The following are the terms and conditions governing the various Services provided by Sourceability through the Website:
Terms and Conditions of Sale: You may be a purchaser sourcing for electronic components. Sourceability has a global network that enables Sourceability to procure the components you want at the best possible price with the best-qualified supplier. For the current version of the Website, the existing Terms and Conditions of Sale and any other agreement relating to the purchase of goods from Sourceability, and which are entered into between you and Sourceability shall govern your purchase of goods from the Website except that the provisions in paragraph 2.3 below shall also apply.
Excess Management Terms: You may be a supplier who has excess inventory. Sourceability is able to match your excess inventory to the demand of its other customers. You will have to agree to the Excess Management Terms which will set out the terms and conditions of the sale of your excess inventory to Sourceability.
Usage of the Services during the Current Version
In the event that you do not use the Services on the Website, but instead send a purchase order directly to an account manager in Sourceability or to a support email on the Website email@example.com, Sourceability reserves the right to determine whether to handle your purchase order through the Website or outside of the Website.
In using the Services on the Website, you consent to Sourceability sending you electronic messages such as email, text messages, mobile push messages, or notices and other communications on this Website.
You agree to the following in the usage of the Website and the Services:
Sourceability shall not be liable in any way for any content posted by users of the Website and the Services, including but not limited to any errors or omissions in such content, or for any losses or damages of any kind incurred as a result of your use or reliance on any content posted on the Website or the platform for the Services. Sourceability shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to loss of profits, revenue, goodwill, data or other intangible losses (whether these are direct or indirect damages and even if Sourceability had been advised of such losses), howsoever caused, whether in contract or tort or otherwise arising out of or relating to (i) your use of the Website and the Services; or (ii) your procurement of or your sale of goods and services (including excess goods) using the platform for the Services; or (iii) any unauthorised access to or alteration of your data.
The seat of the arbitration shall be Singapore.
The Tribunal shall consist of one (1) arbitrator.
The language of the arbitration shall be English.
As you’re aware, on July 6 the United States enacted tariffs of 25% on a broad spectrum of items for which China is the country of origin. These items include many electronic components. Sourceability will by default be listing all costs incurred due to tariffs as itemized surcharges on invoices containing affected items. For customers who prefer to avoid line item charges, we will embed the costs into unit prices upon request. This policy is effective immediately and applies to all undelivered orders, including those already placed. We are working hard to mitigate the effects of the tariffs on our customers. We are devoted to transparency on this issue and encourage you to contact your Sourceability account manager with any questions or concerns. Unfortunately, we cannot guarantee that any particular parts will originate from specific countries. As a reminder, under the current tariff schedule items with a country origin of outside of China (including Taiwan and Hong Kong) will not incur these new tariffs.
Sourceability will be making every effort to ensure our quotes include tariff information that is as accurate and current as possible. Outside of the guidelines outlined above, we will as always use all tools at our disposal to create customized solutions for your unique supply chain situation. For example, customers may request shipments be facilitated by our Singapore or Hong Kong distribution centers, allowing you to be the importer of record into the United States. In this situation, tariffs would be paid by your company and would not be invoiced by Sourceability.
For more information about the tariffs, please visit USITC’s website. In the event that further tariffs are levied or the current tariffs expand to include additional countries, the above policies will remain the same.
"Buyer" means the buyer who purchases Goods from the Seller via the Sourcing Platform.
"Conditions" means these Terms of Sale and includes any special terms and conditions agreed in writing between Buyer and Seller.
"Contract" has the meaning described in Clause 2.2 below.
"Goods" means the goods, the details of which are published by Seller on the Sourcing Platform, and as selected by the Buyer in its online cart on the Sourcing Platform.
"Seller" means any of Sourceability USA or Sourceability SG, which will be the seller of the Goods to the Buyer and which will be specified in the Order Confirmation issued to the Buyer.
"Sourceability SG" means Sourceability SG Pte. Ltd., a company incorporated in Singapore and having its registered office address at 4 Battery Road, #25-01 Bank of China Building Singapore 049908.
"Sourceability USA" means Sourceability North America LLC, a Delware limited liability company and having its registered office address at 2711 Centerville Road, Suite 400, in the city of Wilmington, Delaware.
"Order" means the order placed by Buyer after Buyer has selected the Goods in its online cart and checked out such Goods on the Sourcing Platform.
"Order Confirmation" means the order confirmation issued by Seller’s Sourcing Platform to Buyer after Buyer has placed its Order on the Sourcing Platform.
Application of Conditions: These Conditions shall be the exclusive terms and conditions governing Buyer and Seller in the Buyer's purchase of Goods and Seller's sale of Goods via the Sourcing Platform. These Conditions shall override any contrary, different or additional terms (if any) contained on or referred to in an order form or other documents or correspondence from Buyer. No addition, alteration or substitution of any term in these Conditions shall bind Seller or form part of the Contract unless they are expressly accepted in writing by an authorized personnel of Seller.
Headings: The headings in these Conditions are for convenience only and shall not affect their interpretation.
Selection of Goods: After Buyer clicks and selects the Goods Buyer wishes to purchase from the Sourcing Platform, Buyer shall confirm the Goods in the online cart and submit such Order to Seller by clicking "Submit". All Orders made by Buyer shall be deemed to be an offer by Buyer to Seller to purchase the selected Goods in the online cart. Buyer shall not cancel any Goods for which he has placed an Order for. Buyer shall also not return any Goods to the Seller unless such return is made in accordance with these Conditions.
Terms of Payment: For Buyers who have entered into the Existing Agreement, the applicable terms of payment and consequences of non-payment or partial payment (if applicable) shall be as set out in the Existing Agreement. For all other Buyers, the terms of payment and credit term are as set out on the dashboard in Buyer’s Account. Unless stated otherwise by an authorized personnel of Seller, Buyer shall pay for the Goods before taking delivery of the Goods.
If Buyer does not make payment for the Goods within 15 calendar days of the date of the invoice issued by Seller for the relevant Contract, Seller shall have a right to either (i) terminate the Contract in respect of the relevant Order and Seller shall have no further liability or obligations towards Buyer, including Seller not being obliged to deliver any Goods under the Contract to Buyer or (ii) deliver the Goods to Buyer and claim the outstanding invoice amount from Buyer. Interest will be charged to Buyer at a rate of 8% per annum for each day beyond the stated deadline for payment up and until the date that payment in full for the Goods is made by Buyer to Seller, as well as attorney's fees reasonably incurred in relation to Seller making such claims for the outstanding invoice from Buyer.
Delays: Seller shall not be responsible for any delay in issuing its Order Confirmation or fulfilling such an Order, nor shall it be liable for any loss or damages resulting from such delays.
All taxes (other than income taxes), imposts or duties levied upon the Goods by or payable to any federal, state, municipal or other governmental authority upon the purchase price payable for the Goods hereunder shall be chargeable to and paid by Buyer, whether such taxes, imposts or duties are payable by Seller or otherwise. All price quotations for the Goods on the Sourcing Platform shall be exclusive of any such taxes, imposts or duties.
Buyer hereby grants to Seller a continuing security interest in the Goods which shall remain in full force and effect until the indefeasible payment or satisfaction in full of all of Buyer’s obligations to Seller hereunder. Buyer agrees that until such time, Seller is authorized to file or record any financing statement or other document without the signature or other consent of Buyer if permitted by applicable law.
In addition to all rights Seller may have with respect to the sale of Goods, Seller shall have the right at any time for credit reasons such as Buyer being unable to pay for the Goods within the given deadline for payment, because of Buyer's default under, or in repudiation of, these Conditions or any other contract between Seller and Buyer, to withhold shipment of the Goods, in whole or in part, and to recall Goods in transit, retake the same and repossess all Goods which may then be stored with Seller for Buyer's account, without the necessity of taking any other action. Buyer agrees that Buyer shall have no rights to all Goods so recalled, retaken, or repossessed. If Buyer has paid for the Goods, whether in full or in part, Seller may offset such payment against any indebtedness owed by Seller to Buyer and any other amounts then owed by Seller to Buyer, in which case, the Buyer shall have no rights to the Goods recalled, retaken or repossessed by Seller. The foregoing shall not be construed as limiting in any manner any of the rights or remedies of Seller arising under the Singapore Sale of Goods Act or any other applicable law as in effect on the date hereof, which are available to Seller upon any default by Buyer of any of the terms or conditions of these Conditions.
Once Buyer sends in its Order through the Sourcing Platform and Seller’s Sourcing Platform issues Buyer an Order Confirmation in respect of that Order, there shall be a Contract formed between Buyer and Seller in respect of the Goods described in the Order. Orders placed by Buyer shall be irrevocable and shall not be cancelled by Buyer. Any cancellation must be accepted by Seller in writing, and Seller shall have the right to retain all amounts paid to it by Buyer as a non-refundable deposit against payment of the purchase price therefor without further liability of Seller to Buyer. Buyer shall be responsible for all fees and expenses (including reasonable attorneys' fees and expenses) incurred by Seller as a result of the cancellation of any Order.
Buyer shall carefully inspect all Goods promptly after arrival of the Goods at the point of destination to which the Goods are to be shipped and report any quality or quantity shortages or defects to Buyer within ten (10) calendar days of such arrival of the Goods. Such a notice by Buyer to Seller shall be in a written form in a format prescribed by Seller, with a description of the alleged defect, photographs of the alleged physical defect and a test report for an alleged functional defect. CLAIMS THAT THE GOODS ARE NON-CONFORMING SHALL BE DEEMED WAIVED AND RELEASED BY BUYER UNLESS MADE IN WRITING WITHIN TEN (10) (CALENDAR) DAYS AFTER ARRIVAL OF THE GOODS AT THE POINT OF DESTINATION TO WHICH THE GOODS ARE TO BE SHIPPED. SELLER MAY CURE ANY DEFECT AS TO THE CONFORMITY OF THE GOODS BY REPLACEMENT THEREOF WITH CONFORMING GOODS.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, SELLER GIVES NO WARRANTY, EXPRESS OR IMPLIED AS TO DESCRIPTION, QUALITY, MERCHANTABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE, PRODUCTIVENESS, OR ANY OTHER MATTER, WHICH EXTENDS BEYOND THE DESCRIPTION OF THE GOODS STATED ON THE FACE OF THE ORDER CONFIRMATION.
Within three (3) years of the date of delivery of the Goods to Buyer, if Buyer wishes to claim any defect in the Goods delivered, Buyer shall delivery a written notice to Seller in the format prescribed by Seller, 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 Buyer, Seller shall have an opportunity for inspection of such Goods, or upon the request of Seller, Buyer shall give or procure that Seller is given immediate access to such Goods or return the Goods to Seller for inspection at Buyer's expense. THE LIABILITY OF SELLER IS LIMITED TO (i) THE REPLACEMENT OF DEFECTIVE GOODS, OR (ii) THE ALLOWANCE OF CREDIT FOR SUCH DEFECTIVE GOODS, OR (iii) THE ASSIGNMENT OF SELLER’S CLAIM AGAINST A THIRD PARTY FOR SUCH DEFECTIVE GOODS TO BUYER IF LEGALLY PERMITTED, AS IS DETERMINED IN THE SOLE DISCRETION OF SELLER. SELLER SHALL NOT BE OBLIGATED TO PAY FOR ANY TRANSPORTATION OR OTHER FEES, COSTS OR EXPENSES, OR FOR ANY LOSSES OR DAMAGES OF ANY KIND, WHETHER ARISING FROM A DELAY, BREACH OF WARRANTY OR ANY OTHER CAUSE WHATSOEVER. IT IS AGREED THAT UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR LOSS OF PROFIT (WHETHER IT IS A DIRECT OR INDIRECT LOSS), SPECIAL, INDIRECT, INCIDENTIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING HEREUNDER IN CONNECTION WITH THE SALE OF GOODS FROM SELLER TO BUYER.
Seller does not assume any responsibility in respect of the intellectual property rights in and to the Goods whatsoever. Seller does not warrant that there is no infringement of third party intellectual property rights in respect of the Goods. Buyer shall indemnify and hold harmless Seller 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. Seller 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 Seller. 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.
Seller shall have a right to amend these Conditions and once the amended Conditions are uploaded onto Sourcing Platform, the amended Conditions shall take effect immediately. In the event that Buyer does not agree to such amended Conditions, Buyer shall be entitled to cease using the Sourcing Platform to purchase Goods provided that any Order already placed by Buyer shall be paid for by Buyer in full.
These Conditions shall be binding upon and inure to the benefit of the successors and assigns of Seller and Buyer and may be novated or assigned to any successor organization or affiliate of Seller without written consent of Buyer but shall not be novated or assigned by the Buyer without prior written consent of Seller.
Each of the Buyer and Seller agree to comply with all applicable export control laws and regulations with respect to the Goods sold hereunder.
The failure or delay of Seller to exercise any of its rights hereunder shall not be construed to be a waiver of any such rights. No waiver by Seller of any breach of the Contract shall be effective as against Seller unless Seller shall have waived such breach in writing, and no waiver by Seller of one breach hereunder shall be deemed to be a waiver by Seller of any other breach not so waived.
The respective rights and obligations of Buyer and Seller arising out of the sale of Goods hereunder shall be governed by and construed in accordance with the laws of the Republic of Singapore. The United Nations Convention on Contracts for International Sale of Goods (CISG) shall not apply to these Conditions.
Any dispute arising out of or in connection with these Conditions, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the Arbitration Rules of the SIAC (“SIAC Rules”) for the time being in force, which rules are deemed to be incorporated by reference to this clause. The seat of the arbitration shall be Singapore. The Tribunal shall consist of one (1) arbitrator.
The language of the arbitration shall be English.
In the event Buyer fails to pay any amounts due under these Conditions, Buyer agrees to pay all costs incurred by Seller in collecting any such amounts, including without limitation reasonable attorneys' fees and costs including fees and costs arising from the representation of Seller in a bankruptcy proceeding of Buyer.
All notices and other communications to be given to Buyer or Seller hereunder with respect to the Goods shall be given either in writing by certified mail, express courier (such as Federal Express) or hand delivered to an officer of either Buyer or Seller, as the case may be. For the purposes of this clause, the address of Seller shall be that located on the Sourcing Platform and the address of Buyer shall be in accordance with such address submitted by Buyer when registering to use the Sourcing Platform.
These Conditions and the Existing Agreement (if any) constitute the entire agreement between Buyer and Seller relating to the subject matter hereof. There are no agreements, understandings, restrictions, warranties, or representations between Buyer and Seller relating to the subject matter hereof other than those as set forth herein.
WHEREAS, Sourceability is in the business of selling electronic components and has developed and maintains an e-commerce online platform on which electronic components can be offered for sale and purchased by users of the platform (the “Sourcing Platform”);
WHEREAS, Sourceability is in the business of purchasing electronic components from Vendors and selling such electronic components to its users via the Sourcing Platform or otherwise;
WHEREAS, Vendor desires to sell electronic components to Sourceability;
WHEREAS, Sourceability and Vendor desire to enter into this Agreement whereby Vendor will offer electronic components for sale to Sourceability on the terms and conditions set forth below;
WHEREAS, Sourceability will process purchase orders received from users of the Sourcing Platform and place purchase orders for Products with Vendor;
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
Capitalized terms not otherwise defined herein shall have the meanings set forth below.
“Affiliate” means, with respect to any Person, any other Person that, directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with such first Person at such time, where “Control” shall mean (a) the possession, directly or indirectly, of the power to direct or cause the direction of management and policies of a Person, whether through the ownership of voting securities, as a trustee or executor, by contract, or otherwise, or (b) the ownership, directly or indirectly, of more than fifty percent (50%) of the equity interest in a Person.
“Business Day” means all days excluding Saturdays, Sundays and any day which:
(a) if the relevant Sourceability entity is Sourceability USA, is a federal legal holiday in the United States or any day on which banking institutions in the State of Florida are authorized or required by applicable Law to close;
(b) if the relevant Sourceability entity is Sourceability HK, is a public holiday in Hong Kong;
(c) if the relevant Sourceability entity is Sourceability SG, is a public holiday in Singapore; and
(d) if the relevant Sourceability entity is Sourceability Germany, is a public holiday in Germany,
and any reference herein to days that does not specify “Business Days” shall be interpreted as referring to calendar days.
“Customer” means the customer as described in Section 3(a).
“Customer PO” means the purchase order described in Section 3(a).
“Government Authority” means any federal, state, county, city, local, municipal, foreign or other government authority or any department, agency, subdivision, court or other tribunal of any of the foregoing.
“Law” means, at any date of determination, any federal, state, local, foreign or other law, statute, code, ordinance, regulation or rule of any Government Authority in effect on such date.
“Order” means a purchase order for a Product placed by Sourceability with Vendor.
“Order Number” means the order number described in Section 3(a).
“Person” means any individual, company, corporation, partnership, joint venture, association, limited liability company, trust, estate, Government Authority or other entity having legal capacity.
“Products” means any electronic components and other products offered for sale to Sourceability by the Vendor from time to time and/or offered for sale to customers by Sourceability from time to time through the Sourcing Platform, as the context may require.
“PO Price” means the purchase price as described in Section 4(a).
“Sourceability” means any of Sourceability USA, Sourceability HK, Sourceability SG or Sourceability Germany, which will be the purchaser of the Products and which will be specified in the Order issued to Vendor. Any of the Sourceability entities described herein in this definition of "Sourceability" shall be entitled to sign this Agreement for and on behalf of Sourceability.
“Sourceability Facility” means Sourceability’s facility located at:
(a) if the relevant Sourceability entity is Sourceability USA, 8880 NW 20th Street, Suite J, Doral, FL 33172;
(b) if the relevant Sourceability entity is Sourceability HK, RM 1701-02 Westin Centre, 26 Hung To Road, Kwun Tong, Hong Kong;
(c) if the relevant Sourceability entity is Sourceability SG, 38 Joo Seng Road, #05-02, Singapore 368361; and
“Sourceability HK” means [Sourceability HK Limited].
“Sourceability SG” means Sourceability SG Pte. Ltd., a Singapore limited liability company.
“Sourceability USA” means Sourceability North America LLC, a Delaware limited liability company.
“Vendor Database” means the database which Sourceability provides to Vendors to upload information on the Products in accordance with Section 2 below, such database as may be online or otherwise to which access is provided to Vendor and as may be changed from time to time.
“Warranty Period” means, for each Product, the longer of (a) the warranty period required by applicable law; or (b) in the case of Products which are traceable 100% to the original manufacturer as to its components, three (3) years from the date the Product is delivered to the Sourceability Facility and, in the case of Products which are not traceable to its original manufacturer as to its components, one (1) year from the date the Product is delivered to the Sourceability Facility.
Vendor's Provision of Information to Sourceability.
(a) Vendor shall periodically provide the following information to Sourceability : (i) manufacturer part/code number (MPN), (ii) manufacturer, (iii) price (the “Product Price”), (iv) quantity, (v) date code , (vi) lead time, packaging type and packaging condition.
(b) Vendor shall ensure the accuracy of all information provided for the Products at all times and promptly inform Sourceability when such Products are no longer available for sale.
Vendor shall update Sourceability on the Product Price periodically. In the event that a Customer PO is placed with Sourceability and the Product Price is increased by the Vendor prior to the placement by Sourceability of an Order for such Product with Vendor, the Product Price listed on the Vendor Database or provided to Sourceability, as the case may be, on the date of the Customer PO shall be used for the price of Product subject to such Order.
(c) Vendor shall provide the information required under this Section 2 to Sourceability in such format as may be required by Sourceability and/or by uploading such information onto a Vendor Database as required by Sourceability. In the event that Vendor chooses not to upload information on its available Products to the Vendor Database, Vendor shall periodically provide to Sourceability the information on the Products as described in Section 2) above and permit Sourceability to upload such information onto the Vendor Database.
(d) Sourceability shall have the right to use the information uploaded by Vendor onto the Vendor Database or provided to Sourceability, as the case may be, and modify it as it deems necessary for the purposes of Sourceability selling the Products on Sourcing Platform to the Customers.
Placement of Orders.
(a) Upon receipt of a purchase order from a registered user of the Sourcing Platform (the “Customer”) for a Product (the “Customer PO”), Sourceability will place an Order with Vendor for the purchase of the Products. Such Order will specify the Product, the quantity, the delivery date, Sourceability’s Order number (the “Order Number”), the date of the Customer PO and the Sourceability Facility where the Product will be shipped to but will not include any information regarding the identity of such Customer.
(b) Upon receipt of an Order, Vendor shall ascertain if it is able to supply the Products to Sourceability in accordance with the terms of the Order, and if so, Vendor shall issue an Order confirmation.
(c) An Order confirmation shall include the Order Number. Vendor shall reference the Order Number in all correspondence regarding the Order.
(d) Vendor shall provide all Product information requested by Sourceability within three (3) business days.
(e) No change to any Order is binding on Sourceability unless an authorised representative of Sourceability has agreed to such change in writing.
(f) In addition to any remedies that may be provided under this Agreement, Sourceability may terminate an Order with immediate effect upon written notice to the Vendor, either before or after the acceptance of the Products, if the Vendor has not performed or complied with any of the terms of the Agreement, in whole or in part. If the Vendor 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 an Order upon written notice to the Vendor. If Sourceability terminates this Order for any reason, then (i) the Vendor’s sole and exclusive remedy is payment for the Products received and accepted by Sourceability prior to the termination, and (ii) the Vendor shall immediately refund to Sourceability the Price paid for all Products not accepted by Sourceability.
Payment of Purchase Price.
(a) The purchase price charged to Sourceability for the Order (the “PO Price”) shall be the Product Price listed on the Vendor Database or as provided to Sourceability, as the case may be, on the date of the Customer PO.
(b) In addition to any right of set-off provided by law, Sourceability shall be entitled at any time to set-off against sums payable by Sourceability to Vendor any amounts for which Sourceability determines Vendor is liable to Sourceability or its Affiliates under any Order or other agreements with Vendor. Sourceability may do so upon prior notice to Vendor. If any sums payable by Sourceability or any amounts are in different currencies, Sourceability may convert either sum at a rate of exchange in accordance with its business practice for the purpose of the set-off. Sourceability agrees to provide accounting of all calculations to Vendor upon written request. The rates, amounts calculated and the records maintained and/or certified by Sourceability shall be conclusive evidence of the matters to which it relates except in the event of manifest error.
(c) Payment for Products shall not constitute acceptance of non-conforming or defective Products nor limit or affect any rights or remedies of Sourceability.
(a) Vendor shall invoice Sourceability for the PO Price for the Products upon delivery of the Products to the Sourceability Facility.
(b) Each invoice shall include (i) the Order Number, (ii) the date of the Order, (iii) the manufacturer part number (MPN), (iv) the quantity, (v) the manufacturer and (vi) any other information that Sourceability may reasonably require.
(a) Vendor shall ensure that the Products are properly packed and secured in such manner as to enable them to reach their destination in good condition;
(b) Each delivery of Products shall be accompanied by a delivery note with (i) the Order Number (ii) the quantity of Products, and (iii) the manufacturer part number (MPN), (iv) the Product part code number and all other information as requested by the Sourceability.
(c) Vendor shall give written notice of shipment to Sourceability when the Products are delivered to a carrier for transportation. Vendor 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 Products to Sourceability, on the same Business Day Vendor delivers the Products 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 that Order.
(d) Vendor shall ship the Products to the Sourceability Facility during regular business hours prior to the delivery date but not earlier than two (2) Business Days prior to such date. Timely delivery of the Products is of the essence. If the Vendor fails to deliver the Products in full on the delivery date, Sourceability may terminate that Order immediately by providing written notice to the Vendor. Acceptance of late delivery by Sourceability shall not be deemed a waiver of the Vendor’s obligation to indemnify Sourceability.
(e) If Vendor delivers more or less than the quantity of Products ordered, Sourceability may reject all or any excess Products. Any such rejected Products shall be returned to Vendor at Vendor’s risk and expense. If Sourceability does not reject the Products and instead accepts the delivery of Products at the increased or reduced quantity, the Price for the Products shall be adjusted on a pro-rata basis.
Title and Risk of Loss.
Unless otherwise agreed in writing between the parties, the Products shall be delivered DAP (Sourceability Facility) Incoterms ® 2010 and title to the Products passes to Sourceability upon delivery to the Sourceability Facility. Unless expressly stated otherwise herein, risk shall be borne by Vendor and Sourceability in accordance with the relevant Incoterm stated above.
Inspection, Testing and Acceptance.
(a) Sourceability will inspect the Products within three (3) business days upon arrival at the Sourceability Facility.
(b) If Vendor delivers the incorrect or non-conforming product, such products shall be returned to Vendor at Vendor’s risk and expense.
Warranties and Remedies.
(a) Products Warranties. Vendor warrants that the Products shall during the Warranty Period (a) conform to the Order in all respects; (b) be free from all defects in design, workmanship and materials during the Warranty Period and be of highest quality and workmanship; (c) conform to all applicable laws in countries where the Products (or goods into which the Products are incorporated) are to be sold, including without limitation, in the case of Products used in connection with the manufacture of motor vehicles, the National Traffic and Motor Vehicle Safety Act, United States motor vehicle safety standards and European Union Directive 2000/53/EC; (d) not infringe, misappropriate or violate the intellectual property rights of third parties; (e) be free and clear of any and all liens and encumbrances of any nature, with title vesting in Vendor in accordance with the preceding; (f) properly function and be suitable for the purpose held out by Vendor or made known to Vendor by Sourceability expressly or by implication; and (g) in respect of such Products which are traceable, are traceable 100% to the original manufacturer of their components.
(b) If the Products are defective or otherwise do not comply with the warranties provided hereunder, then, without limiting any of its other rights or remedies, and whether or not Sourceability has accepted the Goods, Sourceability, may exercise any of one or more of the following remedies:
(i) return the non-conforming Products to the Vendor for a refund of the full invoice price plus payment of transportation charges for such defective or otherwise non-conforming Products;
(ii) have Vendor replace the defective or non-conforming Products with non-defective and conforming Products;
(iii) to recover from the Vendor any costs incurred by Sourceability in obtaining substitute Products from a third party; and
(iv) to claim damages and any loss, costs or expenses incurred by Sourceability which have arisen from the defective or non-conforming Products.
Vendor shall indemnify, defend and hold harmless Sourceability, its Affiliates and their directors, officers, agents, successors and assigns (collectively “Indemnified Parties”) from and against any and all costs, fees, penalties, expenses, damages, attorneys' fees and all other liabilities whatsoever (“Losses”), arising out of any claim against any Indemnified Party which arises from or relates to any of the following:
(a) Any noncompliance or breach of any representation, warranty or obligation under this Agreement;
(b) Infringement or misappropriation of any intellectual property right relating to the Products to the extent that the claim is attributable to the acts or omissions of the Vendor, its employees, agents or subcontractors;
(c) Any death, personal injury or damage to property arising out of or in connection with defects of the Products;
(d) Any breach, negligent performance or failure or delay in performance of this Agreement by the Vendor, its employees, agents or subcontractors; and
(e) Damages to property or personal injuries to the extent arising from or in connection with Vendor’s work on any of premises of Sourceability.
(a) 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 the Vendor, 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, the Vendor shall promptly return all documents and other materials received from Sourceability. Sourceability shall be entitled to injunctive relief for any violation of this Section 11, and the Vendor agrees that damages will not be an adequate remedy for breach of this Section 11. This Section 11 shall not apply to information that is: (a) in the public domain; (b) known to the Vendor at the time of disclosure; or (c) rightfully obtained by the Vendor on a non-confidential basis from a third party.
(b) The terms of this Agreement shall be deemed to be Confidential Information of Sourceability.
Term and Termination.
(a) The term of this Agreement shall commence on the Effective Date and, subject to the other provisions of this Section 12, shall continue in effect until either Party provides the other Party no less than thirty (30) days prior written notice of termination (the “Term”).
(b) If either Party (such Party, the “Breaching Party”) has materially breached a provision of this Agreement then the other Party (the “Non-Breaching Party”) shall have the right to terminate this Agreement by notice of termination to the Breaching Party (the “Notice of Termination”), which termination shall be effective upon receipt by the Breaching Party of such notice.
(c) If either Party (i) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise become subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, (ii) makes or seeks to make a general assignment for the benefit of its creditors, or (iii) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business, then the other Party shall have the right to terminate this Agreement by notice of termination to such Party, which termination shall be effective upon receipt of such notice.
(d) Subject to the following sentence, termination of this Agreement shall also terminate any outstanding purchase orders and Special Conditions pursuant to this Agreement, but shall not affect the liability of either Party for breaches of this Agreement occurring prior to such termination.
(e) Without limiting the foregoing, the following provisions shall survive termination of this Agreement: Sections 4, 5, 9, 10, 11 and all subsections of Section 13.
Governing Law; Disputes.
(a) This Agreement shall be governed by and construed in accordance with the laws of the Republic of Singapore. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply to this Agreement.
(b) Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the Arbitration Rules of the SIAC (“SIAC Rules”) for the time being in force, which rules are deemed to be incorporated by reference to this clause. The seat of the arbitration shall be Singapore. The Tribunal shall consist of one (1) arbitrator. The language of the arbitration shall be English.
Notices. Any notices, demands or other communication to be sent or given hereunder by either Party shall in every case be in writing and shall be deemed properly served if (a) delivered personally to the recipient, (b) sent to the recipient by reputable express courier service (charges paid), (c) mailed to the recipient by registered or certified mail, return receipt requested and postage paid, or (d) sent via facsimile or email at the facsimile number or email address set forth below. Date of service of such notice shall be (i) the date such notice is personally delivered, (ii) three (3) days after the date of mailing, if sent by certified or registered mail, (iii) the date on which delivery is guaranteed by the reputable express courier, if sent by overnight courier or (iv) the date of transmission, if sent via facsimile or email at the facsimile number or email address set forth below by 5:30 p.m. (recipient’s time) on a Business Day or, if after 5:30 p.m. (recipient’s time), the next succeeding Business Day. Such notices, demands and other communications shall be sent to the addresses indicated below or such other address or to the attention of such other person as the recipient has indicated by prior written notice to the sending party in accordance with this Section:
Sourceability North America LLC
8880 NW 20th Street
Doral, Florida 33172
Sourceability HK Limited
Rm 1701-02 Westin Centre,
26 Hung To Road, Kwun Tong, Hong Kong
Sourceability SG Pte. Ltd.
138 Joo Seng Road, 368361 Singapore