”) shall govern any transaction between the Parties unless otherwise agreed to in writing by QTS. By selling any Equipment to QTS or performing any Services for QTS, Vendor confirms that the following General Terms apply to QTS’ purchases. Any modifications to these General Terms must be in writing and signed by QTS.

1. Applicability. These General Terms govern any Services or Equipment provided by Vendor to QTS. No terms or conditions proposed by Vendor, such as pre-printed terms and conditions, shall apply. Any work performed toward Services or Equipment in the absence of a valid Purchase Order shall be at the sole risk of Vendor, and QTS is not obligated to pay for any such work. However, if Vendor begins and QTS accepts such work, these General Terms shall never-the-less apply. QTS may issue a change order to increase, decrease or revise the scope or particulars of any Purchase Order (“Change Order”) subject to reasonable adjustments by Vendor.
2. Precedence; Execution of Purchase Orders. The order of precedence between these General Terms and the Purchase Order shall be as follows: (i) the Change Order, (ii) the Purchase Order, and (iii) these General Terms.  If there is any inconsistency between these General Terms and a Purchase Order or a Change Order, the inconsistent provision in the document with the lower level of precedence shall be null and void and only the terms of the document that takes precedence shall apply.  However, any such inconsistent provision of a Purchase Order and/or a Change Order shall apply to the extent (and only to the extent) the provision is expressly stated to supersede the inconsistent provisions of these General Terms and/or a Purchase Order is expressly agreed to by QTS and Vendor in respect of that Purchase Order.
3. Delivery of Equipment. If these General Terms apply to Equipment purchases, the following provisions shall apply.
   1. Pricing and Delivery. Equipment purchased under these General Terms shall be shipped by Vendor Delivered Duty Paid (DDP Incoterms 2020), with the price including handling, unloading, storing and installing.  The Equipment shall be properly packaged and/or crated by Vendor in accordance with good commercial practice to be protected against hazards of shipment, storage and environmental exposure in full compliance with the requirements of QTS and any applicable government requirements for packaging, labeling, shipping and documentation.  The shipment date shall be mutually agreed by the parties in writing, and Vendor shall not ship ahead of the scheduled delivery date unless authorized by QTS in writing. Vendor must notify QTS at the email address noted on the Purchase Order as QTS Requester Email (or such other email address notified in writing by QTS to the Vendor) at least 5 London banking days in advance of the arrival date of any shipment or else QTS may, at its option, reject the delivery for failure of timely notice and return the Equipment to Vendor at Vendor’s expense.  In addition, as soon as reasonably practicable after delivery, Vendor shall provide an executed delivery confirmation to the email address noted on the Purchase Order as QTS Requester Email (or such other email address notified in writing by QTS to the Vendor).  QTS will not pay shipping on any loads sent less than a truckload freight shipping (“LTL”).  A packing slip indicating each item with the QTS equipment number and item quantity shipped shall be included in every shipment.  The packing list shall be attached in a conspicuous manner to the exterior of one of the containers in each shipment.  QTS’ Purchase Order number must also appear on all packing slips, invoices and correspondence.     
   2. Time is of the Essence. Delivery dates are firm and TIME IS OF THE ESSENCE WITH RESPECT TO DELIVERY.  Vendor shall promptly notify QTS in writing if it anticipates any delays in delivery and shall use all commercially reasonable efforts to meet the required delivery deadlines.
   3. Inspection and Acceptance. Vendor shall provide QTS access to Vendor’s manufacturing location for periodic inspection of Equipment fabrication and confirmation of schedule status.  QTS may inspect the Equipment at the time and place of delivery and may reject the Equipment for nonconformance.  QTS will be deemed to have accepted the Equipment unless it rejects such equipment for nonconformance within 15 London banking days of delivery (and, for the avoidance of doubt, acceptance does not relieve Vendor of the representations, warranties, covenants or compliance provisions elsewhere in these General Terms below or estop claims or remedies thereunder).  QTS may return (at Vendor’s expense) all Equipment delivered in error or beyond the quantity ordered or in a damaged condition.  If delivered in a damaged condition, QTS nevertheless may accept the damaged Equipment and: (i) repair part or all of the damage at Vendor’s expense, (ii) require replacement of the damaged Equipment by Vendor at Vendor’s expense, (iii) accept the damaged Equipment and adjust purchase price as QTS deems appropriate, (iv) purchase replacements for the damaged Equipment elsewhere at Vendor’s expense in the event Vendor does not replace the damaged Equipment within 15 days after notice is given by QTS, or (v) withhold payment until the damaged Equipment is repaired or replaced.  Title and all risk of loss or damage to all Equipment remains with Vendor until delivered to, inspected by and accepted by QTS. Vendor shall bear all losses, damages and expenses arising out of rejection due to nonconformance.
4. Site Access and Vendor Personnel. Vendor shall comply with QTS’s site rules and regulations when accessing QTS’s premises.  Before accessing QTS’s premises, Vendor shall familiarize itself with the project site and safety rules and regulations and obtain all necessary permits and approvals to enter the premises.  Before submitting any Vendor Personnel to perform work under the Purchase Order and upon QTS’ reasonable request thereafter, Vendor shall (to the extent legally permitted) assure competency and eligibility of Vendor Personnel, including through a drug screen, criminal background check and identity verification through National Insurance numbers or other such identification authentication.   Vendor is responsible for the safety and supervision of Vendor Personnel and upon request from QTS will promptly replace any Vendor Personnel currently providing services and manage the transition of replacement Vendor Personnel to minimize impact on the services.  Upon completion of its work, before leaving QTS’s premises, Vendor shall leave the site clean and ready for occupancy.  Vendor shall repair any damage to QTS’s premises caused by Vendor or Vendor Personnel at Vendor’s sole expense. 
5. Fees and Payment.
   1. Payment Terms. QTS will pay Vendor all undisputed amounts due under the Purchase Order in accordance with this Section 5 and the applicable Purchase Order (the “Fees”).  Pricing is firm and is not subject to change without prior written approval of QTS.  Unless otherwise specified herein, any undisputed and valid invoices submitted in compliance with this Section 5 for the Equipment or Services shall be due and payable 90 days by QTS after QTS’ receipt of such invoice.  Vendor shall submit to QTS all invoices, referencing the applicable Purchase Order number at [email protected] for review, coding and approval within 30 days of: (i) completion of the Services; or (ii) delivery and acceptance of the Equipment.  Failure to submit an invoice within 90 days of such date shall be a waiver by Vendor of its right to collect on such invoice.
   2. Invoice Requirements. The following information must be included on every invoice submitted to QTS in order to be deemed valid: (i) invoice date; (ii) sequential invoice number; (iii) Vendor’s VAT identification number; (iv) QTS’ VAT identification number; (iv) Vendor’s address; (v) QTS’ address specified on the Purchase Order; (vi) the quantity and nature of goods sold and services provided; (vii) the remuneration excluding VAT, separated per different VAT rate and/or exemptions; (viii) the applied VAT rate(s); and (ix) the monetary amount of VAT.   In addition, if required by QTS, each invoice must be accompanied by a waiver of liens and claims for the period for which payment is requested in such form as may be reasonably acceptable to QTS (unless the jurisdiction in which the project is taking place has statutory lien waiver forms, in which case such forms shall be utilized). 
   3. Bill and Hold. If the parties agree to invoicing for Equipment not yet shipped (“Bill and Hold”) the parties shall determine a process for such Bill and Hold invoicing.  This shall include Vendor submitting through a QTS-specified process/method acceptable invoice documentation and Proof of Work Completion.  This shall include (i) a Vendor invoice containing QTS part number and finished serial numbers for each completed Equipment and a lien waiver, (ii) Vendor photographs of the finished Equipment, and (iii) Vendor photographs of the Equipment serial plate or serial number, marked on the finished Equipment.  QTS will determine, in its sole discretion, whether the supporting documentation and Proof of Work Completion are acceptable.  In addition, following delivery and inspection of the Equipment, QTS may require that the parties execute a formal acceptance document.  Vendor acknowledges that in these Bill and Hold events, title shall not transfer until QTS has provided written acknowledgement that supporting documentation and Proof of Work Completion are acceptable.  Vendor also agrees to submit the following documentation to QTS at a mutually agreed upon time frame: (x) a full accounts receivable Summary for the QTS account, and (y) a summary of open orders with percentage of work complete and estimated billing dates for finished equipment.
   4. Disputes. Payment may be withheld by QTS when it reasonably believes that: (1) the Equipment is nonconforming or defective; (2) the Services were not performed in accordance with these General Terms; and/or (3) any claim has been filed against Vendor or QTS or any of QTS’ and/or QTS’ Affiliate’s properties.  In the event of a dispute of a Vendor invoice or portion thereof, QTS will notify Vendor of such dispute and may withhold payments of such disputed portion, which shall not be considered a breach of the Agreement.  The parties shall work together to resolve any such dispute in a timely manner.  In addition to any other rights or remedies that QTS may have, QTS may, at any time, and to the fullest extent permitted by law, set off and apply any and all liabilities and amounts payable by Vendor hereunder against amounts owed by QTS to Vendor.
   5. Taxes.  Each party shall be solely responsible for any taxes levied against or upon them as a result of the transactions under these General Terms or any Purchase Order, and prices shall by inclusive of all importation duties or other costs of customs clearance.  QTS may recover any unduly paid taxes or duties paid by QTS as they relate to the scope of Equipment or Services provided to QTS.
6. Representations, Warranties and Covenants.
   1. As to Services. If Vendor is providing Services, Vendor hereby represents and warrants as follows: (i) Vendor possesses all licenses and permits necessary to provide the Services; (ii) Vendor shall perform the Services in accordance with industry standards and in a timely and professional manner, acting in good faith with care, attention, and all due diligence and in accordance with best industry standards, using personnel possessing all necessary and sufficient training and experience to perform the Services; (iii) Vendor shall perform the Services in compliance with any applicable QTS policy and procedures applicable to security, safety, conduct, health and welfare that are provided to Vendor, posted at the applicable site or posted on QTS’ website; this includes the QTS Facility Site/Data Center Rules and Regulations located at https://www.qtsdatacenters.com/company/data-center-rules, which may be updated by QTS from time to time; (iv) the Services shall not prohibit or prevent QTS from complying with Applicable Privacy Laws; (v) the Services do not infringe any patents, copyrights, trademarks, trade secrets or covenants; (vi) Vendor shall comply with all applicable laws, regulations, ordinances and orders and industry best practices as provided in Section 9 in performing the Services; and (vii) Vendor shall notify QTS within 24 hours of any alteration, delay or stoppage of Services regardless of the reason therefor.
   2. As to Equipment. To the extent Vendor is providing Equipment, Vendor hereby represents and warrants as follows: (i) the Equipment is new (unless clearly specified and agreed upon with QTS as used or refurbished) and is free from defective material and/or workmanship; (ii) the Equipment is merchantable and fit for the particular purpose for which QTS is purchasing the Equipment; (iii) the Equipment complies with the Documentation, which sufficiently and accurately describes features, functionality, installation and operation of Equipment; (iv) Vendor has and shall transfer to QTS clean, marketable, and unencumbered title to all Equipment; (v) all Equipment provided by Vendor is “DRC conflict free” as defined in the U.S. Dodd-Frank Wall Street Reform and Consumer Protection Act; (vi) the Equipment does not infringe any patents, copyrights, trademarks, trade secrets or covenants and is free of claims by third-parties; (vii) The Equipment is free of any harmful code, open source software or other third party software that imposes any obligations or conditions on QTS’s intellectual property or Confidential Information and Data; and (viii) Vendor shall comply with all applicable laws, regulations, ordinances and orders and industry best practices as provided in Sections 9 and 12.2 in producing, delivering and installing the Equipment.  Vendor shall cause third-party Vendors to issue any warranties or guarantees directly to QTS.  If any such third party Vendor refuses to issue any such warranties or guarantees directly to QTS, Vendor hereby assigns such warranties and guarantees to QTS.  Warranties set forth in this Section 6.2 and warranties issued or assigned to QTS will be for a period equal to the longer of (1) Vendor’s standard warranty period, (2) the standard OEM warranty offering, or (3) 60 months.
7. Termination; Cancellation.

   1. Right to terminate and cancel

      1. These General Terms shall continue until the Purchase Order is completed.

      2. The Purchase Order may be terminated or cancelled (i) in whole or in part by QTS without cause at any time on delivery of prior written notice (which notice may specify a future termination date); (ii) in whole or in part by QTS for cause immediately; (iii) by either party immediately if the other party is subject to a bankruptcy filing or materially breaches any obligation hereunder and fails to cure such breach (if such breach is curable) within 15 business days after receiving notice specifying the nature of the breach; or (iv) by QTS immediately if Vendor fails to comply with Section 9.3.  For “cause” includes fraud, negligence, wilful misconduct or deliberate default, material breach of the terms of these General Terms or any Purchase Order and/or non-compliance with applicable law or regulation.

   2. Consequences of termination or cancellation

      1. If QTS terminates or cancels the Purchase Order under Section 7.1: (i) with respect to Services, Vendor shall stop work as promptly as practicable and make all work-in-progress available to QTS upon receipt of such termination notice, or (ii) with respect to Equipment, stop production as promptly as practicable upon receipt of such termination notice. 

      2. If QTS terminates or cancels the Purchase Order under Section ‎7.1.2 (ii)-(iv) above and provides Vendor with a written request to stop providing the Services and/or Equipment (the “Request”), (i) with respect to Services, Vendor shall stop work as promptly as practicable and make all work-in-progress available to QTS upon receipt of the Request, or (ii) with respect to Equipment, stop production as promptly as practicable upon receipt of the Request. For the avoidance of doubt, QTS shall have no obligation to payment for (i) Services performed prior to the termination date or notice thereof and/or (ii) Equipment delivered prior to the termination date or notice thereof, if such Services and/or Equipment are not adequate and in accordance with these General Terms and/or any relevant Purchase Order.

      3. Subject to Section 7.2.5, QTS’ sole obligation in the event of termination or cancelation is payment (1) in respect of Services, for Services actually performed by Vendor in accordance with these General Terms and/or any relevant Purchase Order through to the termination date or notice thereof and (2) with respect to Equipment (x) for Equipment delivered and accepted in accordance with these General Terms and/or any relevant Purchase Order through to  the termination date or notice thereof. For the avoidance of doubt, QTS shall have no obligation to payment for (i) Services performed prior to the termination date or notice thereof and/or (ii) Equipment delivered prior to the termination date or notice thereof, if such Services and/or Equipment are not adequate and in accordance with these General Terms and/or any relevant Purchase Order.

      4. Subject to Section 7.2.5, with respect to customized Equipment fully produced before termination or notice thereof but not yet delivered and not easily re-sellable, in the event of termination or cancelation, QTS is obliged to pay a termination charge equal to the cost of materials and labor incurred (and not otherwise mitigated) prior to receipt of the termination notice, provided Vendor takes all reasonable steps necessary to mitigate costs and provides QTS with such charges within 30 days of such termination. 

      5. If QTS terminates or cancels the Purchase Order under Section ‎7.1.2 (ii)-(iv), the Fees due under the Purchase Order being terminated or cancelled shall not be payable by QTS.

8. Certain Remedies.
   1. Repair, Replacement, Refund, Re-performance.
      1. As to Services. Without limiting any other remedies available to QTS, if the Services do not comply with the representations and warranties set forth in Section 6 for a period of twenty-four (24) months from performance, Vendor shall correct the deficiency or re-perform the Services without charge and in a timely manner, not to exceed 30 days.  If Vendor is unwilling or unable to re-perform such Services, Vendor shall issue (a) a refund for all related Services in the amount of all fees paid under the Purchase Order for such related Services, or (b) a credit to QTS for the fees paid for such Services, at QTS’ election. 
      2. As to Equipment. Without limiting any other remedies available to QTS, if any Equipment fails to comply with the representations and warranties set forth in Section 6 during the warranty period provided in Section 6.2, QTS may elect to either (1) require Vendor to retrieve the non-conforming Equipment at its cost or return the non-conforming Equipment to Vendor by shipping F.O.B. to QTS’ facility freight prepaid by Vendor and, in either case, receive, at QTS’ election, a (a) refund for such Equipment and all related Services in the amount of all fees paid under the Purchase Order for such Equipment and related Services, or (b) credit to QTS equal to the purchase price of the Equipment, or (2) require Vendor or a third-party (at Vendor’s expense) repair or replace such non-conforming Equipment on location and at Vendor’s expense so that it performs in accordance with such warranties (however, if after repeated efforts (not to exceed thirty (30) days), Vendor is unwilling or unable to repair or replace such non-conforming Equipment, QTS may again elect the remedy set forth in clause (1) above). 
   2. Liquidated Damages. If Vendor fails to perform the Services or deliver the Equipment by the date set forth in the Purchase Order (“Performance Milestone”), Vendor shall pay QTS the following liquidated damages calculated from the specified Performance Milestone: (i) day 1 = four percent (4%) of the applicable Services or Equipment price; plus (ii) day 2 = five percent (5%) of the applicable Services or Equipment price; plus (iii) day 3 and each additional day Vendor fails to perform thereafter = ten percent (10%) of the applicable Service or Equipment price (“Liquidated Damages”).  The Liquidated Damages shall not exceed the applicable Purchase Order amount or $250,000 in the aggregate (whichever is higher).  Liquidated Damages under this Section 8.2 is the exclusive remedy for the damages resulting from a performance delay, are a reasonable estimate of the damages QTS will suffer as a result of delay and are to be assessed as liquidated damages and not as a penalty.  Such Liquidated Damages shall be applied against the next payment otherwise falling due in accordance with these General Terms or the Purchase Order, until exhausted.  However, Vendor shall issue a check to QTS for the remaining balance of the Liquidated Damages if the Purchase Order is thereafter terminated.
   3. Indemnification.
      1. Vendor shall defend, indemnify and hold harmless QTS, its officers, directors, employees, parent, subsidiaries, affiliates and related companies, successors and permitted assigns (“Indemnified Parties”) against any claims, damages, losses, liability, costs and expenses of any nature whatsoever, including but not limited to reasonable attorneys’ fees, expert fees and litigation costs (“Losses”), arising out of the Purchase Order governed by these General Terms, any Security Incident, the Equipment or the performance of the Services by Vendor or its employees, agents or subcontractors. QTS may, at its election, withhold any monies payable hereunder and apply the same to the payment of any amounts due under this Section.
      2. Vendor shall defend, indemnify and hold harmless QTS and its Indemnified Parties against any Losses resulting from any third-party claim or demand that the Services or Equipment infringes or violates any third party’s copyright, patent or trademarks rights or misappropriates a third party’s trade secret. In addition, Vendor shall (at its expense) procure the right for QTS to continue using the Services or Equipment at no cost to QTS, modify the Services or Equipment so that they are no longer alleged to infringe, or replace the Services or Equipment with non-infringing substitutes (but in all cases without material diminution in function in QTS’s reasonable estimation).
      3. Vendor shall defend, indemnify and hold harmless QTS and its Indemnified Parties against any Losses, arising out of or relating to the violation of the Vendor’s obligations under Section 11 or Applicable Privacy Laws (as defined below).
      4. Upon notice of a matter giving rise to indemnification under Sections 8.3.1, 8.3.2 or 8.3.3 above (a “Claim”), QTS will promptly provide written notice to Vendor of such Claim with any written documentation or confirmation of such Claim in QTS’ possession. Within 10 days of receipt of such notice of Claim, Vendor shall provide written confirmation of such receipt and its intent to assume control over the defense or settlement of such Claim.  Any defense or settlement of such Claim shall be at Vendor’s sole expense.  However, QTS may elect to participate in the defense or settlement of such Claim at QTS’ expense.  If QTS elects to participate, Vendor shall remain in control of such defense or settlement.  Vendor shall not settle any claim that imposes any liability or obligation on QTS without QTS’ express prior written consent.
9. Compliance.
   1. Compliance Generally. Vendor shall comply with all applicable laws, regulations, ordinances and orders in jurisdictions where the parties do business, and industry best practices, in performing any Services or in manufacturing, delivering and installing any Equipment, including without limitation all applicable anti-bribery laws (such as the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act), all applicable laws regarding health and safety, and all applicable modern slavery or anti-human trafficking laws.  Vendor shall conduct its business in a manner consistent with QTS’ Supplier Code of Conduct located at https://www.qtsdatacenters.com/company/supplier-code-of-conduct, which may be updated by QTS from time to time.  Vendor shall, at its sole expense, procure any necessary permits, certificates or licenses required by all applicable laws and supply QTS with copies of the same upon request.   
   2. Equal Employment. QTS is an equal opportunity employer.  As such, the Vendor agrees that it will abide by all applicable laws and regulations regarding equal opportunity and non-discrimination.
   3. Sanctions. Vendor shall comply with all applicable export and import laws and regulations of the United Kingdom, the jurisdiction where the Services are performed or Equipment is delivered and any other applicable jurisdiction (“Export Laws,” and such jurisdictions, the “Applicable Jurisdictions”) to assure that no Services or Equipment or product of which the Equipment forms a part are: (i) exported or imported, directly or indirectly, in violation of Export Laws or (ii) used for any purposes prohibited by Export Laws.  Vendor represents and warrants that neither it nor any Vendor Personnel appear on the United States Department of Treasury, Office of Foreign Asset Controls (“OFAC”) list of Specially Designated Nationals and Blocked Persons and/or similar laws and regulations of the Applicable Jurisdiction and are not otherwise a person from whom QTS may not legally receive Equipment or Services.  Vendor may not provide access to property of or leased by QTS to any person (including any natural person or government or private entity) that is located in or is a national of Cuba, Iran, Libya, Sudan, North Korea, Syria, the Crimea region of Ukraine, the so-called People’s Republic of Donetsk, the so-called People’s Republic of Luhansk or any country that is embargoed or highly restricted under United States export regulations unless such person or entity has a valid, documented, and verifiable exemption by or authorization by OFAC to conduct business within the United States or, as applicable, a similar governmental body under similar laws and regulations under local law governing QTS and/or the applicable QTS Affiliate.  Such documentation shall be acceptable to QTS in its sole discretion.  Vendor confirms that it is not, and shall not become, owned (at 50% or greater level) or controlled, or controlled directly or indirectly (individually or in the aggregate) by one or more legal entities or natural persons targeted by the UN, EU, UK, or US economic or financial sanctions (including but not limited to asset freeze measures).  If the Vendor’s ownership or control were to change during the term of the Purchase Order such that the foregoing representation is no longer accurate, the Vendor shall notify QTS within 3 London banking days to enable QTS’s compliance with applicable sanctions laws and regulations.  In case of such change in the Vendor’s ownership or control, QTS may terminate the Agreement.
10. Insurance.
    1. Required Coverages. Vendor shall keep in full force and effect during the Term of the Purchase Order (i) general liability insurance with limits not less than £2,500,000 per occurrence, and £5,000,000 aggregate (or equivalent coverage under any combination of primary, excess and/or umbrella policies) for bodily injury and property damage, and including products and completed operations coverage, personal and advertising injury coverage, standard insured contracts coverage, and broad form property damage liability coverage; (ii) automobile liability insurance on a combined single limit basis of not less than £1,000,000 per accident and aggregate for all owned, non-owned, and hired vehicles; (iii) workers’ compensation insurance covering Vendor’s employees and anyone for whom Vendor may be liable for workers’ compensation claims in an amount not less than that required by law and employer’s liability insurance of £1,000,000 for bodily injury by accident and by disease, per employee and in the aggregate; (iv) professional liability (errors and omissions) coverage of at least £3,000,000 per claim and in the aggregate, which shall be maintained for at least two (2) years after completion of the services specified herein, shall be endorsed to provide contractual liability coverage if such coverage is not otherwise included in the policy form, and shall not have a deductible or a self-insured retention in excess of £25,000 or contain unusual exclusions or unreasonably low limits; and (v) if Vendor is providing technology services or products and is exposed to sensitive data, Vendor shall maintain a minimum of £5,000,000 per claim or occurrence, and £10,000,000 aggregate for network security liability, privacy breach liability, privacy regulatory liability, and breach notification expenses. 
    2. General Requirements. All policies, with the exception of workers’ compensation, shall identify QTS (and its officers, directors, employees, parent, subsidiaries, affiliates and related companies, successors and permitted assigns (“QTS Parties”)) as additional insureds for all ongoing and completed operations, require that QTS receive at least 30 days’ prior written notice before cancellation or termination and 10 days’ prior written notice for non-payment of premium and, except where prohibited by law, waive all claims and rights of recovery by subrogation against QTS Parties in connection with any liability or damage covered by the policy.  If Vendor maintains a separate product liability policy, Vendor shall add QTS and the QTS Parties as additional insureds for all ongoing and completed operations, with the same notice of cancellation and waiver of subrogation provisions or endorsements required herein.  All policies insuring QTS and the QTS Parties as additional insureds shall contain severability of insureds provisions and shall specify that Vendor’s policy is primary and non-contributory with any insurance maintained by QTS.  If any such policy provides limits greater than that required in this Section 10, QTS and the QTS Parties shall be entitled to such greater limits.  All policies required by this Section 10 shall be written by insurance carriers licensed and/or authorized in the jurisdiction in which any Services are being performed and maintained with financially sound and reputable insurers with financial strength ratings of no less than A- and financial size ratings of no less than VIII by A.M. Best.  Upon request, Vendor shall deliver to QTS the applicable certificates of insurance naming QTS as a certificate holder, and, where applicable, showing QTS as an additional insured, addressed to the QTS as set out in the Purchase Order.  In addition, within 10 London banking days of request by QTS, Vendor shall deliver the declarations pages, schedules, additional insured endorsements, notice of cancellation and waiver of subrogation endorsements, as applicable, for any policies described herein.  Vendor shall provide immediate notice to QTS by email at [email protected] of any material change (including reduction in coverage) in or cancellation or termination of any insurance policy required herein.  The insolvency or failure of any insurance company to pay any claim shall not affect, negate or waive any provisions of these General Terms, including Vendor’s indemnity obligations to QTS and the QTS Parties.  Any failure by QTS to demand evidence of full compliance with these insurance requirements, or to identify a deficiency from evidence that is provided, shall not be construed as a waiver of Vendor’s obligation to maintain such insurance.
11. Confidentiality; Privacy and Data Security.
    1. Confidentiality. Each party hereby agrees that during the Term and at all times thereafter it shall keep confidential the other party’s Confidential Information and Data and shall not use, except in connection with its performance under these General Terms, commercialize or disclose the other party’s Confidential Information or Data to any person or entity other than its own Personnel, attorneys, accountants and consultants, and then only on a need-to-know basis.  Each party shall use at least the same degree of care in safeguarding the other party’s Confidential Information and Data as it uses in safeguarding its own Confidential Information and Data, but in no event shall a party use less than reasonable diligence and care.  Notwithstanding the foregoing, each party may disclose Confidential Information and Data pursuant to a requirement or request of a governmental or court or in defense of any claims or causes of action asserted against it, provided that it shall use commercially reasonable efforts to: (i) first notify the other party of such request or requirement or use, unless such notice is prohibited by law; (ii) attempt to obtain the other party’s consent to such disclosure; and (iii) in the event consent is not given, agree to allow the disclosing party to file a motion to quash, for a protective order, or other similar procedural steps to keep the information confidential.  Nothing herein shall require either party to fail to honor a subpoena, court or administrative order or requirement on a timely basis.  Each party shall cooperate with the other in an effort to limit the nature and scope of any required disclosure of Confidential Information or Data.  Promptly after written request from the Disclosing Party, the Recipient shall return or destroy the Confidential Information of the Disclosing Party and confirm in writing that all Confidential Information in its possession (including all copies, reproductions and excerpts thereof) have been returned or destroyed.  Notwithstanding the foregoing, Recipient and its representatives may retain copies of the Confidential Information, which are automatically backed up pursuant to reasonable and customary document retention policies and procedures or which are required by law or regulation.  A breach of this Section 11.1 shall give rise to irreparable injury to the non-breaching party for which damages may not be adequate compensation, and consequently, the other party shall be entitled, in addition to all other remedies available to it at law or equity, to injunctive relief without posting a bond or other security and other equitable relief to prevent a breach of this Section 11.1 and to secure the specific performance of such Sections.  The provisions of this Section 11.1 shall survive for a period of 10 years following termination, cancellation, completion or expiration of the Purchase Order (except for any longer period that any trade secret remains a trade secret).
    2. Privacy and Data Security
       1. Vendor shall comply with applicable international and local laws and industry standards relating to the privacy, confidentiality, data protection and security of Data, including but not limited to the laws of any jurisdiction from which the Data originates, the standard contractual clauses for the transfer of personal data to third countries (the “Standard Contractual Clauses”) and the UK International Data Transfer Addendum thereto, issued by the relevant authorities in the United Kingdom and/or European Union (where applicable), the General Data Protection Regulation 2016/679 (the “GDPR”) and the GDPR as incorporated into the laws of the United Kingdom pursuant to the European Union (Withdrawal) Act 2018, as amended (the “UK GDPR”), the UK Data Protection Act 2018, and the Privacy and Electronic Communications (EC Directive) Regulations 2003, in each case as supplemented, updated, or replaced from time to time (“Applicable Privacy Laws”).  In addition, Vendor shall comply with the terms and conditions of QTS’s Data Protection Addendum (“DPA”) located at https://www.qtsdatacenters.com/company/legal/dpa, which may be updated by QTS from time to time.  If the annexes to the DPA apply, Vendor shall complete and provide them to QTS prior to performing work.
       2. Vendor shall establish and maintain an information security program designed to: (i) ensure the security and confidentiality of QTS’ and its customers’ Confidential Information and Data, (ii) protect against any anticipated threats or hazards to the security or integrity of, or unauthorized access to or use of, QTS’ and its customers’ Confidential Information and Data, (iii) ensure the proper disposal of QTS’ and its customers’ Confidential Information and Data, and (v) sets forth Vendor’s policy for responding to any Security Incident. Upon request by QTS, Vendor shall provide copies of Vendor’s information security program and any related audits promptly following completion thereof. If Vendor receives a SOC2 Type II report that includes an audit of the security program implemented in accordance with this Section 11.2, Vendor shall provide QTS with a copy of such report. 
       3. Vendor shall notify QTS of any Security Incident no later than 48 hours after learning of the Security Incident. Vendor shall cooperate in good faith with QTS to remedy or mitigate the impact of any Security Incident.  In particular, (i) all information relating to each Security Incident shall be retained by Vendor until QTS has specifically consented in writing to its destruction, (ii) Vendor shall consult with QTS on the content of any Mandated Communications, (iii) except for Mandated Communications, the content of any external filings, communications, notices, press releases or reports to be issued by Vendor related to any Security Incident must be reviewed and reasonably approved by QTS prior to any publication or communication thereof, and (iv) if requested by QTS and subject to QTS’ confidentiality obligations, Vendor shall permit QTS and its agents to access Vendor’s facilities and/or the affected hardware or software, as applicable, to conduct a forensic analysis of each such Security Incident.
       4. If Vendor has access to, or otherwise stores, processes or transmits cardholder data or sensitive authentication data, or assists in managing the cardholder data environment on behalf of QTS, Vendor has, as of the Effective Date, complied with all applicable requirements to be considered PCI DSS compliant and has performed the necessary steps to validate its compliance with Applicable Privacy Laws, the PCI DSS and this Section 11. Vendor shall maintain PCI DSS compliance during the Term and securing all cardholder data in accordance with PCI DSS and this Section 11.   
       5. Vendor shall establish and maintain a Business Continuity Plan addressing testing, control functions, accountability and corrective actions to be immediately implemented, as necessary, and invoke such plan when necessary. The Business Continuity Plan shall include, but not be limited to, recovery strategy supported in appropriate geographic locations, documented recovery plans covering all areas of operation necessary to deliver or receive the Services, vital records protection and testing plans, and the identification of alternative service providers in given markets.  Vendor’s Business Continuity Plan shall provide, without limitation and as applicable, for alternative means of transmitting and processing data, off-site back-up of critical data files, program information, software, documentation, forms and supplies.  Vendor’s Business Continuity Plan shall provide for recovery after both short- and long-term disruptions in facilities, environmental support and data processing equipment.  Although short term disruptions may be protected through workarounds, redundant resources and network diversity, the long-term strategy set forth in Vendor’s Business Continuity Plan also must address contingency plans for the total destruction of, or such party’s inability to conduct its business operations for a period of 30 calendar days or longer.  Vendor shall review and test its Business Continuity Plan at least once a year.  If requested by QTS, Vendor shall provide a summary of the results of its business continuity tests.
       6. Vendor shall encrypt QTS’s and its customers’ Confidential Information and Data, both at rest and in transit, via a solution that meets the requirements set forth in the Applicable Privacy Laws and industry best practices. Vendor shall not access, store, or transfer QTS’s or its customers’ Confidential Information and Data to or in any jurisdiction other than the United Kingdom without QTS’ prior written consent and then only in accordance with the Applicable Privacy Laws. 
       7. A breach of this Section 11.2 shall give rise to irreparable injury to the non-breaching party for which damages may not be adequate compensation, and consequently, the other party shall be entitled, in addition to all other remedies available to it at law or equity, to injunctive relief without posting a bond or other security and other equitable relief to prevent a breach of this Section 11.2 and to secure the specific performance of such sections.
12. Assignment, Subcontracting, Enforceability. These General Terms shall inure to the benefit of QTS and Vendor, respectively, and their successors, assigns and legal representatives.  Vendor may not assign the Purchase Order under these General Terms (including in conjunction with a merger, consolidation or sale of substantially all of the assets to which these General Terms pertain) without the prior written consent of QTS.  However, Vendor may assign the Purchase Order to an affiliate if Vendor remains fully obligated under these General Terms and the Purchase Order and such affiliate is not a competitor of QTS.  Vendor may not subcontract or assign any portion of the Services or Equipment without the prior written consent of QTS.  Where QTS has provided such consent, Vendor shall remain fully liable for Services performed by and for the acts or omissions of any subcontractor, and Vendor shall require any subcontractor to comply with the applicable terms of these General Terms. 
13. Liens. Vendor is responsible for and shall timely pay its subcontractors, agents and employees and any other person entitled to assert a lien or claim arising out of the Services or Equipment.  Vendor hereby waives any and all rights to place any liens upon the Equipment or the subject property.  Vendor agrees to indemnify, defend (promptly and diligently, at Vendor’s sole expense with attorneys satisfactory to QTS) and hold harmless QTS against any mechanics’, materialmen’s, broker’s or similar liens which may be filed against the Equipment or any property of or leased by QTS by Vendor, its subcontractors or any other party claiming by or through Vendor or its subcontractors, and any claims that may give rise thereto, and Vendor shall promptly remove any liens that are filed by any of its sub-suppliers or sub-contractor. 
14. Intellectual Property Rights. All QTS IP is and shall remain the property of QTS.  QTS shall own all modifications, improvements and derivative works in QTS IP or whether made by QTS or by Vendor or Vendor Personnel.  Vendor agrees to assign and hereby assigns all such modifications, improvements and derivative works to QTS.  Upon request by QTS, Vendor shall (a) promptly provide to QTS, in the format and on the media requested by QTS, a copy of all or any part of the QTS IP, (b) promptly return to QTS, in the format and on the media requested by QTS, all or any part of the QTS IP, and (c) erase or destroy all or any part of the QTS IP in Vendor’s possession, in each case to the extent so requested by QTS.  Except as otherwise set forth herein, all Vendor IP is, or shall be, and shall remain the property of Vendor.  Unless otherwise provided herein, QTS shall own any modifications, enhancements or derivations of Vendor IP, developed, in whole or in part, pursuant to the Purchase Order by or on behalf of Vendor or Vendor Personnel.  Vendor agrees that any and all work product shall be the sole and exclusive property of QTS.  Vendor hereby irrevocably assigns to QTS all right, title and interest worldwide in and to any Deliverables created under the Purchase Order, and to any ideas, concepts, processes, discoveries, developments, formulae, information, materials, improvements, designs, artwork, content, software programs, other copyrightable works, and any other work product created, conceived or developed by Vendor (whether alone or jointly with others) for QTS during the term of the Purchase Order, including all copyrights, patents, trademarks, trade secrets, and other intellectual property rights therein (the “Work Product”).  Vendor retains no rights to use the Work Product and agrees not to challenge the validity of QTS’ ownership of the Work Product
15. Audit and Reporting. QTS may conduct any audit or assessments of the Vendor’s activities, records or performance to ensure compliance with the terms of these General Terms.  Vendor shall maintain all project records and Deliverables for a period of not less than 5 years following performance under the Purchase Order and permit QTS reasonable access to such materials and all locations where work is performed in connection with the Services or Equipment.  To the extent permitted by applicable law, Vendor shall provide prompt notification of financial difficulty, catastrophic events, significant incidents such as information breaches, data loss, service or system interruptions, compliance lapses, enforcement actions or other regulatory action that could affect the activities impacting performance by Vendor under the Purchase Order.  
16. Force Majeure. Neither party shall be liable to the other for any failure of performance due to acts of God, fire, explosion; governmental order; civil unrest; wars or any other similar cause beyond the reasonable control of the party obligated to perform hereunder (“Force Majeure Event”).  The party claiming the Force Majeure Event must continuously use best efforts to avoid, mitigate or remove the extent of the delay and causes of non-performance and resume performance promptly after all such causes have been eliminated.  To the extent that the Vendor is unable to perform under the Purchase Order due to a Force Majeure Event, QTS shall not be obligated to pay for such Services or Equipment, and if Vendor is unable to provide the Equipment or perform the Services for seven consecutive days, QTS may immediately terminate the Purchase Order, in whole or in part.  Vendor’s economic hardship or inability to pay its obligations to third parties shall not constitute a Force Majeure Event.  If a Force Majeure Event compels Vendor to allocate production and delivery of Equipment and provision of Services, Vendor must, at a minimum, provide QTS the same quantity as a percentage of uninterrupted supply of Equipment or Services as the Vendor is able to produce, and any such business disruption shall not excuse Vendor from its performance obligations under the Purchase Order.  
17. Marketing. Vendor may not use QTS’ name, logo, trademark, or other representation of QTS in any marketing, advertising, press release, website, or other communication without QTS’ prior written consent, which may be withheld at QTS’ sole discretion.
18. Notices. Any notice or communication required or permitted to be given under the Purchase Order may be delivered by hand, deposited with an overnight courier, sent by e-mail (provided delivery is confirmed), or regular mail registered or certified return receipt requested and postage prepaid, in each case to the address set forth below or to such other address as may hereafter be furnished in writing by either party to the other party in accordance with this Section 19.  Any notice sent in physical form must also be sent concurrently by email.  Such notice shall be deemed to have been given as of the date it is received.  Notice to QTS will be addressed to QTS’ address as set out in the Purchase Order; [email protected].  Notice to Vendor shall be addressed to the address included in the Purchase Order.
19. Miscellaneous. These General Terms shall be governed by and construed in accordance with the laws of England and Wales, excluding conflict of law rules. All disputes arising in connection with or relating to the Agreement, or further agreements resulting therefrom, shall be finally settled in accordance with the Rules of Arbitration of the International Chamber of Commerce (“ICC”) by three arbitrators. The claimant(s) shall nominate one arbitrator in the request for arbitration. The respondent(s) shall nominate one arbitrator in answer to the request. The two party nominated arbitrators shall then have 30 days to agree, in consultation with the parties to the arbitration, upon the nomination of a third arbitrator to act as president of the tribunal, barring which the ICC Court shall select the third arbitrator (or any arbitrator that the claimant(s) or respondent(s) shall fail to nominate in accordance with the foregoing). The proceedings shall be conducted in the English language. The seat of arbitration shall be London, United Kingdom.   These General Terms constitute the entire understanding and agreement of the parties related to the subject matter hereof and supersede and replace any and all prior or contemporaneous discussions, agreements and understandings regarding such subject matter.  Any additional or different terms and conditions in any invoice, quote, proposal or other response made by Vendor are deemed objected to by QTS without need of further notice of objection and are of no effect or in any way binding upon QTS.  The provisions of these General Terms, and the rights and obligations created hereunder or thereunder, are for the sole benefit of QTS and Vendor and do not create any right, claim or benefit on the part of any person not a party thereto.  The parties do not intend any provision of these General Terms to be enforceable by or for the benefit of any third party, save for the Indemnified Parties.  The failure by either party to enforce any such rights shall not constitute a waiver of such right(s) or of any other or further rights hereunder or thereunder.  The waiver of any breach or default of these General Terms shall not constitute a waiver of any subsequent breach or default.  QTS and Vendor are independent contractors, and these General Terms shall not establish any relationship of partnership, employment, franchise or agency.  If any provision of these General Terms is unenforceable, the other provisions shall remain enforceable.  The terms and provisions of these General Terms that by their sense and context are intended to survive performance by the parties shall so survive termination, cancellation, completion or expiration of these General Terms (for example, without limitation, provisions for payments, representations and warranties, indemnification, limitation of liability, confidentiality, intellectual property and governing law shall survive). These General Terms may be changed only by a formal, written amendment to them signed by authorized representatives of QTS and Vendor (without prejudice to the supremacy of the Purchase Order as against these General Terms).  In the event of any litigation concerning the rights or obligations of the parties of the Purchase Order, the prevailing party shall be entitled to recover reasonable attorneys’ fees and court costs.
20. Definitions.
    1. “Business Continuity Plan” means contingency plans, recovery plans and proper risk controls to ensure Vendor’s continued performance under the Purchase Order at all times.
    2. “Confidential Information” means information (regardless of how disclosed or learned) that (i) derives actual or potential economic value from not being generally known to, and not available through proper means, by other persons who could obtain economic value from receipt or use of such information, (ii) is the subject of reasonable efforts by its owner to maintain its confidentiality or secrecy, or (iii) is by its nature confidential (or could reasonably be expected to be confidential), trade secrets or otherwise proprietary to its owner. Confidential Information includes the terms and conditions of these General Terms (including, for the avoidance of doubt, the Purchase Order), confidential information of any QTS Customer, software source and object code, trade secrets, inventions, know-how, research and developments, data of any type and in any format, including Personal Data, data, formula, patterns, compilations, programs, devices, methods, techniques, drawings, configurations, plans, pricing, processes, financial and business plans and strategies, names of actual or potential customers or Vendors, data center configuration and technology. 
    3. “Data” means any QTS or QTS Customers’ Protected Health Information, Personal Data (also known as Personally Identifiable Information), or “Card Holder Data” (as defined in the Payment Card Industry Data Security Standards (“PCI DSS”)), or a combination thereof.
    4. “Deliverable” means any work product, or any tangible or intangible good or service as set forth in the Purchase Order that must be provided upon completion of Vendor’s performance.
    5. “Disclosing Party” means the party disclosing Confidential Information or Data.
    6. “Equipment” means the equipment, goods and component parts thereof set forth in a Purchase Order to be provided by Vendor.
    7. “Mandated Communications” means any external filings, communication, notices, press releases or reports required to be issued by Vendor pursuant to applicable law, rule or regulations.
    8. “Personal Data” means social security number or other identification number, date of birth, personal contact information or any other information that relates to an identifiable natural person or could be used to identify a natural person or to access an account of a natural person, or which otherwise constitutes “personal data”, “personal information”, “personally identifiable information” or any other equivalent term under Applicable Privacy Laws.
    9. “Property” means the property where Services are performed.
    10. “QTS Affiliate” means any person or entity directly or indirectly controlling, controlled by, or under common control with QTS, and for this purpose, “control,” “controlling,” and “controlled by” means the ownership and control of more than fifty percent (50%) of the outstanding voting securities or interest in capital or profits of any person or entity or the right to direct or control the management or affairs of any person or entity by contract or similar arrangement. Should a QTS divest a QTS Affiliate or should QTS Affiliate cease to satisfy this definition, all existing Purchase Orders with such divested QTS Affiliate will remain in effect; however, the divested QTS Affiliate will no longer be authorized to initiate new Purchase Orders under these General Terms. 
    11. “QTS Customer” means any customer of QTS or a QTS Affiliate.
    12. “QTS IP” means all data, information, intellectual property or other work product (a) submitted to Vendor or Vendor Personnel by or on behalf of QTS, or (b) to which Vendor or Vendor Personnel have access in connection with its performance under the Purchase Order, including but not limited to Deliverables. QTS IP includes third party data provided by QTS to Vendor or Vendor Personnel.
    13. “QTS Personnel” means the employees, directors, officers, agents, contractors, subcontractors and representatives of QTS and its affiliates, other than Vendor and Vendor Personnel.
    14. “Recipient” means the party receiving Confidential Information or Data.
    15. “Security Incident” means (i) the known, or suspected security breach, or unauthorized destruction, loss, alteration of or access to QTS’ Confidential Information, QTS Customers’ Confidential Information, or Data, or (ii) any breach or potential breach of Vendor’s information security program.
    16. “Services” means services set forth in a Purchase Order to be performed by Vendor.
    17. “Vendor IP” means the intellectual property used in connection with performance under the Purchase Order that is (a) owned, acquired or developed by Vendor independent of QTS or (b) licensed, leased or otherwise obtained by Vendor from a third party (other than QTS or QTS Personnel).
    18. “Vendor Personnel” means any employee, director, officer, agent, contractor, subcontractor or representative of Vendor.