RF360 Singapore Terms and Conditions of Purchase
UNLESS EXPRESSLY SUPERSEDED IN WRITING, THESE TERMS APPLY TO ALL PURCHASE ORDERS
ISSUED BY RF360 SINGAPORE PTE. LTD.
AGREEMENT. These terms and conditions (“Terms and Conditions”) shall apply to any purchase order (“P.O.”) issued by RF360 Singapore Pte. Ltd. or by any of its subsidiaries (the “Buyer”) to purchase the goods (“Goods”) and/or services
DELIVERY; TITLE AND RISK OF LOSS. Shipment of Goods and performance of the Services (“Delivery”) shall be in accordance with the dates set forth in the P.O. If it becomes apparent that Seller cannot meet such dates and no adequate reschedule date(s) or resolution plan has been offered by the Seller to Buyer, Buyer retains the right to terminate the Agreement effective immediately without penalty or further obligation.
ACCEPTANCE. Unless otherwise stipulated in the P.O., acceptance of the Goods and/or Services by Buyer (“Acceptance”) shall be thirty (30) calendar days from date of Buyer’s receipt of Goods or completion of Services except in the case where Buyer requires (as specified in the P.O. or otherwise) that such Services and/or Goods must pass one (1) or more acceptance test plans, in which case Acceptance shall occur on date on which Buyer confirms in writing (email is acceptance) to Supplier that said Goods and/or Services have successfully passed the applicable acceptance test plans. At Buyer’s option, Buyer may (i) return non-conforming Goods to Seller at Seller’s expense and Seller shall be required to repair or replace such Goods and/or reperform the non-conforming Services; (ii) modify or adapt non-conforming Goods and/or Services to render such acceptable; (ii) modify or adapt non-conforming Goods and/or Services to render such acceptable; or (iii) return non-conforming Goods or reject non-conforming Services for a full refund. If Buyer elects to reject non-conforming Goods, Seller shall authorize a return for all non-conforming Goods within twenty-four (24) hours after Buyer’s request, and such non-conforming Goods shall then, where title had passed to the Buyer, be the property of Seller. If Buyer elects to modify or adapt non-conforming Goods or Services, Buyer may offset all costs incurred in performing any such modifications and adaptations against any and all amounts otherwise due to Seller or, at Buyer’s option, may bill Seller directly for such costs.
INVOICE/PAYMENT. Unless stated otherwise in the P.O., all invoices must reference the P.O. number and shall be sent to the attention of the Buyer’s Accounts Payable Department via address and/or email provided for in the P.O. If no such address or email is provided, said invoices shall be sent by the Seller to the Buyer via mail (either certified or registered) or courier service to RF360 Singapore Pte. Ltd., 166 Kallang Way, Singapore 349249, Attn: Accounts Payable Department. Buyer shall pay for the Goods and/or Services within sixty (60) calendar days following both Buyer’s Acceptance of the Goods and/or Services and receipt of Seller’s undisputed invoice, whichever is later. All payments will be made electronically (i.e. EFT, ACH or Wire).
TAXES. All prices are exclusive of sales tax, use tax, withholding tax, duties, and any other taxes or similar levies imposed by any government authority. All amounts due to the Seller shall be paid without deduction for any levies or charges of any nature which may be imposed. In the event that any sales, use, consumption, value-added, gross receipts, excise, or similar taxes or surcharges (“Transactional Tax(es)”) are applicable to any of the transactions contemplated by the Agreement, Buyer will be solely responsible for any and all applicable Transactional Taxes, excluding Seller’s income taxes. Seller acknowledges that it is the Seller's sole and exclusive responsibility to pay any applicable Transactional Taxes under the Agreement that may be imposed on the Seller by any governmental authority under any tax law. At the request of Buyer, Seller will provide documentation reasonably satisfactory to Buyer evidencing payment of such Transactional Taxes by the Seller to the applicable taxing authority. To the extent that any Transactional Taxes are required by law to be collected by the Seller, Buyer shall be responsible for payment of such Transactional Taxes whether concurrently invoiced with the original invoiced amount or subsequently invoiced based on a review of the facts affecting Buyer’s tax status or a determination that the laws of the applicable state(s) require assessment and collection of such Transactional Tax. If Transactional Taxes are concurrently invoiced with the original invoiced amount Transactional Taxes shall be separately itemized on the invoices to which they apply. To the extent Buyer is held liable by any governmental authority for Seller’s Transactional Taxes, Seller shall indemnify Buyer against all Transactional Taxes and other ancillary costs (including but not limited to legal costs) that may be imposed on Buyer.
Notwithstanding the foregoing, if Buyer is required by applicable law to withhold income taxes from any payment due Seller, then the amount due to Seller in respect to such payment shall be reduced by the amount of such income tax withholding; then Buyer will deliver to Seller an income tax withholding certificate or similar documentation reasonably satisfactory to Seller evidencing payment of any such income tax withholding. Upon receipt by Seller of the income tax withholding certificate, the portion of the invoice represented by the income tax withholding certificate will be deemed fully paid.
If Seller is a U.S. person or entity, Seller acknowledges and agrees that federal and California income withholding tax will apply to the total cost of services performed in the United States and California and may apply to other amounts payable by Buyer under the Agreement and Buyer may withhold such income taxes from payments due Seller, unless Seller provides proper certification that Seller is exempt from federal backup withholding and California income tax withholding (e.g. Form W-9 and California Form 590). Upon issuance of one (1) or more P.O.s and as requested by Buyer from time to time, Seller will provide Buyer: (A) a copy of Seller’s W-9 “Request for Taxpayer Identification Number and Certification” Form; (B) California Form 590 “Withholding Exemption Certificate”; (C) California Form 587 “Nonresident Withholding Allocation Worksheet” (if applicable) and (D) any and all documentation required to certify that Seller is a U.S. person or entity, the taxpayer identification provided is correct and that Seller is not subject to backup withholding.
If Seller is a non-U.S. person or entity Seller shall provide to Buyer all documentation (including, without limitation, the necessary income tax withholding application, form, or residency certificate) required for the application of any applicable double taxation agreement. Such documentation shall be delivered promptly after Buyer’s request and it shall be true, correct and complete as of the date of the delivery. If valid documentation is not provided, the federal statutory income tax withholding rate will be applied instead of the income tax withholding rate provided by the applicable double taxation agreement. Seller acknowledges that California income tax withholding will apply to services performed in the State of California unless Seller provides proper certification that it is exempt from California income tax withholding (e.g., Form 590 “Withholding Exemption Certificate”). If Seller is not exempt from California income tax withholding, Seller agrees to provide California Form 587 “Nonresident Withholding Allocation Worksheet”.
WARRANTIES; REPRESENTATIONS. For the period of the later of (a) thirty (30) months (unless otherwise stated in the P.O.) from Acceptance of the Goods delivered and Services provided under the Agreement, or (b) the time period provided for under the applicable law, Seller warrants that all Goods delivered and Services provided under the Agreement shall be free from defects in workmanship and material, and be fit for the purposes for which such Goods or Services are intended. Further, all Goods delivered and Services performed shall contain all new materials, shall strictly conform to the requirements stated in the Agreement and all other specifications furnished by Buyer, and shall conform to Seller’s specifications to the extent such specifications are consistent with those provided by Buyer. In addition to the warranties set forth above, Seller warrants that all Goods delivered and Services provided shall be free of any claim that such Goods or Services infringe any United States or foreign patent, copyright, trade secret, or other intellectual property right of any third party.
INDEMNIFICATION. Seller shall defend, indemnify and hold Buyer, its affiliates and each of their respective officers, directors, employees, affiliates, agents, and customers (each an “Indemnified Party”) harmless from and against any and all claims, losses, liabilities, damages, costs, and expenses (including attorneys’ fees) arising from or related to (i) any breach or alleged breach by Seller of the Agreement, including any representations and warranties made by Seller, (ii) any negligence, recklessness, willful or intentional act or omission of Seller or any of its employees, agents, representatives or subcontractors in the delivery of Goods or performance of Services (at Buyer’s facilities or elsewhere), and (iii) any payments or liabilities for which Seller is or becomes liable. If any third party asserts or initiates any claim or action against any Indemnified Party for which Seller is responsible for indemnification under this Section 7, Buyer will promptly notify Seller of such claim or action after it becomes aware, provided however Buyer’s failure to provide such notice thereof in a prompt manner to Seller shall not
DISCLAIMER AND LIMITATION OF LIABILITY. EXCEPT AS OTHERWISE EXPLICITLY SET FORTH IN THE
BUYER PROPERTY. All property used by Seller in connection with its performance under the Agreement which is owned, furnished, or consigned by Buyer, or is charged to or paid for by Buyer, including but not limited to materials, equipment, drawings, specifications and other technical documentation (the “Property”) shall be and remain the property of Buyer. All Property shall be used only for Seller’s performance under the Agreement and held at Seller’s risk and insured at Seller’s sole expense with loss payable to Buyer. Seller shall be responsible for any injury to any person (including death) or damage to property (including Buyer’s) arising out of use of such Property, whether or not such claim is based upon its condition or on the alleged negligence of Buyer in permitting its use. Buyer may inspect and/or remove any Property at any time at no charge to Buyer, and Buyer shall have reasonable access to Seller’s premises for such purpose. Seller shall return such Property to Buyer upon Buyer’s demand at Seller’s sole expense.
PROPRIETARY RIGHTS. Seller agrees to promptly disclose to Buyer and upon request to assign to Buyer, any (i) works of authorship, discoveries, inventions, and innovations conceived or first actually reduced to practice during the performance of the Agreement, or (ii) any proposals, research, records, reports, recommendations, manuals, findings, evaluations, forms, reviews, information, data, computer programs, and software originated or prepared by Seller for or in the performance of the Agreement, the items listed in clauses (i) and (ii) being hereinafter referred to collectively and severally as “Work Product”. Notwithstanding the above, this Section 10 is not intended to apply to those Agreement(s) for Services directly related to the Goods (e.g. maintenance, repair, upgrades). Seller and Buyer agree that any Work Product which is a work of authorship, including but not limited to any computer program or software, is a “work made for hire” within the meaning of 17 United States Code Section 101. Seller hereby assigns to Buyer all of Seller’s rights, title and interest in and to all Work Product, and to any and all intellectual property rights, including but not limited to, patents, copyrights or trademarks which have been or may be obtained with respect to such Work Product, effective immediately upon conception, origination, creation, preparation or discovery thereof and regardless of the medium of expression thereof. Notwithstanding anything to the contrary in the Agreement, nothing in the Agreement shall be deemed to grant any rights (whether express, or by way of implication, estoppel or otherwise) under any patents, patent applications, or inventions of Buyer.
SUBCONTRACTORS. Prior to the utilization of subcontractors, Seller shall first obtain prior written consent from Buyer and ensure that all subcontractors execute written agreements with Seller containing provisions necessary to comply with the terms of the Agreement. Seller shall at all times be responsible for the acts and omissions of subcontractors and personnel directly or indirectly employed by them and the performance of all the Services, whether performed by Seller or its subcontractors. The Agreement shall not give rise to any contractual relationship between Buyer and a subcontractor to Seller. Seller shall indemnify Buyer and hold Buyer harmless against all losses, damages, expenses and costs incurred or suffered by Buyer directly or indirectly attributable to any act or omission on the part of any subcontractor.
CONFIDENTIALITY; PUBLICITY. Unless a valid non-disclosure agreement exists between the Parties, in which case the terms of that non-disclosure agreement shall apply, the following terms shall apply (subject to Section 24 (COMPLIANCE WITH PRIVACY LAWS AND DATA SECURITY) below): Except as necessary for its performance under the Agreement, Seller shall not disclose to any person (including but not limited to any company affiliated with Seller and any subcontractor of Seller), reproduce, or use any information furnished by Buyer under the Agreement (whether or not marked as confidential or proprietary), including the terms and existence of the Agreement; and at Buyer’s request, Seller shall return all such information to Buyer. Further, Seller shall not make use of any Buyer trademark, trade name or logo, including but not limited to any news release, advertisement, publicity, or promotional material regarding the Agreement or Seller’s relationship with Buyer, without Buyer’s prior written consent.
CHANGES. From time to time during the term of the Agreement, either Party may submit to the other Party a written request for a change order (a “Change Order”). Neither Party shall be obligated by any Change Order unless agreed in writing by both Parties. Seller expressly waives any compensation for any change not authorized in writing by Buyer.
EXPORT COMPLIANCE ASSURANCE. Seller acknowledges that all hardware, software, source code and technology (collectively, "Buyer Provided Products") obtained from Buyer are subject to the US government export control and economic sanctions laws, orders, and regulations, including without limitation the Export Administration Regulations ("EAR", 15 CFR 730 et seq., http://www.bis.doc.gov/) administered by the Department of Commerce, Bureau of Industry and Security, and the Foreign Asset Control Regulations (31 CFR 500 et seq., http://www.treas.gov/offices/enforcement/ofac/) administered by the Department of Treasury, Office of Foreign Assets Control ("OFAC"). Seller shall not take any action relating to the Buyer Provided Products that causes Buyer to violate any such laws, orders, or regulations.
OZONE-DEPLETING CHEMICALS USAGE CERTIFICATION. Seller, whether a manufacturer, importer, wholesaler, distributor, or retailer, is required to reliably and accurately label consistent with the requirements of 40 CFR part 82, (i) all containers in which a class I or class II substance is stored or transported, (ii) all products containing a class I substance and (iii) all products directly manufactured with a process that uses a class I substance, unless the product was manufactured prior to May 15, 1993.
ASSIGNMENT. Seller may not assign any of its rights or delegate any of its obligations under the Agreement without prior written consent of Buyer.
|18.||INSURANCE. Seller shall maintain at its sole expense during the term of the Agreement: (i) workers' compensation insurance as prescribed by applicable law; (ii) employer's liability insurance with limits of at least $1,000,000 for each occurrence; (iii) automobile liability insurance if the use of motor vehicles is required, with limits of at least $1,000,000 combined single limit for bodily injury and property damage per occurrence; (iv) Commercial General Liability (“CGL”) insurance, including Blanket Contractual Liability and Broad Form Property Damage, with limits of at least $1,000,000 combined single limit for bodily injury and property damage per occurrence; $2,000,000 in the annual aggregate; and (v) in the event that Seller's employee(s) or subcontractor(s) are on Buyer’s premises or have access to Buyer’s property, a fidelity bond (which includes third party liability) insuring against the dishonest act(s) committed by its employees assigned to Buyer’s premises under the Agreement. Seller shall maintain such fidelity bond in the amount of not less than $1,000,000. Seller shall have all CGL policies and automobile liability insurance policies if driving on Buyer’s premises, endorsed to name Buyer as an additional insured. All insurance as listed above shall be primary with respect to Seller’s activities and Buyer’s insurance policies will be non-contributing. Such policies shall contain a provision waiving the insurer’s right of subrogation against Buyer. Prior to the commencement of any services, Seller will furnish Buyer with certificates of insurance which evidence the minimum levels of insurance set forth above. Buyer shall be notified in writing at least thirty (30) calendar days prior to cancellation of or any material change in the policy. Insurance companies providing coverage under the Agreement must be rated by A-M Best with at least an A- VII rating.|
APPLICABLE LAW; DISPUTE RESOLUTION. The Agreement shall be governed by the laws of the State of California, USA, without regard to conflict of laws principles. Any dispute, claim, or controversy arising from or relating to the Agreement or the breach or validity hereof (each, a “Dispute”) will be finally settled by a confidential arbitration proceeding conducted in accordance with the Rules of Arbitration of the International Chamber of Commerce (“ICC Rules”). The place of arbitration will be Singapore. The language of the arbitration will be English. Except as may be required by law, neither Party may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both Parties. The arbitrator’s award will be final and binding on the Parties. The Parties agree that judgment may be entered upon such an award in any court of competent jurisdiction. Seller, on behalf of itself and its affiliates, also acknowledges and agrees that (i) no Seller affiliate is a third party beneficiary of the Agreement, (ii) no Seller affiliate shall have any standing to initiate any claim or cause of action under the Agreement, (iii) any and all claims against Buyer which may arise under the Agreement shall be brought solely and exclusively by Seller and (iv) the U.N. Convention on Contracts for the International Sale of Goods shall not apply to the purchase of Goods or Services by Buyer. Furthermore, in the event of any proceeding to enforce the provisions of the Agreement or to resolve any Dispute arising from or related to the Agreement, the prevailing Party (as determined by the arbitrator) shall be entitled to reasonable attorneys' fees as fixed by the arbitrator.
COMPLIANCE. Seller agrees that it will comply, and that all Goods delivered and Services performed hereunder will comply, with all applicable laws, regulations, and permit requirements including but not limited to labor, safety and environmental laws.
OPEN SOURCE. Seller hereby agrees, and shall cause its affiliates and subcontractors to agree, not to incorporate, link, distribute or use any third party software or code in conjunction with any Work Product, Goods or deliverable provided to Buyer under the Agreement (if any) in such a way that: (i) creates, purports to create, or has the potential to create, obligations with respect to any Buyer software, including without limitation the distribution or disclosure of any source code; or (ii) grants, purports to grant, or has the potential to grant to any third party any rights to or immunities under any Buyer intellectual property or proprietary rights. Without limiting the generality of the foregoing, neither Seller nor any of its affiliates or subcontractors shall incorporate, link, distribute or use, in conjunction with the Work Product, Goods or any deliverable provided to Buyer, any code or software licensed under any open source license in any manner that could cause or could be interpreted or asserted to cause any Buyer software (or any modification thereto) to become subject to the terms of any such open source license.
Without limiting the generality of the forgoing, neither Seller nor any of its affiliates or subcontractors shall use any software or technology in a manner that will cause any patents, copyrights, or other intellectual property which are owned or controlled by Buyer or any of its affiliates (or for which Buyer or any of its affiliates has received license rights) to become subject to any encumbrance or terms and conditions of any third party or open source license. These restrictions, limitations, exclusions and conditions shall apply even if Buyer or any of its affiliates becomes aware of or fails to act in a manner to address any violation or failure to comply therewith. No act by Buyer or any of its affiliates that is undertaken under the Agreement shall be construed as being inconsistent with the intent to not cause any patents, copyrights or other intellectual property that are owned or controlled by Buyer or any of its affiliates (or for which Buyer or any of its affiliates has received license rights) to become subject to any encumbrance or terms and conditions of any open source license.
Upon request, Seller shall provide information regarding its use of Open Source Software (as defined below). Seller represents and warrants that any list/declaration/information provided by Seller regarding the Open Source Software included in the Work Product is complete and accurate. “Open Source Software” means any software, libraries, or other code (including without limitation middleware and firmware) that is characterized as freeware, share, or open source software. Without limiting the generality of the foregoing, Open Source Software includes any software made available under an open source license.
SUPPLIER CODE OF CONDUCT. As a member of the Electronic Industry Citizenship Coalition (“EICC”), Buyer expects Seller to act in accordance with all elements of the EICC’s Code of Conduct, in its current version, and permit Buyer or its authorized representatives to conduct an audit of Seller and any of its suppliers or subcontractors. Seller shall ensure that its employees, agents and sub-contractors understand and comply with the EICC Code of Conduct. Information on the EICC’s Code of Conduct is found at www.eiccoalition.org/standards/code-of-conduct/.
COMPLIANCE WITH ANTI-CORRUPTION LAWS. Seller represents and warrants to Buyer that, in connection with the transactions contemplated by the Agreement or in connection with any other business transactions involving Buyer, Seller, and everyone acting on its behalf, will comply with and will not violate any anti-corruption law or international anti-corruption standards, including but not limited to the U.S. Foreign Corrupt Practices Act, in connection with the supply of Goods or Services it has agreed to perform under the Agreement. Seller represents and warrants to Buyer that Seller has not, and covenants and agrees that it will not, in connection with the transactions contemplated by the Agreement or in connection with any other business transactions involving Buyer, make, promise, or offer to make any payment or transfer anything of value, directly, or indirectly, to any individual to secure an improper advantage. It is the intent of the Parties that no payments or transfer of value shall be made which have the purpose or effect of public or commercial bribery, acceptance of or acquiescence in extortion, kickbacks, or other unlawful or improper means of obtaining or retaining business.
COMPLIANCE WITH PRIVACY LAWS AND DATA SECURITY.
(b) Processing of Personal Information:
(c) Security Requirements:
At Buyer’s request, at any time and at Buyer’s discretion, Seller, and any third parties to whom Seller has transferred or made available Data in accordance with this Section 24, shall return or provide copies of requested Data to Buyer in such form as requested by Buyer or comply with the requirements listed above to purge the Data.
|25.||DEBARMENT, SUSPENSION, AND INELIGIBILITY. Seller certifies that it is not debarred, suspended, or roposed for debarment by the United States Federal Government. Seller agrees to notify Buyer immediately if at any time the Seller becomes debarred, suspended, or proposed for debarment by the United States Federal Government.|
Standard Terms and Condition; Revision 1 dated 06-23-17