RingCentral Terms And Conditions Of Purchase
THESE RINGCENTRAL TERMS AND CONDITIONS OF PURCHASE ("TERMS AND CONDITIONS") CONSTITUTE THE ENTIRE AGREEMENT BETWEEN RINGCENTRAL CORPORATION ("RINGCENTRAL") AND THE SUPPLIER INDICATED ON THE FACE HEREOF ("SUPPLIER") WITH RESPECT TO THE PURCHASE OF ANY PRODUCT OR SERVICE BY RINGCENTRAL FROM THE SUPPLIER. SUCH TERMS AND CONDITIONS ARE EXCLUSIVE, AND RINGCENTRAL REJECTS ANY AND ALL TERMS AND CONDITIONS PROPOSED BY SUPPLIER. DELIVERY OF THE PRODUCTS INDICATES SUPPLIER'S ACKNOWLEDGEMENT OF AND ASSENT TO THE TERMS AND CONDITIONS.
1. Definitions In this document:
(a) "Agreement" shall mean the binding contract formed as described in Section 2.1 herein; (b) "Goods" shall mean both tangible and intangible goods, including software and related documentation. References to Goods shall, where appropriate, be deemed to include Services; (c) "RingCentral" shall mean the purchasing RingCentral legal entity identified in RingCentral' offer; (d) "Services" shall mean the services to be performed by Supplier for RingCentral under this Agreement; (e) "Supplier" shall mean each person or entity (including, where relevant, its affiliates) that enters into an Agreement.
2.1. These General Conditions of Purchase, together with the relevant Purchase Order issued by RingCentral, set forth the terms of RingCentral' offer to Supplier. When Supplier accepts RingCentral' offer, either by acknowledgement, delivery of any Goods and/or commencement of performance of any Services, a binding contract shall be formed ("this Agreement"). Such Agreement is limited to these General Conditions of Purchase as specified on the face and reverse of this document, the relevant Purchase Order and any attachments. RingCentral does not agree to any proposed addition, alteration, or addition by Supplier. This Agreement can be varied only in writing signed by RingCentral. Any other statement or writing of Supplier shall not alter, add to, or otherwise affect this Agreement.
2.2. RingCentral is not bound by and hereby expressly rejects Supplier's general conditions of sale and any additional or different terms or provisions that may appear on any proposal, quotation, price list, acknowledgment, invoice, packing slip or the like used by Supplier. Course of performance, course of dealing, and usage of trade shall not be applied to modify these General Conditions of Purchase.
2.3. All costs incurred by Supplier in preparing and submitting any acceptance of RingCentral' offer shall be for the account of Supplier.
3. Time of the Essence
Time is of the essence and all dates referred to in this Agreement shall be firm. In the event that Supplier anticipates any difficulty in complying with any delivery date or any of its other obligations under this Agreement, Supplier shall promptly notify RingCentral in writing.
4. Delivery of Goods
4.1. Unless expressly agreed otherwise in writing, all Goods shall be delivered FOB (as defined in the latest version of the Incoterms) final destination, such destination to be determined by RingCentral.
4.2. Delivery shall be deemed completed at the moment receipt has been acknowledged by RingCentral in writing but this shall not constitute acceptance of the Goods.
4.3. Supplier shall, concurrently with the delivery of the Goods, provide RingCentral with copies of all applicable licenses. Each delivery of Goods to RingCentral shall include a packing list which contains at least (i) the applicable order number, (ii) the RingCentral part number, (iii) the quantity shipped, and (iv) the date of shipment.
4.4. Supplier shall make no partial delivery or delivery before the agreed delivery date(s). RingCentral reserves the right to refuse delivery of Goods and return same at Supplier's risk and expense if Supplier defaults in the manner and time of delivery or in the rate of shipment. RingCentral shall not be liable for any costs incurred by Supplier related to production, installation, assembly or any other work related to the Goods, prior to delivery in accordance with this Agreement.
4.5. Any design, manufacturing, installation or other work to be performed by or on behalf of Supplier under this Agreement shall be executed with good workmanship and using proper materials.
4.6. Supplier shall pack, mark and ship the Goods in accordance with sound commercial practices and RingCentral' specifications in such manner as to prevent damage during transport and to facilitate efficient unloading, handling and storage, and all Goods shall be clearly marked as destined for RingCentral. Supplier shall be responsible for any loss or damage due to its failure to properly preserve, package, handle, or pack the Goods; RingCentral shall not be required to assert any claims for such loss or damage against the common carrier involved.
5. Changes to Goods
Supplier shall not, without prior written consent of RingCentral, make any changes affecting Goods, including process or design changes, changes to manufacturing processes (including geographic location) changes affecting electrical performance, mechanical form or fit, function, environmental compatibility, life, reliability or quality of Goods or changes that could have significant impact upon Supplier's quality system.
6. Performance of Services
6.1. Supplier shall perform the Services with due skill and care, using the proper materials and employing sufficiently qualified staff.
6.2. Supplier shall be fully liable for any and all third parties with which it has contracted in connection with the Services.
6.3. Only written confirmation by RingCentral shall constitute acceptance of the Services performed.
7. Inspection, Rejection of Goods
7.1. Inspection of or payment for the Goods by RingCentral shall not constitute acceptance. Inspection or acceptance of or payment for the Goods by RingCentral shall not release Supplier from any of its obligations, representations or warranties under this Agreement.
7.2. RingCentral may, at any time, inspect the Goods or the manufacturing process for the Goods. If any inspection or test by RingCentral is made on the premises of Supplier, Supplier shall provide reasonable facilities and assistance for the safety and convenience of RingCentral's inspection personnel.
7.3. If RingCentral does not accept any of the Goods or Services, RingCentral shall promptly notify Supplier of such rejection, and Section 11 below shall apply. Within two (2) weeks from such notification, Supplier shall collect the Goods from RingCentral at its own expense or shall promptly perform the Services in accordance with RingCentral' instructions. If Supplier does not collect the Goods within said two (2) week period, RingCentral may have the Goods delivered to Supplier at Supplier's cost, or with the Supplier's prior consent destroy the Goods, without prejudice to any other right or remedy RingCentral may have under this Agreement or at law.
7.4. If, as a result of sampling inspection, any portion of a lot or shipment of like or similar items is found not to be in conformity with this Agreement, RingCentral may reject and return the entire shipment or lot without further inspection or, at its option, complete inspection of all items in the shipment or lot, reject and return any or all nonconforming units (or accept them at a reduced price) and charge Supplier the cost of such inspection.
8. Prices; Payment
8.1. Title in the Goods shall pass to RingCentral after receipt of delivery.
8.2. All prices quoted in this Agreement shall be fixed prices. Supplier warrants that such prices are not in excess of the lowest prices charged by Supplier to other similarly situated customers for similar quantities of goods or services of like kind and quality.
8.3. (i) All prices are gross amounts but exclusive of any value added tax (VAT), sales tax, GST, consumption tax or any other similar tax only. (ii) If the transactions as described in this Agreement are subject to any applicable VAT, sales tax, GST, consumption tax or any other similar tax, Supplier shall be allowed to charge VAT, sales tax, GST, consumption tax or any other similar tax to RingCentral, which shall be paid by RingCentral on top of the prices quoted. Supplier is responsible for paying any applicable VAT, sales tax, GST, consumption tax or any other similar tax to the appropriate (tax) authorities. Supplier shall issue an invoice containing wording that shall allow RingCentral to take advantage of any applicable "input" tax deduction. In addition, Supplier shall inform RingCentral whether RingCentral is allowed to apply for an exemption if and to the extent allowed under applicable law in such specific situation.
8.4. Any license fees shall be included in the price.
8.5. If Supplier fails to fulfill any of its obligations under this Agreement, RingCentral may suspend payment to Supplier.
8.6. RingCentral shall at all times have the right to set off and deduct from any amounts owing from RingCentral to Supplier or any of its affiliates any amount owing from Supplier or any of its affiliates to RingCentral, irrespective of the nature of any such claim.
8.7. Supplier acknowledges and agrees that any amount to be paid by RingCentral to Supplier may be paid on RingCentral's behalf by another legal entity belonging to the RingCentral Group of Companies and/or a third party designated by RingCentral. Supplier shall treat such payment as if it were made by RingCentral itself and RingCentral' obligation to pay to Supplier shall automatically be satisfied and discharged in the amount paid by such entity.
9.1. Supplier represents and warrants to RingCentral that:
(a) all Goods are suitable for the intended purpose and shall be new, merchantable, of good quality and free from all defects in design, materials, construction and workmanship;
(b) all Goods strictly comply with the specifications, approved samples and all other requirements under this Agreement;
(c) all Goods shall be free from any and all liens and encumbrances; (i) all Goods have been designed, manufactured and delivered, and all Services have been provided in compliance with all applicable laws (including labor laws), regulations, EC Directive 2001/95 on General Product; (ii) Goods and Services are provided with and accompanied by all information and instructions necessary for proper and safe use;
(d) all required licenses in relation to the Goods are and shall remain valid and in place, that the scope of such licenses shall properly cover the intended use of the Goods and all such licenses shall include the right to transfer and the right to grant sublicenses;
(e) where the Goods or Services incorporate or contain chemicals or dangerous hazardous goods or substances, these shall be accompanied by written and detailed specifications of the composition and characteristics of such goods or substances and of all laws, regulations and other requirements relating to such goods or substances in order to enable RingCentral to transport, store, process, use and dispose of such Goods properly and in a safe manner; and
(f) all Goods do not violate or infringe any third party domestic or foreign patent, copyright (including portrait rights and moral rights), trade secret, trademark or other intellectual property rights.
9.2. These warranties shall not be deemed to exclude Supplier's standard warranties or other rights or warranties which RingCentral may have or obtain, shall survive any delivery, inspection, acceptance, payment or resale of the Goods, and shall extend to RingCentral and its customers. Acceptance of, or payment for, all or any part of the Goods or Services furnished under this Agreement shall not be deemed to be a waiver of RingCentral' right to cancel or return or reject all or any part thereof because of failure to conform to order or by reason of defects, latent or patent, or other breach of warranties, or to make any claim for damages, including manufacturing costs and loss of profits or other special damages occasioned to RingCentral.
10. Open Source Software Warranty
Unless the inclusion of same is specifically authorized in writing by duly authorized officers of RingCentral, Supplier represents and warrants that the Goods do not include any portion of any Open Source Software. As used herein, "Open Source Software" shall mean:
(a) any software that requires as a condition of use, modification and/or distribution of such software, that such software: (i) be disclosed or distributed in source code form; (ii) be licensed for the purpose of making derivative works; (iii) may only be redistributed free from enforceable intellectual property rights; and/or
(b) Any software that contains, is derived from, or statically or dynamically links to, any software specified under (a).
11. Non-conformity of Goods or Services
11.1. If any Good or Service is defective or otherwise not in conformity with the requirements of this Agreement, RingCentral shall notify Supplier and may, without prejudice to any other right or remedy available to it under this Agreement or at law, at its sole discretion:
(a) Claim a full refund of the price paid under this Agreement; or
(b) Require Supplier promptly to remedy the non-conformance or to replace the nonconforming Goods with Goods meeting the specifications.
11.2. Supplier shall bear all cost of repair, replacement and transportation of the nonconforming Goods, and shall reimburse RingCentral in respect of all costs and expenses (including, without limitation, inspection, handling and storage costs) reasonably incurred by RingCentral in connection therewith.
11.3. Risk in relation to the nonconforming Goods shall pass to Supplier upon the date of notification thereof.
12. Compliance with Laws
Supplier shall at all times comply with all laws, rules, regulations, and ordinances applicable to this Agreement, including, but not limited to, all fair labor, equal opportunity, and environmental compliance laws, rules, regulations, and ordinances. Supplier shall furnish to RingCentral any information required to enable RingCentral to comply with any applicable laws, rules, and regulations in its use of the Goods and Services. If Supplier is a person or legal entity doing business in the United States, and the Goods and/or Services are sold by RingCentral under federal contract or subcontract, all applicable procurement regulations required by federal statute or regulation to be inserted in contracts or subcontracts are hereby incorporated by reference. Additionally, if Supplier is a person or legal entity doing business in the United States, the Equal Employment Opportunity Clauses set forth in 41 Code of Federal Regulations, Chapters 60-1.4, 60-250.5, and 60-741.5, is hereby incorporated by reference.
13. Payment before Delivery
If RingCentral pays for any Goods ordered herein prior to delivery, title in the same shall pass to RingCentral on payment, and Supplier agrees to segregate such Goods and any raw materials and work in progress relating to this Agreement.
14. Limitation of Liability
RINGCENTRAL SHALL NOT BE LIABLE TO SUPPLIER FOR ANY LOST REVENUE, LOST PROFITS OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES BASED ON BREACH OR DEFAULT UNDER THIS ORDER, EVEN IF RINGCENTRAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
In no event shall RingCentral be liable to Supplier, its successors or assigns for damages in excess of the amount due to Supplier for complete performance under this Agreement, less any amounts already paid to Supplier by RingCentral.
15. Force Majeure
In the event that Supplier is prevented from performing any of its obligations under this Agreement for reason of force majeure, the performance of the obligation concerned shall be suspended for the duration of the force majeure. If the circumstance constituting force majeure endures for more than thirty (30) days, RingCentral shall be entitled to terminate this Agreement with immediate effect by written notice to Supplier, and upon such notice, Supplier shall not be entitled to any form of compensation.
16. Suspension and Termination
16.1. Without prejudice to any other right or remedy available to RingCentral under this Agreement or at law, RingCentral shall be entitled at its discretion to suspend the performance of its obligations under this Agreement in whole or in part or to terminate this Agreement in whole or in part by means of written notice to Supplier in the event that:
(a) Supplier files a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, assignment for the benefit or creditors or similar proceeding;
(b) Supplier becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding and such petition or proceeding is not dismissed within thirty (30) days from filing of such petition or proceeding;
(c) Supplier ceases or threatens to cease to carry on business in the ordinary course; or
(d) Supplier breaches any of its obligations under this Agreement or RingCentral', in its reasonable discretion, determines that Supplier cannot or shall not deliver the Goods or perform the Services as required.
17.1. Supplier shall treat all information provided by or on behalf of RingCentral under this Agreement as confidential. All such information shall be used by Supplier only for the purposes of this Agreement. Supplier shall protect RingCentral' information using not less than the same degree of care with which it treats its own confidential information, but at all times shall use at least reasonable care. All such information shall remain the property of RingCentral and Supplier shall, upon RingCentral' demand, promptly return to RingCentral all such information and shall not retain any copy thereof.
17.2. The existence and the contents of this Agreement shall be treated as confidential by Supplier.
18.1. Supplier shall provide Goods and render Services hereunder as an independent contractor and not as an agent of RingCentral and nothing contained in this Agreement is intended to create a partnership, joint venture or employment relationship between the parties.
18.2. Supplier shall not subcontract, transfer, pledge or assign any of its rights or obligations under this Agreement without the prior written consent of RingCentral. Any such pre-approved subcontracting, transfer, pledge or assignment shall not release Supplier from its obligations under this Agreement.
18.3. The rights and remedies reserved to RingCentral are cumulative and are in addition to any other or future rights and remedies available under the Agreement, at law or in equity.
18.4. Supplier shall provide RingCentral written notice of all product discontinuances twelve (12) months prior to the last order date, including as a minimum RingCentral part numbers, substitutions, and last order and shipment dates.
18.5. Neither the failure nor the delay of RingCentral to enforce any provision of this Agreement shall constitute a waiver of such provision or of the right of RingCentral to enforce each and every provision of this Agreement. No course or prior dealings between the parties and no usage of the trade shall be relevant to determine the meaning of this Agreement. No waiver, consent, modification or amendment of the terms of this Agreement shall be binding unless made in a writing specifically referring to this Agreement signed by RingCentral and Supplier.
18.6. In the event that any provision(s) of these General Conditions of Purchase shall be held invalid, unlawful or unenforceable by a court of competent jurisdiction or by any future legislative or administrative action, such holding or action shall not negate the validity or enforceability of any other provisions hereof. Any such provision held invalid, unlawful or unenforceable, shall be substituted by a provision of similar import reflecting the original intent of the clause to the extent permissible under applicable law.
18.7. In the event of termination, any obligation entered into prior to termination, shall be performed under the terms and conditions of this Agreement. Termination of this Agreement shall not effect either Party's commitments undertaken pursuant to this Agreement prior to its termination.
18.8. This Agreement shall be governed by and construed in accordance with the laws of the country or state of incorporation of RingCentral, as applicable. RingCentral and Supplier expressly disclaim application of the United Nations Convention on International Sale of Goods. Supplier and RingCentral each consents to (i) the exclusive jurisdiction of the competent courts in the country or state of incorporation of RingCentral; or (ii), at the option of RingCentral, of the competent courts of the place of residence of Supplier or (iii), at the option of RingCentral, for arbitration in which case Section 18.10 applies and Supplier hereby waives all defenses of lack of personal jurisdiction and forum non conveniens.
18.9. If so chosen by RingCentral in accordance with Section 23.9, any dispute, controversy or claim arising out of or in connection with this Agreement, or its breach, termination or invalidity shall be finally settled solely under the International Chamber of Commerce Rules of arbitration, which Supplier and RingCentral declare to be known to them. Supplier and RingCentral agree that: (i) the appointing authority shall be the ICC-International Chamber of Commerce of Paris, France; (ii) there shall be three (3) arbitrators; (iii) the place of arbitration shall be a place in the country of residence of the Supplier or, at the option of RingCentral, a place in the country of residence of RingCentral; (iv) the language to be used in the arbitration proceedings shall be English; and (v) the material laws to be applied by the arbitrators shall be the laws of the country or state of incorporation of RingCentral.