GOODS AND SERVICES
Acceptance of Order by Buyer.
These Standard Terms and Conditions (“Terms”) shall govern the order of any goods and services ordered by Buyer and provided by Seller (an “Order”). Acceptance of these Terms by Seller will be deemed to occur upon the earliest to occur of the following: (i) Seller’s receipt of a purchase order from Buyer referencing these Terms (the “PO”); (ii) Seller’s submission of an invoice to Buyer; (iii) delivery of any goods ordered to Buyer; (iv) Seller’s commencement of performance of services for Buyer; or (v) Seller’s acceptance of payment from Buyer for any goods or services. POs and invoices will be electronically transmitted by the parties either directly or through a designated third-party system. Any terms and conditions included in an invoice shall not apply to the Order. The parties acknowledge and agree that such transactions are legally valid and enforceable as a result of the use of available electronic technologies, which is for the mutual benefit of the parties.
Seller will furnish the goods or services in accordance with the price, quantity and delivery terms as stated in the PO. All PO prices will include any Taxes unless otherwise agreed in writing. Buyer will pay itemized, correctly-stated Taxes for applicable products or services, unless Buyer provides a valid tax exemption certificate. If legally required, Buyer will withhold Taxes from its payments to Seller and provide a withholding tax certificate.
All payment will be made in United States Dollars “$” and will be due within 60 days of receipt of an undisputed invoice. Seller will issue an invoice to Buyer only after Buyer has exercised its right of inspection as set forth below and accepted the goods or services.
Seller warrants that any goods sold by Seller to Buyer hereunder will (a) be of merchantable quality; (b) conform to applicable specifications furnished by Buyer; (c) will be free from defects in material and workmanship; (d) not exceed the pricing offered to other customers purchasing such goods; and (e) not infringe the rights of, or require consents from, any third party. Seller warrants that any services provided by Seller to Buyer hereunder will (x) conform to applicable specifications, descriptions or requirements furnished by Buyer (via email shall suffice); (y) not infringe the rights of or require consents from any third party and (z) be performed in a professional and workmanlike manner in accordance with recognized industry standards. Buyer’s approval of design furnished by Seller will not relieve Seller of its obligations under this paragraph. The warranties of Seller, together with its service guarantees, will run to Buyer and its agents, divisions, subsidiaries and affiliates.
Buyer reserves the right to cancel all or any part of the undelivered portion of an Order, without liability, if Seller does not make deliveries as specified, time being of the essence, or if Seller breaches any of these Terms, including, without limitation, the warranties of Seller. In such case Buyer will receive from Seller a complete refund of all amounts paid by Buyer in connection with the cancelled Order or portion of the Order.
Non-performance of either Party will be excused to the extent that non-performance is caused by an event or occurrence due to circumstances beyond the reasonable control of the non-performing party, including, without limitation, epidemics, pandemics, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes, other labour problems (excluding those involving such party’s employees), service disruptions involving hardware, software or power systems not within such party’s possession or reasonable control, and denial of service attacks (“Force Majeure Event”). In the case of such Force Majeure Event, Buyer, in its sole discretion, may either approve a revised price, quantity and delivery schedule or terminate the Order, in whole or in part, without liability.
Seller, its heirs, successors and assigns, will indemnify, defend, and hold Buyer, its agents, divisions, subsidiaries, customers and affiliates harmless against all claims, suits, judgments, court costs, attorney’s fees and other liabilities, demands or losses for (i) personal injury or property damage caused by goods and/or services furnished by Seller pursuant to the Order, (ii) any intellectual property claims arising from or related to the goods and/or services furnished by Seller pursuant to the Order, including alleged infringement or misappropriation of any patent, copyright, trademark or other intellectual property rights relating to the possession, modification, distribution, display, use or sale of the subject matter to which the Order related, and (iii) any allegations arising from or related to Seller’s breach of its obligations hereunder or violation of applicable law. Seller will have the right to be represented in the defence thereof by counsel of its own selection and at its own expense.
Limitation of Liability.
EXCEPT TO THE EXTENT ARISING FROM (A) A PARTY’S BREACH OF SECTION 14 (CONFIDENTIAL INFORMATION) OR ANY OTHER CONFIDENTIALITY OBLIGATIONS (INCLUDING UNDER A SEPARATELY EXECUTED CONFIDENTIALITY AGREEMENT BETWEEN THE PARTIES), (B) SELLER’S INDEMNIFICATION OBLIGATIONS IN SECTION 8 (INDEMNIFICATION), (C) EITHER PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD, OR (D) PERSONAL BODILY INJURY (INCLUDING DEATH OR ILLNESS) OR PROPERTY DAMAGE, NEITHER PARTY WILL BE LIABLE FOR INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING LOST OPPORTUNITIES OR PROFITS).
Seller warrants that in the performance of the Order, Seller will comply with all applicable federal, state, and local laws and ordinances and all lawful orders, rules and regulations thereunder, including, but not limited to, the Fair Labor Standards Act.
The PO (and these Terms) may not be assigned by Seller without Buyer’s written consent.
Title to goods will remain with Seller until delivery and actual acceptance thereof by Buyer, at which point title will pass to Buyer.
All information obtained by either party in connection with the Order or the parties’ dealings, including information which a reasonable person should know is confidential, is received in strict confidence by recipient, will remain confidential information of the disclosure of such information and will only be used and disclosed by recipient only to the extent necessary for performance under these Terms.
The parties will be independent contractors in their performance under these Terms, and nothing contained in these Terms will be deemed to cause either party to be deemed an employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
Seller will not issue a press release or other public announcement concerning these Terms, the relationship between the parties or referencing Buyer by name without obtaining Buyer’s prior written consent.
Whenever the term “Seller” is used herein, it refers to Borneo Data Inc., a Delaware corporation, its holding company, and other group companies
Whenever the term “Buyer” is used herein, it refers to the person or entity to which the PO is addressed.
Whenever the term “Taxes” is used herein, it refers to applicable federal, state and local taxes, fees, charges or similar governmental assessments, including sales and use taxes, value-added tax (“VAT”), goods and services tax (“GST”), and business and occupations taxes. For purposes of this definition, Taxes do not include any taxes that are imposed on or measured by the gross receipts, net income, licenses, commercial activity tax, franchise tax, property tax or payroll taxes of Seller.
Any notice from one party to the other will be in writing and either personally delivered or sent via reputable international express delivery courier or certified or registered mail, or by electronic mail, to such other party at the address specified in the PO, or at such other address as such party may from time to time designate in a notice to the other party. If a court of law finds any provision of these Terms unenforceable, the parties agree to remove the offending provision and all other terms will remain in full force and effect.
The failure of Buyer to insist upon the performance of any provision of the Order or to exercise any right or privilege granted to Buyer under this Order will not be construed as waiving any such provision, and the same will continue in force.
These Terms and the PO are to be interpreted in accordance with, and performance governed by the laws of the State of California, without regard to its conflicts of laws provisions. Exclusive jurisdiction and venue for any litigation arising under these Terms is in the federal and state courts located in the County of San Mateo, California.
Incorporation by Reference.
Unless an agreement or agreements have been executed between the Parties that govern the relationship between the Parties and the subject matter of this PO (the "Governing Agreements"), each party hereby agrees that these Terms are incorporated by reference into the PO and any other oral or written agreements (other than the Governing Agreements) that may exist between the parties, whether entered into prior to or contemporaneously with the Order (each, an “Other Agreement” and collectively, the “Other Agreements”). In the event of any conflict between the subject matter of these Terms and that of any Other Agreement, the Terms will automatically supersede such Other Agreement and control and take precedence with respect to such subject matter. Any waiver, modification or amendment of any provision of these Terms will be effective only if in writing and signed by both parties hereto. For the avoidance of doubt, any terms appearing on any agreement (other than the Governing Agreements), invoice, purchase or insertion order or other document, including terms and conditions in standard or pre-printed documents or on Seller’s website, product or application that are supplemental to or are in conflict with these Terms will be void and have no force or effect.
After these Terms terminate, the Terms will remain in effect with respect to any unfulfilled or partially fulfilled Orders entered into before the termination. This Section 23 (Survival) and the following Sections shall survive any termination or expiration of these Terms: Sections 5 (Seller Warranty), 8 (Indemnification), 14 (Confidential Information), 16 (Press Releases), 18 (Definitions), 19 (Notice; Severability), 20 (Waiver), 21 (Governing Law) and 22 (Incorporation by Reference).