1. STRUCTURE
1.1. These terms and conditions of sale (“Agreement”) govern the sale, license, resale and distribution, as applicable, of third-party vendor (“Vendor”) hardware, products, software (including all open source licensed or distributed by Vendor, or incorporated into any Vendor software), and services (collectively “Products”) by the Tec D entity providing Products (“TEC D”) to the entity purchasing or licensing the Products from TEC D (“Buyer”). Buyer accepts these terms and conditions through any of the following actions, whichever occurs first: (a) Buyer submits a purchase order (“Order”) to TEC D; (b) Buyer provides written acknowledgment of the terms and conditions; (c) Buyer accepts any shipment of any Products; or (d) Buyer performs any other act or expression of acceptance. Buyer’s acceptance is expressly limited to these terms and conditions in their entirety without addition, modification or exception, and TEC D hereby rejects any term, condition or other proposal submitted by Buyer (whether oral or in writing), which are inconsistent with or in addition to TEC D’s terms and conditions. TEC D’s silence or failure to respond to any such subsequent or different term, condition or proposal shall not be deemed to be TEC D’s acceptance.
1.2. Third party terms and conditions, such as a manufacturer reseller authorisation, warranty or shrink wrapped software license, or the statements of work or terms and conditions of any third parties who perform services (“Service Provider”), shall govern the relationship between the third party and Buyer for such product or service (collectively “Third Party Terms”).
2. BUYER’S OBLIGATIONS
2.1 If required by the Product manufacturer or the Service Provider, Buyer certifies it has obtained and is in compliance with any required terms and conditions to be authorised to purchase Products from TEC D for Buyer’s marketing, marketing support and internal use (“Manufacturer Reseller Authorisation”), including but not limited to its obligation to provide its end user a copy of any pass-through terms (as dictated and provided by the Product manufacturer directly to Buyer or through TEC D) and that the end user is informed that the pass-through terms create a binding contractual obligation between the Product manufacturer and end user.
2.2 Buyer shall keep accurate records for five (5) years, or for a longer period as required by law.
2.3 Buyer shall permit TEC D to audit its records related to this Agreement and the underlying transactions, upon reasonable notice of a compliance review to occur during normal business hours.
2.4 Unless otherwise required by the terms and conditions governing TEC D’s relationship with the applicable Product manufacturer (“Manufacturer Distributor Authorisation”) or Manufacturer Reseller Authorisation, all rights to any accrued promotional allowances, funds and promotional services will automatically lapse upon notification from TEC D.
2.5 Buyer agrees to refund TEC D the amount of all (1) discounts, fees, rebates, allowances, audit and other compliance verification procedure expenses; and (2) promotional and marketing funds provided to Buyer that TEC D reimburses the manufacturer pursuant to the Manufacturer Distributor Authorisation as a result of Buyer’s non-performance of the Manufacturer Reseller Authorisation or those obligations TEC D may be required by the Manufacturer Distributor Authorisation to have Buyer perform. TEC D may also recover such refund by offsetting any amounts due to Buyer from TEC D.
2.6 Buyer has no authority and agrees not to assume or create any obligations on TEC D’s behalf, including but not limited to commitments with respect to quantities, deliveries, modifications, performance capacity of the Products, interfacing, capability, suitability of software, or suitability in specific applications. Buyer will indemnify TEC D from liability for any such obligations assumed or created by Buyer.
2.7 Buyer shall not make or authorise disclosure of the pricing terms or TEC D’s business policies, programs and practices to third parties without the prior written consent of TEC D.
2.8 Buyer shall comply with Product manufacturer’s value-added requirements and quoting guidelines for marketing and quoting of Products.
2.9 Buyer acknowledges that TEC D may collect personal and credit information in connection with its dealings with Buyer in accordance with TEC D’s Privacy Statement and Privacy Policy and Buyer consents to that information being collected.
3. SECURITY INTEREST
Buyer agrees that prior to accepting an Order, TEC D may require Buyer to grant TEC D a security interest to secure payment for the Order or other credit accommodation as a condition of accepting the Order.
4. LIMITATION OF LIABILITY
4.1 Except for the remedies provided hereunder with respect to warranties provided by TEC D, Buyer agrees that it will look solely to the manufacturers of the Products, or to the Service Provider, for relief in respect of any and all claims, actions, suits, proceedings, demands, liabilities, losses, damages and expenses (including attorneys’ fees) resulting from any claim by Buyer or any third party (including Buyer’s employees) arising out of or related in any way to the Products or the use or operation thereof, whether such claim is brought in contract, warranty, tort or otherwise (collectively “Liabilities”). Buyer will defend, indemnify and hold TEC D harmless from and against all such Liabilities.
4.2 Unless otherwise expressly mandated by applicable law, TEC D shall not be liable for and Buyer shall not be entitled to any indirect, special, incidental or consequential damages or any punitive damages of any kind or nature (for example, business interruption costs, removal and/or reinstallation costs, reprocurement costs, loss of profit or revenue, loss of data, promotional or manufacturing expenses, overhead, injury to reputation or loss of customers), even if TEC D had been advised of the possibility of such damages. Buyer will indemnify, defend and hold TEC D harmless from any claims based on: (i) TEC D’s compliance with Buyer’s designs, specifications, or instructions; (ii) modification of any Products by anyone other than TEC D; (iii) use in combination with other products; and (iv) any negligence, omission, or intentional act by Buyer or its directors, employees or agents.
4.3 Except for claims for payment of any Order, and subject to any applicable law, no action arising of this Agreement may be brought by either party more than two (2) years after such cause of action accrues.
5. TEC D’S LIMITED WARRANTY
TEC D will transfer to Buyer any Product warranty and indemnity authorised by the Product manufacturer, including any transferable warranty and indemnity for intellectual property infringement. TEC D warrants the Products will conform to the manufacturer’s specifications. Value-added work performed by TEC D on Products will conform to Buyer’s specifications. Buyer’s sole remedies for breach of TEC D’s warranty are, at TEC D’s choice: (i) repair of the Products; (ii) replacement of the Products; or (iii) refund of Buyer’s purchase price for the Products. TEC D makes no representation or warranty with respect to software and will have no liability in connection therewith. TEC D makes no other warranty, express or implied, such as warranty of merchantability, fitness for purpose or non-infringement.
6. INTELLECTUAL PROPERTY
If an Order includes software or other intellectual property, such software or other intellectual property is provided by TEC D to Buyer subject to all legal restrictions, including any user license, the terms of which are set forth in the license agreement accompanying such software. Nothing herein shall be construed to grant any rights or license to use any software or other intellectual property in any manner or for any purpose not expressly permitted in writing. Unless otherwise provided herein, TEC D is not the licensor and Buyer acquires the license directly from the manufacturer or the manufacturer’s authorised licensor. Products, including software or other intellectual property, are subject to any applicable rights of third parties, such as patents, copyrights and/or user licenses.
7. ORDERS
All Orders are subject to acceptance by TEC D. Orders for special, custom, value-added products and Products specifically identified by TEC D as non-standard are non-cancellable and non-returnable (“NCNR”). Orders for standard Products may not be cancelled or rescheduled without TEC D’s consent. TEC D reserves the right to allocate the sale of Products among its Buyers. TEC D may terminate any Order (1) for default for which Buyer refuses or is unable to accept delivery, or fails to make payment when due and does not make such payment within ten (10) days after notice from TEC D that payment is past due; (2) if Buyer is unable to pay its debts when due or becomes insolvent; or (3) where Buyer is in material breach of this Agreement.
8. PRICES AND TAXES
TEC D’s quoted prices apply for 30 days or as otherwise stated in its quote. Prices may increase in the event of an increase in TEC D’s costs or other circumstances beyond TEC D’s reasonable control. Prices are for Products only and do not include taxes, transportation charges, or any other charges, fees, and duties imposed by any government authority, which unless otherwise stated on TEC D’s proposal, quote or invoice are the responsibility of Buyer. Buyer shall pay any GST, sales tax and/or any other value added tax chargeable on any payment to TEC D.
8.1. Payment of Taxes: All prices quoted are exclusive of all taxes. Each party is responsible for its own taxes relating to transactions under this Agreement and shall report and pay any relevant taxes to the respective tax authorities.
8.2. Documentation of Taxes: TEC D shall invoice Buyer for all taxes applicable to sales of the Products, itemized by type and jurisdiction, which TEC D is required by law to collect from Buyer. Upon Buyer’s request, TEC D shall provide Buyer with sufficient documentation to enable Buyer to complete any necessary tax filings or claim any applicable tax credits for amounts paid to TEC D.
8.3. Withholding Taxes: If Buyer is required by applicable law to deduct any amount from the amounts to be paid to TEC D under this Agreement on account of withholding taxes or any other taxes or levies of any kind, Buyer shall pay all such additional amounts so that the net amounts received by TEC D are the amounts specified on the invoice. To the extent that any withholding tax is payable, TEC D and Buyer shall mutually collaborate and provide any and all assistance reasonably requested to obtain the benefits of any applicable tax treaty between the country where the TEC D entity that accepted Buyer Order is located and the applicable jurisdiction where the withholding tax applied.
9. TERMS OF PAYMENT
Payment shall be made in U.S. dollars or in the local currency designated by TEC D. Unless otherwise specified, payment of the total invoice amount, without offset or deduction, is due 30 days from the invoice date. On any past due invoice, TEC D may charge interest from the payment due date to the date of payment at the rate of 2% per month (or the applicable statutorily mandated rate if the rate provided herein is deemed excessive), plus reasonable attorney fees and collection costs. TEC D may change the terms of Buyer’s credit at any time. Payments may be applied to any of Buyer’s accounts by TEC D in its discretion.
10. DELIVERY AND TITLE
10.1 Risk of loss or damage to the Products will pass to Buyer on delivery to the carrier in accordance with EX-WORKS (Tec D designated location) Incoterms 2020 basis and Buyer will adequately insure the Product until sold by Buyer.
10.2 The original manufacturer has the title to the Products. Title to hardware will pass to Buyer on delivery to carrier and title to software is not transferred at any time.
10.3 If payment is not made by Buyer to TEC D on the due date, Buyer must deliver the Product to TEC D on demand. If Buyer does not comply with such demand, TEC D and its employees or agents are entitled to exercise any remedy permitted by applicable laws and regulations.
10.4 Buyer’s right to hold and sell the Product will immediately cease if an administrator or a judicial manager or similar officer is appointed to all or any assets or undertaking of Buyer or an order is made or resolution passed for the winding up of Buyer or Buyer is liquidated or struck off. In any such case, and without the need for notice or demand by TEC D, Buyer acknowledges any subsequent sale or purported sale of the Product will not be in the ordinary course of Buyer’s business and the proceeds of any Product sold in such circumstances will be held in trust for TEC D by the administrator, judicial manager, liquidator or similar officer as the case may be, or if there is no such officer by Buyer.
10.5 Product invoiced to Buyer and held by TEC D for any reason shall be held at Buyer’s risk and expense.
10.6 TEC D’s delivery dates are estimates only and TEC D is not liable for delays in delivery. TEC D reserves the right to make partial shipments and Buyer agrees to accept delivery and pay for the Products delivered. A delayed delivery of any part of an Order does not entitle Buyer to cancel other instalments.
10.7 Buyer’s right to hold and sell the Products will immediately cease if Buyer is discovered to have sold, exported, re-exported or supplied goods or services to any nation subject to a U.S. Trade embargo or to any person or entity listed on the “Entity List” or “Denied Persons List” maintained by the U.S. Department of Commerce or to any military organization. In any such case, TEC D shall have the right to immediately terminate this Agreement without notice and TEC D shall have liens over all Products in Buyer’s possession at the time of such discovery and the title of all hardware shall revert to TEC D.
11. ACCEPTANCE OF PRODUCT AND PRODUCT RETURN
Buyer must notify TEC D in writing of any damage, shortage, or other discrepancy to Products within three (3) days after delivery. After the third day, Buyer is deemed to have accepted the Products and may not revoke acceptance. Products cannot be returned without a return material authorisation (“RMA”) number provided by TEC D under CIP destination Incoterm. Returned Products must be in original manufacturer’s shipping cartons or equivalent. All Products must be returned, freight prepaid, as specified in the RMA. Products not eligible for return will be returned to Buyer freight collect, or at TEC D’s option, held for Buyer’s account at Buyer’s expense.
12. MULTI-TIER TRANSACTIONS
All Products and/or services purchased by Buyer from TEC D shall be resold to the final end user only. Buyer shall not directly or indirectly market or resell Products or services to any other party (e.g., intermediaries, resellers, system integrators, sub-contractors) for further resale and/or sub-license to end users, unless:
(i) Buyer has prior written approval by TEC D and/or Vendor to market, sell, sub-license the Product and/or perform services to the other party; or
(ii) Buyer has notified TEC D in advance that it has an approved deal registration validly authorized by Vendor in a teaming or similar arrangement to market, sell, sub-license the Product and/or perform services to the other party.
TEC D and Vendor may, by serving at least three (3) days’ notice (by email or otherwise), conduct compliance reviews/audits on any transaction that Buyer may be involved with TEC D (“Audit”). It is a requirement for Buyer to cooperate with TEC D and Vendor in the Audit. Failure to cooperate in such Audit is a material breach of this Agreement. Where such Audit reveals any breach by Buyer under this Section, Buyer agrees to: (a) be responsible for the costs of an Audit; (b) conform with any additional requirements as may be further imposed by TEC D and/or Vendor to remediate such breach; and (c) be fully and solely liable to TEC D and/or Vendor for any damage, costs and/or expenses arising from such breach.
13. FORCES BEYOND TEC D’S CONTROL
TEC D is not liable for failure to fulfil its obligations for any accepted Order or for delays in delivery due to causes beyond its reasonable control (e.g., acts of God, acts or omissions of Buyer, acts of terrorism, riots, man-made or natural disasters, epidemics, medical crisis, materials shortages, strikes, delays in transportation, or inability to obtain labour or materials through its regular sources).
14. USE OF PRODUCTS
Products are not authorised for use in critical safety or other applications where a failure may reasonably be expected to result in personal injury, loss of life, or catastrophic property damage. If Buyer uses or sells the Products for use in any such applications, Buyer acknowledges that such use or sale is at Buyer’s sole risk. Buyer agrees to indemnify, defend and hold TEC D and the Product manufacturer harmless from and against any and all liabilities and costs arising out of or in connection with such use or sale.
15. EXPORT/IMPORT
15.1 TEC D accepts orders for Products for delivery to Buyer’s locations within TEC D’s authorised territory. Buyer shall obtain prior written permission from the Product manufacturer and TEC D to export Products or services outside such authorized territory. Buyer further acknowledges and agrees that certain Products sold by TEC D and other related technology and documentation are subject to export control laws, regulations and orders of the United States including but not limited to the Export Administration Regulations (“EAR”) administered by the Bureau of Industry and Security of the U.S. Department of Commerce (“BIS”), and sanctions regimes administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) and other countries. Buyer shall not, without prior U.S. government authorization, export, re-export, or transfer any Products, either directly or indirectly, (i) to any country, government or territory subject to a U.S. trade embargo, (ii) to any person or entity organized under the laws of, or located or resident in, any such country or territory, (iii) to any person or entity listed on the “Entity List” or “Denied Persons List” maintained by BIS or the list of “Specially Designated Nationals and Blocked Persons” maintained by OFAC (the “SDN List”), (iv) to any entity 50% or more owned, directly or indirectly, by one or more persons or entities listed on the SDN List, or (v) to any “military end-user” in Myanmar, the People’s Republic of China, Venezuela or Russia, or for any “military end use” therein, as defined by BIS. In addition, the Products shall not be exported, re-exported, or transferred to an end user engaged in activities related to weapons of mass destruction or any military organization or violation/abuse of human rights including through censorship, surveillance, detention, or excessive use of force. Such activities include, but are not limited to, activities related to design, development, production, or use of (a) nuclear materials, nuclear facilities, or nuclear weapons; (b) missiles or support of missiles projects; (c) chemical or biological weapons; (d) life support systems, human implantation, or any other application where Products’ failure could lead to loss of life and product damage. Buyer agrees it is responsible to obtain any license to export, re-export, or import as may be required and will obtain all such required export licenses from both the applicable Customs Authority and the U.S. Government before re-export of the Products to any country.
15.2 (a) Buyer confirms and undertakes not to have any business and other connections to terrorist, terrorist associations or other criminal or unconstitutional organizations.
(b) Buyer shall be responsible to cause its agents, employees, and end customers to comply with laws relating to trade-sanctions, economic/financial sanctions (including without limitation any relevant law, regulation, order, ordinance, decree, restrictive measure or other requirement having the force of law), foreign trade controls, export controls, no-proliferation, anti-terrorism and similar laws adopted by Singapore, the European Union, any EU member state, the United States of America or the United Nations (or its respective member states).
15.3 Upon export or re-export of the Products, Buyer shall have the sole responsibility to obtain all required approvals and licences from the U.S. Government and the appropriate local authorities. In the event Buyer proceeds with such re-export without obtaining the necessary licenses and approvals, Buyer shall be fully and solely liable for the Products and can seek no recourse whatsoever from TEC D. TEC D shall not be responsible in the event of any subsequent inquiry by any U.S. Federal agency with respect to the unauthorised re-export of the Products.
15.4 By entering into this Agreement, Buyer confirms that all information provided to TEC D about Buyer’s end users and/or the final destination of the Products (the “Information”) is complete and accurate and that Buyer is fully responsible for the accuracy of the same. In the event the Information provided by Buyer is found to be insufficient, fraudulent or incomplete, TEC D shall have no liability with respect to the same. Buyer will indemnify, defend and hold TEC D entirely harmless and TEC D shall be entitled to claim compensation from Buyer in the form of damages to the greatest extent for any loss of reputation and market standing that TEC D suffers due to the actions of Buyer.
15.5. This Section 15.5 only applies if Buyer is incorporated, residing or conducting business in Hong Kong or China. Buyer shall not sell, supply, export, re-export or transfer Products to any military end user or for use in any military end-use in the People’s Republic of China, Russia and Venezuela. A “military end user” means and includes the national armed services, the national guard and national police, government intelligence or reconnaissance organizations, or any person or entity that develops, produces, maintains or uses military items. A “military end-use” means and includes the incorporation of any product into a military item or defense article, or any items that support or contribute to the operation, installation, maintenance, repair, overhaul, refurbishing, development or production of a military item or defense article.
15.6. In the event that Buyer is aware of any facts or information raising the suspicion of non-compliance in relation to this Section 15, Buyer shall promptly inform TEC D without delay.
15.7 Buyer shall fully indemnify and hold harmless TEC D against any loss and damage suffered by TEC D or claims from a third party against TEC D including all costs and expenses as a result of Buyer’s breach of this Section 15.
16. ADVERTISING
Neither party shall use the name, trademarks, trade names or logos of the other without the other’s prior written consent.
17. NOTICES
Any notice required or permitted to be sent to either party or any agreement entered into pursuant hereto shall be deemed to have been given when in writing and delivered personally, delivered by overnight courier or mailed postage prepaid by registered or certified mail, return receipt requested, to the registered corporate address of such party or such other address which the parties may designate in writing.
18. GENERAL
18.1 This Agreement will be interpreted in accordance with the laws of the country in which the TEC D entity providing Products to Buyer is located. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. Any dispute arising out of this Agreement shall first be resolved by escalating the dispute to the parties’ respective business managers. Within fourteen (14) days of written notice of a dispute, the business managers shall meet in person or by phone and work in good faith to resolve the dispute including by way of appointment of a mutually agreeable mediator to resolve the dispute. If the parties are unable to resolve the dispute within such 14-day period (which can be extended upon the mutual written agreement of the parties), the parties agree to submit the dispute to the exclusive jurisdiction of the courts located in the city where the registered office of the TEC D entity providing Products to Buyer is situated.
18.2 Buyer may not assign any of its rights and obligations under this Agreement without the prior written consent of TEC D. The Agreement is binding on successors and assigns.
18.3 TEC D and Buyer are independent contractors and agree that this Agreement does not establish a joint venture or partnership.
18.4 Statements or advice (technical or otherwise) and Product classification data are provided as an accommodation to Buyer on an AS IS basis, and TEC D has no responsibility or liability for the content or use of such statements, advice, or data.
18.5 This Agreement contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior agreements, proposals and communications between the parties, written or oral, relating to the subject matter of this Agreement. The unenforceability of any of these terms or conditions will not affect the remainder of the terms or conditions. All obligations under this Agreement that by their nature extend beyond termination, including without limitation all monetary obligations of either party to the other under this Agreement, will survive termination, remain in effect and bind all successors and assigns. This Agreement may be modified by TEC D from time to time without notice to Buyer.
18.6 Buyer and TEC D agree to comply with applicable laws and regulations.
18.7 Buyer shall at all times comply with the applicable anti-corruption laws (including the United States Foreign Corrupt Practices Act). In its performance of this Agreement, Buyer shall not offer, pay, promise to pay or authorize the payment of money or any other thing of value to any person with the corrupt intent to influence such person in an effort to obtain or retain business.
18.8 Buyer shall make TEC D aware of any conflicts of interest, if any exists, including but not limited to any employee being a Politically Exposed Person (“PEP”), relative of/related to TEC D and/or otherwise if any business of the entity that Buyer beneficially owns, controls or has significant control in TEC D. PEP refers to an appointed or elected person who holds a legislative, executive, administrative or judicial office and performs a public (or foreign public) function, or a function for a public (or foreign public) agency or enterprise. Disclosure of any such conflicts of interest shall be made in writing or through oral communication to be acknowledged by TEC D. Buyer further represents that there are no such conflicts of interest, as concerning the same, pertaining to services to be rendered under this Agreement. However, if during the course of this Agreement, Buyer becomes aware of facts which constitute or may give rise to a conflict of interest, Buyer shall immediately advise TEC D, so that it may determine appropriate procedures for managing the same.
18.9 TEC D’s obligations under this Agreement may be performed by any affiliates, divisions, or subsidiaries of TEC D .
18.10 Buyer acknowledges that end user personal information is necessary for end users to access or use certain Products and agrees to provide such personal information as requested by Vendor to both TEC D and Vendor. Buyer represents and warrants that Buyer will comply with applicable data protections laws, including providing notice and properly obtaining the consent of the end user to provide said personal information to TEC D and Vendor for the purpose of fulfilling the transaction.