1. Applicability. (a) This purchase order is an offer by Sourceability. (hereinafter defined) for the purchase of the goods specified on the face of this purchase order (the Goods) from the party to whom the purchase order is addressed (the Seller) in accordance with and subject to these terms and conditions (the Terms, and together with the terms and conditions on the face of the purchase order, this Order). This Order, together with any documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to this Order, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of this Order. No course of dealing or usage of the trade shall be applicable unless expressly incorporated in this Order. This Order expressly limits Seller’s acceptance to the terms of this Order, including without limitation the Terms. These Terms prevail over any terms or conditions contained in any other documentation and expressly exclude any of Seller’s general terms and conditions of sale or any other document issued by Seller in connection with this Order. (b) These Terms apply to any repaired or replacement Goods provided by Seller hereunder. (c) Sourceability is not obligated to any minimum purchase or future purchase obligations under this Order. (d) The only employees of Sourceability authorized to issue, amend or cancel this Order are its (i) purchase agents and (ii) chief executive officer or president. It is Seller’s express responsibility to assure that this Order is issued by one of the aforementioned authorized employees of Sourceability. Issuance by an unauthorized employees of Sourceability may result in Sourceability not honoring this Order.
“Sourceability” means all legal entities in Sourceability Group listed as below:
Sourceability North America LLC with its business address at 8880 NW 20th Street, Suite J, Doral, FL 33172, United States
Sourceability SG Pte Ltd with its business address at 138 Joo Seng Road #05-02, Singapore 368361
Sourceability (Shanghai) Co., Ltd. with its business address at Huaxin Haixin Building Unit C, 5F 666,Fuzhou Road, Huangpu District, 200001, Shanghai, P.R.China
Sourceability Hongkong Limited with its business address at Rm 1701-02 Westin Centre, 26 Hung To Road, Kwun Tong, Hong Kong
Sourceability Vertriebsgesellschaft GmbH with its business address at Kühbachstraße 11, München, 81543, Germany
3. Acceptance. This Order is not binding on Sourceability until Seller accepts this Order in writing or starts to perform in accordance with this Order and provides Sourceability with notice thereof. If Seller does not accept this Order in writing or provide written notice that it has commenced performance by the first business day following Seller’s receipt of this Order, this Order may be withdrawn at any time by Sourceability.
4. Delivery Date. Seller shall deliver the Goods in the quantities and on the date(s) specified in this Order or as otherwise agreed in writing by the parties (the Delivery Date). Timely delivery of the Goods is of the essence. If Seller fails to deliver the Goods in full on the Delivery Date, Sourceability may terminate this Order immediately by providing written notice to Seller. Acceptance of late delivery by Sourceability shall not be deemed a waiver of Seller’s indemnification obligations for breach of the Terms.
5. Quantity. If Seller delivers more or less than the quantity of Goods ordered, Sourceability may reject all or any excess Goods. Any such rejected Goods shall be returned to Seller at Seller’s risk and expense. If Sourceability does not reject the Goods and instead accepts the delivery of Goods at the increased or reduced quantity, the Price for the Goods shall be adjusted on a pro-rata basis.
6. Delivery Location. All Goods shall be delivered to the address specified in this Order (the Delivery Location) during Sourceability’s normal business hours or as otherwise instructed by Sourceability.
7. Shipping Terms. Delivery shall be made in accordance with the terms on the face of this Order. Seller shall give written notice of shipment to Sourceability when the Goods are delivered to a carrier for transportation. Seller shall provide Sourceability all shipping documents, including the commercial invoice, packing list, air waybill/bill of lading and any other documents necessary to release the Goods to Sourceability, on the same business day Seller delivers the Goods to the transportation carrier. The Order number must appear on all shipping documents, shipping labels, bills of lading, air waybills, invoices, correspondence and any other documents pertaining to this Order.
8. Title and Risk of Loss. Title passes to Sourceability upon delivery of the Goods to the Delivery Location. Seller bears all risk of loss or damage to the Goods until delivery of the Goods to the Delivery Location.
9. Packaging. All Goods shall be packed for shipment according to Sourceability’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Seller shall separately number all cases and packages, showing the corresponding number on invoices. An itemized packing slip bearing the purchaser order number shall be placed in each container.
10. Amendment and Modification. No change to this Order is binding upon Sourceability unless it is in writing, specifically states that it amends this Order and is signed by an authorized representative of Sourceability.
11. Inspection and Rejection of Nonconforming Goods. Sourceability has the right to inspect the Goods on or after the Delivery Date. Sourceability, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective (including without limitation if the Goods are clone or counterfeit). If Sourceability rejects any portion of the Goods, Sourceability has the right, effective upon written notice to Seller, to: (a) rescind this Order in its entirety and immediately refund the Price paid in full; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods. If Sourceability requires replacement of the Goods, Seller shall, at its expense, replace the nonconforming Goods within such time frame as specified by Sourceability for fulfillment of its obligations to its customer, and shall pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Goods. If Seller fails to deliver timely replacement Goods, Sourceability may replace them with goods from a third party and charge Seller the cost thereof and terminate this Order for cause pursuant to Section 18. Any inspection or other action by Sourceability under this Section 11 shall not reduce or otherwise affect Seller’s obligations under this Order, and Sourceability shall have the right to conduct further inspections after Seller has carried out its remedial actions. In the event that Sourceability determines in good faith that the Goods are clone or counterfeit, Seller shall immediately upon request of Sourceability disclose to Sourceability in writing the source(s) of the Goods, providing all contact information for the supplier(s) accompanied by all of Seller’s purchase information for the Goods from such supplier(s).
12. Price and Payment. The price and payment terms of the Goods is stated on the face of this Order (the Price). Unless otherwise specified in this Order, the Price includes, but is not limited to all packaging, transportation costs to the Delivery Location, insurance, customs duties and fees and applicable taxes, including, but not limited to, all sales, use or excise taxes]. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Sourceability.
13. Set-off. Without prejudice to any other right or remedy it may have, Sourceability reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Sourceability to Seller.
14. Warranties. Seller warrants to Sourceability that all Goods will: (a) be free from any defects in workmanship, material and design; (b) strictly conform to applicable specifications, drawings, designs, samples and other requirements specified by Sourceability; (c) be fit for their intended purpose and operate as intended; (d) be merchantable; (e) be free and clear of all liens, security interests or other encumbrances; (f) not infringe or misappropriate any third party’s patent or other intellectual property rights; and (g) carry the original manufacturer’s warranty. Seller further warrants it has full right power and authority to sell and transfer title to all Goods. These warranties survive any delivery, inspection, acceptance or payment of or for the Goods by Sourceability. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Sourceability’s discovery of the noncompliance of the Goods with the foregoing warranties. If Sourceability gives Seller notice of noncompliance, Sourceability may, at its sole option, require Seller (i) to immediately refund the Price paid in full or, (ii) replace or repair the defective or nonconforming Goods at Seller’s own cost and expense within such time frame as specified by Sourceability for fulfillment of its obligations to its customer, and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods to Seller and the delivery of repaired or replacement Goods to Sourceability.
15. Authenticity and Traceability. The Seller hereby declares that Goods delivered to Sourceability are produced by the original manufacturer and 100% fully traceable. If the Seller is a franchised distributor, it shall only supply Goods to Sourceability from the manufacturer that they are franchised for. The Seller further warrants in case of any quality issues, the Seller will provide Sourceability with technical support and arrange Sourceability get necessary support from the original manufacturer upon Sourceability’s request within a reasonable timeframe after receiving the written notice from Sourceability. Should the Seller violate this clause and/or Sourceability reasonably determines that the product is counterfeit and not produced by the original manufacturer, the Seller shall be liable to any damages and losses arising therefrom, including but not limited to the related quality issue resulting in a recall, RMA, RTV or any other related failure.
16. RoHS Conformity. The Seller undertakes to comply with Directives of the European Parliament and of the Council on the restriction of the use of certain hazardous substances in electrical and electronic equipment (RoHS)
17. Reach Conformity. The Seller undertakes to comply with the Regulation (EC) 1907/2006 for the registration, evaluation, authorisation and restriction of chemicals (REACH).
18. Conflict material. The Seller shall guarantee and can be requestedto provide written evidence documenting that minerals, including among otherstin, tantalum, tungsten and gold, used to manufacture components and productssupplied to Sourceability do not originate from so-called Conflict Regions suchas Congo. If they originate from Conflict Regions they must be certified as“conflict free” by an independent third party. The aim is to ensure that onlyconflict-free components and materials are used in the products supplied to Sourceability.
19. CoC (Certificates of Conformance). Each delivery must be accompanied by signed certificate(s) that confirm compliance with the terms on which this PO are based (in particular also the tests to be performed by the Seller, and adherence to the specified quality characteristics) upon request of Sourceability
20. General Indemnification. Seller shall defend, indemnify and hold harmless Sourceability and Sourceability’s parent company, their subsidiaries, affiliates, successors or assigns and their respective directors, officers, shareholders and employees and Sourceability’s customers (collectively, Indemnitees) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including legal and professional fees and costs, exchange rate losses and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, Losses) arising out of, related to or occurring in connection with (i) the products purchased from Seller, (ii)
Seller’s negligence or willful misconduct, (iii)return of the Goods/RMA, return of payment in advance or cancellation of this Order which shall not be attributed from the reason of Sourceability, or (iv) any breach of the Terms. Seller shall not enter into any settlement without Sourceability’s or Indemnitee’s prior written consent.
21. Intellectual Property Indemnification. Seller shall, at its expense, defend, indemnify and hold harmless Sourceability and any Indemnitee against any and all Losses arising out of or in connection with any claim that Sourceability’s or Indemnitee’s use or possession of the Goods infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. If the use or sale of any item with respect to which Seller indemnifies an Indemnitee is enjoined as a result of such a claim, Seller, at its expense, shall obtain the right to use and sell said items or shall substitute equivalent items. In no event shall Seller enter into any settlement without Sourceability’s or Indemnitee’s prior written consent.
22. Insurance. Seller shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum sufficient to fund its indemnification obligations hereunder with financially sound and reputable insurers. Upon Sourceability’s request, Seller shall provide Sourceability with a certificate of insurance from Seller’s insurer evidencing the insurance coverage specified in this Order. Except where prohibited by law, Seller shall require its insurer to waive all rights of subrogation against Sourceability’s insurers and Sourceability or the Indemnitees.
23. Compliance with Law. Seller is in compliance with and shall comply with all applicable laws, regulations and ordinances. Seller has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under thisOrder. Seller shall comply with all export and import laws of all countries involved in the sale of Goods under this Order. Seller assumes all responsibility for shipments of Goods requiring any government import clearance. Sourceability may terminate this Order if any government authority imposes antidumping duties, countervailing duties or any retaliatory duties on the Goods.
If any in compliance including but not limited to the over-declaration and/or under-declaration is discovered after delivery, Sourceability will notifySeller in writing and is entitled to hold the payment of the product price. If the payment has already been made, Sourceability is entitled to hold such payment from any outstanding and/or future invoices. Furthermore, Seller shall pay a fixed penalty in amount of USD 500 per occurrence and shall bear all expenses without prejudice to a potential claim by Sourceability for any other loss incurred by Sourceability especially a loss that may be due to additional payment of tax or import/export duties. The Seller hereby agrees that Sourceability is entitled to deduct such penalty from any invoices.
24. Termination. In addition to any remedies that may be provided under these Terms, Sourceability may terminate this Order with immediate effect upon written notice to the Seller, either before or after the acceptance of the Goods, if Seller has not performed or complied with any of these Terms, in whole or in part. If the Seller becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then Sourceability may terminate this Order upon written notice to Seller. If Sourceability terminates this Order for any reason, then (i) Seller’s sole and exclusive remedy is payment for the Goods received and accepted by Sourceability prior to the termination, and (ii) Seller shall immediately refund to Sourceability the Price paid for all Goods not accepted by Sourceability.
25. Waiver. No waiver by any party of any of the provisions of this Order shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Order, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Order shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
26. Confidential Information. All non-public, confidential or proprietary information of Sourceability, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Sourceability to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with this Order is confidential, solely for the use of performing this Order and may not be disclosed or copied, or used for any other purpose, unless authorized by Sourceability in writing. Upon Sourceability’s request, Seller shall promptly return all documents and other materials received from Sourceability. Sourceability shall be entitled to injunctive relief for any violation of this Section 20, and the Seller agrees that damages will not be an adequate remedy for breach of this Section 20. This Section 20 shall not apply to information that is: (a) in the public domain; (b) known to the Seller at the time of disclosure; or (c) rightfully obtained by the Seller on a non-confidential basis from a third party.
27. Assignment. Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Order without the prior written consent of Sourceability. Any purported assignment or delegation in violation of this Section 21 shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder. Sourceability may at any time assign, transfer or subcontract any or all of its rights or obligations under this Order without Seller’s prior written consent.
28. Third Party Beneficiaries. The parties hereby designate Sourceability’s parent company, their subsidiaries, affiliates, and customers as third-party beneficiaries of this Order having the right to enforce the terms hereof.
29. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Order shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from this Order.
30. Governing Law. Insofar as the purchase orders were placed by Sourceability North America LLC, the Parties hereby agree that the law of State of Florida shall apply exclusively to all disputes or claims resulting from or in connection with this Order.
Insofar as the purchase orders were placed by Sourceability SG Pte Ltd, the Parties hereby agree that the law of Singapore shall apply exclusively to all disputes or claims resulting from or in connection with this Order.
Insofar as the purchase orders were placed by Sourceability (Shanghai) Co., Ltd., the Parties hereby agree that the law of PRC shall apply exclusively to all disputes or claims resulting from or in connection with this Order.
Insofar as the purchase orders were placed by Sourceability Hongkong Limited, the Parties hereby agree that the law of HKSAR shall apply exclusively to all disputes or claims resulting from or in connection with this Order.
Insofar as the purchase orders were placed by Sourceability Vertriebsgesellschaft GmbH, the Parties hereby agree that the law of Germany shall apply exclusively to all disputes or claims resulting from or in connection with this Order.
31. Arbitration. Any dispute arising out of or relating to this Order shall be submitted toInternational Chamber of Commerce (“ICC”). The arbitration language shall be English. The arbitration award shall be binding..
Insofar as the purchase orders were placed by Sourceability North America LLC, the arbitration place shall be Doral, Florida, USA.
Insofar as the purchase orders were placed by Sourceability SG Pte Ltd., the arbitration place shall be Singapore.
Insofar as the purchase orders were placed by Sourceability (Shanghai) Co., Ltd., the arbitration place shall be Shanghai, China.
Insofar as the purchase orders were placed by Sourceability Hongkong Limited, the arbitration place shall be HKSAR.
Insofar as the purchase orders were placed by Sourceability Vetriesgellschaft GmbH, the arbitration place shall be Munich, Germany.
32. Cumulative Remedies. The rights and remedies under this Order are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
33. Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a Notice) shall be in writing and addressed to the parties at the addresses set forth on the face of this Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Order, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section 27.
34. Severability. If any term or provision or part-provision of this Order is invalid, illegal or unenforceable in any jurisdiction, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant term or provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Section 28 shall not affect the validity and enforceability of the rest of the Order.
35. Survival. Provisions of this Order which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Order including, but not limited to, the following provisions: Set-off, Warranties, General Indemnification, Intellectual Property, Indemnification, Insurance, Compliance with Laws, Confidentiality, Governing Law, Submission to Jurisdiction and Survival.