Supplier agrees to be bound by and to comply with all Terms and Conditions
set forth herein for the goods, deliverables, products, software, personal
property, and/or applicable related services (the “Deliverables”) described
in the purchase order (this or the “Order”). The Terms and Conditions shall
be deemed to be incorporated into the Order and shall constitute the only
terms and conditions thereto, and accordingly the sale of such Deliverables
will be governed exclusively by the Terms and Conditions; notwithstanding,
these Terms and Conditions shall be superseded in the event a separate
agreement, intended to govern the purchase of Deliverables, has been executed
between GQ and Supplier. Acknowledgement of this Order, including without
limitation, by the provision of the Deliverables called for by this Order
or acceptance of payment, shall be deemed acceptance of this Order including
without limitation, the Terms and Conditions. The Terms and Conditions
shall take precedence over any other document connected with this transaction
unless such alternative terms are expressly agreed to in a separate written
agreement executed by GQ and Supplier. Any terms and conditions proposed
by Supplier in acknowledging or accepting the Order which are different
from or in addition to the Terms and Conditions shall not be binding upon
GQ and shall be void and of no effect.
PRICE AND TERMS OF PAYMENT.
To be valid, Supplier’s invoices must contain GQ’s Order number and a
full description of the Deliverables, the quantity, unit price, services
price and total price, and the delivery address. Subject to Section 9,
valid Supplier invoices will become due for payment by GQ, net sixty (60)
days from GQ’s receipt of the Deliverables or the date of receipt
of a correct invoice (whichever is later) unless otherwise indicated
on the face of the Order. The date of invoice will not predate the date
of delivery of the relevant Deliverables. Supplier will send invoices to
GQ’s address designated on the face of the Order or to such other address
as GQ may specify in writing. Notwithstanding anything to the contrary
contained in the Order, (a) invoices submitted more than six (6) months
after GQ’s receipt of Deliverables will be rejected and no payment shall
be made and (b) GQ shall have no liability whatsoever under the Order for
amounts due under any such invoice. Currency shall be in United States
dollars unless otherwise identified on the face of the Order.
-
TAXES.
Amounts payable to Supplier under this Agreement are exclusive of
any transaction taxes (including sales, use, consumption, value-added and
similar transaction taxes) that may be imposed in connection with
fees received by Supplier pursuant to this Agreement. For any payments
made under this Agreement, Supplier may charge and GQ will pay applicable
transaction taxes, provided that such transaction taxes are stated on the
original invoice related to the Service rendered, that Supplier timely
provides to GQ and Supplier’s invoices state such transaction taxes separately.
GQ may provide Supplier with an exemption certificate or equivalent information
acceptable to the relevant taxing authority, in which case, Supplier will
not charge and or collect the transaction taxes covered by such certificate.
GQ may deduct or withhold any withholding taxes that GQ may be legally
obligated to deduct or withhold from any amounts payable to Supplier under
the Agreement, and payment to Supplier as reduced by such deductions or
withholdings will constitute full payment and settlement of amounts payable
to Supplier under the Agreement. If a tax authority subsequently finds
that GQ’s withholding tax payment was insufficient and requires additional
payments, GQ will make such payments and Supplier will reimburse GQ for
such additional withholding tax payments. Within a reasonable period,
GQ will provide Supplier with documentation evidencing its withholding
tax payments.
-
PACKAGES
. Packages must bear GQ’s Order number. No charges for packaging will
be payable by GQ unless otherwise agreed in writing.
-
TRANSPORTATION.
Deliverables will be shipped in accordance with the transportation instructions
on the face of the Order. The Deliverables will be shipped Delivered Duty
Paid GQ’s facility (DDP Incoterms 2010) unless other transportation arrangements
are pre-approved by GQ in writing. A paid freight bill or equivalent must
support charges for such other transportation arrangements. For international
shipments, Supplier will provide all documentation and data elements required
for timely customs entry. Shipping documentation (commercial invoice) will
include the harmonized tariff code as provided by GQ, the country of origin,
GQ part number, manufacturer part number, unit price and quantity per line
and a customs compliant description.
-
TITLE, PROPERTY AND RISK.
All title to, property in and risk in Deliverables will pass to GQ free
of all liens and encumbrances on acceptance of the Deliverables as set
out in Section 9.
-
LICENSE.
To the extent that any Supplier’s intellectual property is incorporated
into or necessary to use any Deliverable, Supplier hereby grants to GQ
a non-exclusive, worldwide, royalty-free, transferable right and license,
solely to the extent necessary for GQ to use the Deliverables to obtain
the benefit of the Deliverables.
-
DELIVERY/LATE SHIPMENTS.
Supplier will deliver the Deliverables at the place, date and time specified
in this Order, unless otherwise agreed by both parties. If Supplier fails
to meet the delivery schedule by more than five (5) days, then notwithstanding
Section 13, Supplier shall notify in writing and GQ will be entitled to
either (a) terminate the Order for such Deliverables and for any other
Deliverables the intended use of which has consequently been delayed or
prevented; or (b) make alternate arrangements for the transportation of
the Deliverables. Supplier will reimburse GQ for any additional costs that
GQ incurs in purchasing replacement Deliverables or in arranging for alternate
transportation.
-
RESCHEDULING/CANCELLATION.
GQ may reschedule any delivery of Deliverables without liability. GQ may
cancel this Order (if outstanding) or part of this Order without liability
by giving five (5) business days prior written notice to Supplier. If GQ
cancels this Order on less than five (5) business days’ notice and Supplier
cannot, after exercising its commercially reasonable efforts, use the Deliverables
in the course of its business or dispose of them, GQ will compensate Supplier
in an agreed-to amount not to exceed the actual purchase price of the Deliverables.
In no event will GQ have any liability in respect of any order cancelled
pursuant to Sections 7, 9 or 13.
-
ACCEPTANCE/INSPECTION/NON-COMPLYING DELIVERABLES.
The Deliverables shall be subject to inspection and acceptance rights.
Payment shall not constitute GQ’s acceptance of the Deliverables nor impair
GQ’s right to inspect the Deliverables. GQ will not be required under any
circumstances to take any action or make any payments that GQ believes,
in good faith, that a breach of any of the Terms and Conditions in this
Order has occurred or may occur, in which case GQ may withhold any payment
of fees, commission, compensation, reimbursement, or any other payment
until such time as GQ has satisfied that no breach has occurred or will
occur. GQ shall not be liable to Seller for any claim, losses, or damages
whatsoever related to
G
Q’s withholding of any payment under this provision. If GQ notifies Supplier
in writing at any time within ninety (90) days of delivery that the Deliverables
do not comply with the provisions of this Order and/or any Deliverable
description and/or documentation, GQ may, at its option, (i) withhold any
payment under that Order to the Supplier; (ii) require that Supplier either
repair or replace the Deliverables or re-perform the Deliverables with
all possible speed (which will not to exceed standard lead time for the
Deliverables) and without cost to GQ (including any relevant freight and
duty costs incurred); and/or (iii) cancel the Order forthwith without liability
or payment obligation for the Deliverables. GQ shall have the additional
option during such period of returning the Deliverables to Supplier at
Supplier’s cost and receiving a credit of the purchase price. Notwithstanding
the above, in cases whereby there are any defects in the Deliverables or
any failures do not or would not become apparent until after use, GQ shall
be entitled at its sole option to exercise its right in the above (i) and
(ii) even after a reasonable period of use or resale of the same to the
fullest extent as permitted by applicable law.
-
SELLER’S REPRESENTATIONS AND WARRANTIES.
Supplier represents and warrants that all Deliverables provided by it
will: (a) be new and unused; (b) be free of defects in materials, workmanship
and design; and (iii) not infringe a third party’s intellectual property
rights; (c) comply with the specifications set out in the Order and any
samples provided by either party to the other and agreed to by GQ; (d)
comply with GQ’s quality assurance procedures as provided to Supplier from
time to time; (e) comply with any applicable quality specification and
documentation; (f) be manufactured, handled, packaged and transported in
accordance with all applicable laws, regulations, guidelines and industry
standards; (g) not include any substance restricted for use in electrical
or electronic equipment by any laws, or regulations, other than permitted
by the foregoing, and any guidelines or industry standards; and the Supplier
also represents and warrants that (i) it has the necessary licenses and
rights to provide the Deliverables; (ii) in case the Deliverables are of
nature of intangible services, it will perform such services in a professional
and workmanlike manner, conforming to industry standards and practices;
and (iii) its performance of any of such services will be in compliance
with all applicable laws, rules, and regulations. If there is a breach
of Supplier’s representations or warranties herein, GQ will be entitled
to terminate this Order without liability.
-
INDEMNITY.
Supplier will indemnify, save harmless and defend GQ from and against
any and all third party claims, actions, losses, or damages (including,
without limitation, reasonable legal fees and expenses) (collectively,
“
Losses
”) which GQ, may suffer or incur as a result of (i) any negligent act
or omission or willful misconduct of Supplier, its employees, representatives,
or subcontractors relating to the Order; (ii) any breach of Supplier’s
representations, warranties or obligations under the Order; (iii) any actual
or alleged infringement by the sale or use of the Deliverables of any intellectual
property rights of any other person, (iv) any breach by the Supplier of
these Terms and Conditions or of any terms or obligations on its part implied
by the Sale of Goods Ordinance (Cap 26) or by any equivalent statute, statutory
provision or common law relevant to these Terms and Conditions or to the
Deliverables ,or (v) any personal injury to or the death of any person
or of any loss or destruction of or damage or property occurred in connection
with any Deliverables (in case of intangible services or work) executed
by the Supplier under the Order or shall be alleged to be attributable
to any defect in the Deliverables (in case of physical goods). This indemnity
shall not be prejudiced or waived by exercise of any rights under Section
7, 9 or 13.
-
INSURANCE.
Supplier shall be solely responsible for maintaining for itself and requiring
its subcontractors, employees, and agents to maintain such adequate health,
auto, workers’ compensation, unemployment compensation, disability, liability,
and other insurance, including blanket contractual coverage insuring claims
resulting from the indemnification of GQ required by this Order, as is
required by law or as is the common practice in Supplier’s trades or businesses,
whichever affords greater coverage. Upon request, Supplier shall provide
GQ with certificates of insurance or evidence of coverage before commencing
performance under this Order. Supplier shall provide adequate coverage
for any GQ property under the care, custody or control of Supplier or its
subcontractors, employees, and agents. Whenever Supplier has in its possession
property of GQ, Supplier shall be deemed an insurer thereof and shall be
responsible for its safe return to GQ.
-
TERMINATION.
At any time, GQ, at its option, may terminate this Order with or without
cause, in whole or in part by written notice, any pre-paid fees will be
pro-rated from the termination date and returned to GQ within thirty (30)
days. GQ shall be responsible for any undisputed fees accrued prior to
the termination date.
-
NOTICES.
All notices must be in writing sent to the parties at their addresses
set out in the Order, as same may be amended by notice in accordance with
this provision. A notice will be deemed to have been given on the third
day after mailing if it is sent by mail, on the date of transmission in
the case of facsimile or electronic data interchange, or on the date of
delivery if it is delivered by hand.
-
LIMITATION OF LIABILITY. IN NO EVENT WILL GQ BE LIABLE FOR ANY
SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION
WITH THIS ORDER, EVEN IF GQ HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY
OF SUCH DAMAGES. IN ANY CASE, GQ’S AGGREGATE LIABILITY UNDER THE ORDER
WILL NOT EXCEED THE FEES THAT GQ PAID TO SUPPLIER FOR THE PROVISION OF
THE DELIVERABLES.
-
CONFIDENTIAL INFORMATION.
Supplier will hold all Confidential Information in confidence, not to
use it in any way, commercially or otherwise, except to provide the products
and services with respect to the Deliverables, and not to disclose it to
others. Supplier further agrees it shall protect the Confidential Information
in strict confidence (including, without limitation, implementing and enforcing
security procedures), to prevent the unauthorized use, dissemination or
publication of Confidential Information as it would use to protect its
own confidential information of like nature. Supplier will immediately
disclose to GQ any breach of this Section 16 and will cooperate with any
investigations and notices required as a result of such breach. For purposes
of this Order, “Confidential Information” means and will include without
limitation: (i) any information, materials or knowledge regarding GQ and
its business, financial condition, products, programming techniques, customers,
employees, suppliers, technology or research and development that is disclosed
to Supplier or to which Supplier may have access in connection with the
provision of the products and/or services with respect to the Deliverables;
and (ii) the existence and Terms and Conditions of this Order. Confidential
Information will not include, however, any information that is or becomes
part of the public domain through no fault of GQ or its personnel or that
GQ regularly gives to third parties without restrictions on use or disclosure.
-
INDEPENDENT CONTRACTORS.
The relationship between GQ and Supplier is one of independent contractors,
and neither party will at any time or in any way represent itself as being
a dealer, agent or other representative of the other party or as having
authority to assume or create obligations or otherwise act in any manner
on behalf of the other party.
-
COMPLIANCE.
Supplier shall comply with all laws, rules, and regulations applicable
to the Deliverables under this Order, including without limitation government
export control and privacy and data protection laws.
-
SUBCONTRACTING, ASSIGNMENT.
Supplier may not assign or subcontract any of its obligations hereunder,
in whole or in part, without the prior written consent of GQ. If such consent
is acceptable, Supplier will be responsible and fully liable for its subcontractors’
performance under this Order. Supplier may not assign this Order without
the prior written consent of GQ, and any purported assignment without such
consent shall be null and void.
-
BACKGROUND CHECK
. To the extent permitted by law, any Supplier personnel, or employees
of Supplier’s subcontractors assigned to provide Deliverables on-site at
GQ’s offices or given access to GQ’s network systems will have undergone
a diligent background check, conducted by Supplier or at Supplier’s choosing
a third party specializing in background investigations, but must be conducted
in full compliance with all laws for the applicable jurisdiction.
-
BOOKS AND RECORDS; INSPECTION
.
During the term of this Order and for a period of three (3) years
after the provision of the Deliverables, Supplier shall maintain such books
and records as are necessary to demonstrate and confirm Supplier’s compliance
with its obligations under this Order. GQ shall, upon reasonable notice,
have the right to inspect and review Supplier’s books and records to confirm
Supplier’s aforementioned compliance.
-
PUBLICITY.
Supplier will not, without first obtaining GQ’s consent in writing, advertise
or otherwise disclose that Supplier has furnished or agreed to furnish
Deliverables to GQ under this Order.
-
GQ MATERIALS.
If GQ provides data, documentation, information, materials, parts or tools
(“
Materials
”) for use by Supplier to perform work under the Order, Supplier will
use such Materials solely for the purposes of this Order. All Materials,
procured or paid for by GQ will at all times remain the property of GQ,
and will be returned promptly or destroyed at GQ’s sole option upon termination
of the Order. Upon written request, Supplier shall certify compliance with
this Section 23.
-
FINANCING.
GQ may secure any financing it deems appropriate for the Deliverables
and if applicable, such financing parties will be third party beneficiaries
under this Order.
-
WAIVER/AMENDMENT.
No provision of this Order will be deemed waived or amended and no breach
or default excused unless the waiver or amendment is in writing and signed
by the party issuing it. Any obligations, which by their nature survive
beyond the performance, termination or expiration of the Order, will remain
in full force and effect. GQ’s rights and remedies hereunder are in addition
to any other legal or equitable rights and remedies available to GQ.
-
SEVERABILITY.
If any provision contained in the Order is, for any reason, held to be
invalid or unenforceable in any respect under the laws of any jurisdiction
where enforcement is sought, such invalidity or unenforceability will not
affect any other provision of this Order and this Order will be construed
as if such invalid or unenforceable provision had not been contained herein
in that jurisdiction.
-
ENTIRE AGREEMENT.
The Order constitutes the complete agreement between GQ and Supplier and
supersedes any prior representation, promise or proposal relating to the
subject matter hereof. No other document provided by Supplier, including
Supplier’s quotation and acknowledgement forms, will be part of the Order,
even if referred to, unless specifically agreed to by GQ as evidenced by
documentation executed by the parties. This Order may not be supplemented,
modified or governed by any shrink-wrap or click-wrap agreement or any
confirmation, acknowledgment, or other sales or shipping form of Supplier
unless GQ first agrees in writing that is not an electronic communication
to be bound by such purported agreements. Any modification to this Order
must be in writing duly authorized by GQ.
-
APPLICABLE LAW.
These Terms and Conditions and this Order will be governed by and construed
in accordance with the laws of Hong Kong and the parties irrevocably submit
to the exclusive jurisdiction of the Hong Kong courts.