The sale of products and services ("Products") by Sourceability and its divisions, subsidiaries, and affiliates ("Sourceability") to a customer (“Customer”) are subject to these terms and conditions ("Agreement") regardless of other terms or conditions in any purchase order, document, or other communication of Customer ("Order") or Sourceability’s failure to object to such other terms. This Agreement may only be modified in writing signed by authorized representatives of both Sourceability and Customer.
1. DEFINITION. "Sourceability" means all legal entities in Sourceability Group listed as below:
Sourceability North America LLC
Sourceability SG Pte Ltd
Sourceability (Shanghai) Co., Ltd.
Sourceability Hong Kong Limited
Sourceability Vertriebsgesellschaft GmbH
2. ORDERS, ACCEPTANCE AND CANCELLATION. Unless otherwise stated on the quote, Sourceability quotes are invitations to tender and are subject to change at any time without notice. All Orders are subject to acceptance by Sourceability. Contracts between Customer and Sourceability are formed upon Sourceability's written acceptance, Electronic Data Interchange (“EDI”) acknowledgment or execution of Customer's Order and are subject to this Agreement. Any cancellation must be accepted by Sourceability in writing, and Sourceability shall have the right to retain all amounts paid to it by Customer as a non-refundable deposit against payment of the purchase price without further liability of Sourceability to Customer. Sourceability may identify the Orders as “NCNR” which means “Non-Cancelable and Non-Returnable" by various means including quotes, Products lists, attachments or exhibits. Acceptance of an order by Sourceability shall be an irrevocable sale and is non-cancelable by Customer. Customer will be responsible for all fees and expenses (including reasonable attorneys' fees and expenses) incurred by Sourceability as a result of the cancellation of any order. Sourceability reserves the right to allocate the sale of Products among its Customers.
3. PRICES. Unless otherwise stated on Sourceability’s proposal, quote or invoice, prices are for Products only and do not include taxes, freight, customs, duties or any other charges or fees for additional services (collectively, “Additional Fees”). Unless otherwise stated on Sourceability’s proposal, quote or invoice, Customer is responsible for any and all Additional Fees. Sourceability reserves the right to change prices, especially due to price increases on the part of the manufacturer, transport cost increases, customs and import as well as export cost increases, currency fluctuations, change in market conditions or any other causes beyond Sourceability’s reasonable control.
4. TERMS OF PAYMENT. Payment is due as stated on Sourceability’s invoice without offset or any deduction for withholding taxes or otherwise. On any past due invoice, Sourceability may charge interest from the payment due date to the date of payment at 8% per annum or the maximum amount allowed by applicable law, plus reasonable attorneys’ fees and collection costs. At any time, Sourceability may change the terms of Customer's credit. Sourceability may apply payments to any of Customer's accounts. If Customer defaults on any payment, Sourceability may reschedule or cancel any outstanding delivery or Order and declare all outstanding invoices due and payable immediately. Unless otherwise provided by applicable law, Customer credits provided by Sourceability will expire if unused within 12 months.
5. DELIVERY. Unless otherwise stated by Sourceability, all Sourceability deliveries are provided EXW (Sourceability’s warehouse) or EXW (manufacturer’s warehouse) for direct pickups (INCOTERMS 2010). Sourceability's delivery dates are estimates only and subject to Sourceability’s timely receipt of supplies. Sourceabilty is not liable for delays in delivery, for partial or early deliveries and Customer shall accept delivery. Customer may not cancel any other Orders based on delayed delivery of any part of an Order.
6. TITLE. The title shall pass to Customer upon payment in full for the Product by Customer. In case of an onwards sale, Customer assigns all rights in the related receivables to Sourceability until Customer has made payment in full. Once the Product is processed or combined with other items (the “Processed Product”), Sourceability’s retained title transfers to a share in the title in the Processed Product reflecting the value of the Product relative to the value of the Processed Product. This section does not apply to sales of Software (as defined below).
7. SOFTWARE. Software is the machine readable (object code) version of computer programs (“Software”). Customer’s use of Software and any related documentation shall be governed by the Software’s applicable license agreements. Software embedded in or bundled with hardware must be used solely with the device for which it was intended and may not be transferred separately.
8. INTELLECTUAL PROPERTY Sourceability does not assume any responsibility in respect of the intellectual property rights in and to the Goods whatsoever. Sourceability does not warrant that there is no infringement of third party intellectual property rights in respect of the Goods. Customer shall indemnify and hold harmless Sourceability from any and all claims arising out of any infringement of a third party's intellectual property rights or any claims thereof relating to the Goods. Sourceability shall have the right to control the conduct of any suit pending or threatened, claim or other proceeding arising out of the alleged intellectual property rights infringement in respect of the Goods or other right of another person involving Sourceability. For the purposes of these Conditions, "intellectual property rights" shall refer to all intellectual property rights including but not limited to patent, copyright, trademark, design rights, industrial design rights and registration and applications for the foregoing.
We have a policy of respecting the intellectual property rights of others. If any person believes that their work has been copied in a way that constitutes copyright infringement, please provide notice to our copyright agent at legal@sourceability.com the following information:
1. A physical and electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information is reasonably sufficient to permit the copyright agent to locate the material;
4. Information is reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, and electronic mail address at which the complaining party may be contacted;
5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agents, or the law; and
6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly.
9. WARRANTY. Within three (3) years of the date of delivery of the Goods to Customer, if Customer wishes to claim any defect in the Goods delivered, Customer shall delivery a written notice to Sourceability in the format prescribed by Sourceability, with a description of the alleged defect, photographs of the alleged physical defect and a test report for an alleged functional defect.
Where such claims of defect or quality or quantity shortages are made by Customer, Sourceability shall have an opportunity for inspection of such Goods, or upon the request of Sourceability, Customer shall give or procure that Sourceability is given immediate access to such Goods or return the Goods to Sourceability for inspection at Customer's expense.
SOURCEABILITY SHALL HAVE NO LIABILITY TOWARDS CUSTOMER BEYOND THE EXPRESS TERMS OF SUCH MANUFACTURER PRODUCT WARRANTIES. SOURCEABILITY ASSUMES NO LIABILITY FOR THE QUALITY OF THE WORK PERFORMED OR SERVICES RENDERED BY THIRD PARTY VENDORS/SERVICE PROVIDERS. IT IS CUSTOMER'S OBLIGATION TO REQUEST COPIES OF ANY APPLICABLE MANUFACTURER WARRANTIES AND CUSTOMER SHALL BE DEEMED TO HAVE ACCEPTED SUCH WARRANTIES UPON ACCEPTANCE OF THE PRODUCTS AND/OR SERVICES. Sourceability MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, SUCH AS WARRANTY OF MERCHANTABILITY, FITNESS FOR PURPOSE OR NON-INFRINGEMENT.
Customer’s sole remedies for breach of Sourceability’s warranty are, at Sourceability’s choice: (i) repair of the Products; (ii) replacement of the Products; or (iii) refund of Customer’s purchase price for the Products.
Sourceability makes no representation or warranty with respect to Software and will have no liability in connection therewith. Unless it is specifically stated in the Software’s applicable license agreement, SOFTWARE IS PROVIDED “AS IS” WITH NO ADDITIONAL WARRANTY.
10. INCOMING INSPECTION AND PRODUCT RETURN. Customer shall carefully inspect all goods promptly on receipt from the carrier and report any quality or quantity shortages or defects to Sourceability within ten (10) days of receipt thereof. In any event, all claims against Sourceability arising out of the sale of the Goods must be made within ten (10) days after receipt by Customer of the Goods shipped hereunder by providing written notice to Sourceability, after which time Customer will be deemed to have irrevocably accepted the Products.
Customer may return Products to Sourceability only with a return material authorization (“RMA”) number issued by Sourceability. Reasons: (A) Returns for Visual Defect: Customer must notify Sourceability in writing of any damage to the outer packaging or the Products, shortage, or other discrepancy (“Visual Defect”) within three business days after receipt of the shipment; otherwise, Customer is deemed to have accepted the Products. (B) Returns for Product Warranty: Customer must notify Sourceability in writing stating the specific Product defect within the warranty period. Sourceability will only issue an RMA if the defect (either for Visual Defect or for Product Warranty) is created solely by Sourceability or the original manufacturer, and only if Customer meets the notice requirement. Sourceability will not grant RMAs for damage, shortage, or other discrepancy created by Customer, the carrier or freight provider arranged by Customer, or any other third party. Upon receiving the RMA, Customer must return the Products to Sourceability in compliance with Sourceability’s instructions in the RMA. Sourceability may assess all Products returned by Customer via RMA. If Sourceability determines such Products are not eligible for return, Sourceability will send such Products back to Customer on freight collect basis, or hold such Products for Customer’s collection and on account at Customer’s expense.
11. LIMITATION OF LIABILITY. Sourceability’s liability is governed by the statutory provisions, if not stipulated otherwise in the Agreement. Sourceability is liable in its capacity as a distributor. SOURCEABILITY’S LIABLITY TO CUSTOMER IS LIMITED TO CUSTOMER’S DIRECT DAMAGES UP TO AN AMOUNT NOT EXCEEDING THE PRICE OF THE PRODUCT AT ISSUE. THIS LIMITATION OF LIABILITY DOES NOT APPLY IN CASE OF DEATH OR PERSONAL INJURY CAUSED BY SOURCEABILITY’S NEGLIGENCE. SOURCEABILITY IS NOT LIABLIE FOR THE CUSTOMER AND CUSTOMER IS NOT ENTITLED TO ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (FOR EXAMPLE, LOSS OF PROFITS OR REVENUE, LOSS OF DATA, LOSS OF USE, REWORK, REPAIR, MANUFACTURING EXPENSE, COSTS OF PRODUCT RECALL, INJURY TO REPUTATION OR LOSS OF CUSTOMERS).
To the extent Sourceability cannot lawfully disclaim any implied or statutory warranties, Customer’s statutory rights are not affected by this limitation of liability.
12. FORCE MAJEURE. Sourceability is not liable for failure to fulfill its obligations under this Agreement due to causes beyond its reasonable control (for example, acts of nature, acts or omissions of Customer, operational disruptions, man-made or natural disasters, epidemic medical crises, materials or Product shortages, strikes, criminal acts, delays in delivery or transportation, or inability to obtain labor, materials or Products through regular sources).
13. USE OF PRODUCTS. Customer shall comply with the manufacturer's Product specifications. Products are not authorized for use in life support systems, human implantation, nuclear facilities or any other application where Product failure could lead to loss of life or property damage. If Customer uses or sells the Products for use in such applications or fails to comply with the manufacturer's Product specifications, Customer acknowledges that such use, sale, or non-compliance is at Customer's sole risk. Customer shall indemnify, defend and hold Sourceability harmless from any claims based on: (i) Sourceability's compliance with Customer's designs, specifications, or instructions, (ii) modification of any Product by anyone other than Sourceability, or (iii) use of Products in combination with other products or in violation of this clause.
14. EXPORT/IMPORT CONTROL. Certain Products and related technology sold by Sourceability are subject to export control regulations of the United States, the European Union, Singapore and/or other countries, excluding boycott laws ("Export Laws"). Customer shall comply with such Export Laws and obtain any license or permit
required to transfer, export, re-export or import the Products and related technology. Customer shall not export or re-export the Products and related technology to any country or entity to which such export or re-export is prohibited, including any country or entity under sanction or embargoes administered by the United States, European Union or other countries. Customer shall not use the Products and related technology in relation to chemical, biological or nuclear weapons, rocket systems (including ballistic missile systems, space launch vehicles and sounding rockets) or unmanned air vehicles capable of delivering same, or in the development of any weapons of mass destruction.
15. ELECTRONIC ORDERS. If any part of the purchase and sale of Products, including Customer's NCNR acknowledgment or demand forecast, uses EDI, Customer's internal portal, third party portal or any other electronic means an as far as mutually agreed in writing by individual agreement("Electronic Purchase Order"), this Agreement will continue to apply to the purchase and sale of Products between Customer and Sourceability. Customer's acceptance of Sourceability's acknowledgment request or Sourceability's specification of details with respect to Electronic Purchase Orders via writing, email or other EDI is binding on Customer.
16. Purchase of Goods via Sourceability's Sourcengine e-commerce platform ("Sourcing Platform"). In the event that Customer doesn’t send a purchase order directly to an account manager within Sourceability, but instead Customer uses Sourcing Platform to purchase Goods, Sourceability reserves the right to determine whether to handle Customer’s purchase through the Sourcing Platform or outside of the Sourcing Platform. In the case where the Goods are purchased by Customer through the Sourcing Platform, Sourceability shall enter into Sourcing Platform’s terms and conditions of sale with Customer and this Agreement shall not apply. In the case where the Goods are purchased by Customer outside of the Sourcing Platform, this Agreement shall apply.
17. ENVIRONMENTAL COMPLIANCE. Where applicable, Customer is responsible for all obligations and liabilities under the European Union’s (i) Waste Electrical and Electronic Equipment Directive (2012/19/EU), (ii) Packaging Waste Directive (94/62/EC) and (iii)
Batteries Directive (2006/66/EC), all as amended and all related national implementing measures in force from time to time.
18. TECHNICAL ASSISTANCE OR ADVICE Any technical assistance or advice offered by Sourceability in regard to the use of any Product or provided in connection with Customer’s purchases is given free of charge and only as an accommodation to Customer. Sourceability shall have no obligation to provide any technical assistance or advice to Customer and if any such assistance or advice is provided, such fact will not obligate Sourceability to provide any further or additional assistance or advice. Sourceability shall not be held liable for the content or Customer’s use of such technical assistance or advice nor shall any statement made by any of Sourceability’s representatives in connection with the Products constitute a representation or warranty, express or implied.
19. WAIVER. The failure or delay of Sourceability to exercise any of its rights hereunder shall not be construed to be a waiver of any such rights. No waiver by Sourceability of any breach of this Contract shall be effective as against Sourceability unless Sourceability shall have waived such breach in writing, and no waiver by Sourceability of one breach hereunder shall be deemed to be a waiver by Sourceability of any other breach not so waived.
20. ATTORNEYS' FEES. In the event Customer fails to pay any amounts due under this Contract, Customer agrees to pay all costs incurred by Sourceability in collecting any such amounts, including without limitation reasonable attorneys' fees and costs including fees and costs arising from the representation of Sourceability in a bankruptcy proceeding of Customer.
21. Governing Law. Insofar as the purchase order are accepted 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 are accepted 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 are accepted 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 are accepted by Sourceability Hong Kong 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 are accepted 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.
22. Arbitration. Any dispute arising out of or relating to this Order shall be submitted to International Chamber of Commerce (“ICC”). The arbitration language shall be English. The arbitration award shall be binding.
Insofar as the purchase orders are accepted by Sourceability North America LLC, the arbitration place shall be Doral, Florida, USA.
Insofar as the purchase orders are accepted by Sourceability SG Pte Ltd., the arbitration place shall be Singapore.
Insofar as the purchase orders are accepted by Sourceability (Shanghai) Co., Ltd., the arbitration place shall be Shanghai, China.
Insofar as the purchase orders are accepted by Sourceability Hong Kong Limited, the arbitration place shall be HKSAR.
Insofar as the purchase orders are accepted by Sourceability Vertriebsgesellschaft GmbH, the arbitration place shall be Munich, Germany.
23. GENERAL.
A. Customer may not assign this Agreement without Sourceability’s prior written consent. Sourceability's affiliates may perform Sourceability's obligations under this Agreement. This Agreement is binding on successors and assigns.
B. The unenforceability or invalidity of any of these terms or conditions will not affect the remainder of the terms or conditions.
C. Products, including software or other intellectual property, are subject to any applicable rights of third parties, such as patents, copyrights and user licenses, and Customer shall comply with such rights.
D. The Customer must comply with all applicable laws, including anti-corruption laws such as U.S. Foreign Corrupt Practices Act and U.K. Anti-Bribery Act.
E. Product information (for example, statements or advice (technical or otherwise), advertisement content, and information related to a Product's specifications, features, export/import control classifications, uses or conformance with legal or other requirements) is provided by Sourceability on an "AS IS" basis and does not form a part of the properties of the Product. Sourceability makes no representation as to the accuracy and completeness of the product information and DISCLAIMS ALL REPRESENTATION, WARRANTY AND LIABILITY IN ANY WAY CONCERNING THE PRODUCT INFORMATION. Sourceability recommends that the Customer should have any product information checked and validated by Sourceability prior to use of the Product or its application based on this information. Any product information may be changed without prior notice. Sourceability shall not be liable for typographical or other errors or omissions in product information.