9. Representations, Warranties and Conditionns
9.1 Right to Perform Services. Vendor represents and warrants that: (a) it and, as applicable, all workforce members, Subcontractors, and other parties uses to perform under this Agreement or SOW have the full right, power and authority – and possess all necessary or appropriate licenses, certifications, permits, and authorizations – to enter into this Agreement and perform the Services and its other obligations hereunder; (b) its execution of this Agreement and its performance of the Services shall not result in a breach of or default under any other agreement to which Vendor is a party or by which it is bound; (c) it and all workforce members, Subcontractors, and other parties used to perform under this Agreement or a SOW shall comply with all Laws and permit requirements, including but not limited to those relating to employment, labor, safety, privacy, advertising, marketing, consumer protection, or the environment and (d) the person(s) executing this Agreement and any SOW on its behalf is duly authorized to do so and, upon such execution, Vendor shall be bound to this Agreement or the SOW, as applicable.
9.2 Product Warranty
9.2.1 All Product(s) are sold subject to the express warranty terms, if any, specified by the original equipment manufacturer (“OEM”) of the Product(s). Vendor shall pass through all OEM warranty terms to RingCentral for purchased Product(s), for pass through by RingCentral to the Customer. Any software supplied to Customer in connection with the Product(s) is supplied subject to the provisions of the OEM’s licensing terms.
9.2.2 Vendor represents and warrants, for a period of ninety (90) days from delivery, unless such longer term is indicated in the applicable Order Form, SOW, or Vendor quote, that all Product(s) shall be provisioned in accordance with the terms of this Agreement (unless otherwise indicated by RingCentral in writing). If Vendor fails to provision in accordance this Agreement, then a return of such Product(s) shall be deemed a Warranty Claim (as defined in Section 8.3 (Warranty Claims and Other Returns) below), except that the remedies described herein for such a Warranty Claim pursuant to this subsection 8.2.2 shall be fulfilled only by Vendor with no involvement from OEM.
9.2.3 Vendor represents and warrants that title to all Product(s) shall be free from all security interests, liens, and encumbrances at the time of delivery to Customer. The foregoing shall not be construed, and the Vendor does not provide, any warranty against infringement of a third-party intellectual property right. However, the OEM may provide such warranty directly to the Customer, and if permitted by OEM, Vendor shall pass such warranty to RingCentral, for pass through by Ring Central to the Customer, as set forth in Section 8.3 (Warranty Claims and Other Returns).
9.2.4 Warranty Claims and Other Returns.
9.2.4(i) Warranty Claims. RingCentral shall promptly notify Vendor if RingCentral’s technical support resources have determined that a Product(s) supplied to Customer is defective in quality or functionality within the warranty period (the “Warranty Claim”), and Vendor shall be fully responsible for processing such claims. Upon receipt of notification of any Warranty Claim from RingCentral within the first ninety (90) days after receipt of the Product(s) by Customer, Vendor shall process such Warranty Claim per OEM procedures and ensure prompt shipment of a replacement Product(s) to Customer. Replacement Product(s) may be new or used as directed by OEM. Claims made after the first ninety (90) days from receipt of the Product(s) by Customer are subject to the applicable return processing fee payable by RingCentral, and such return processing fee shall cover all shipping, handling, and processing of the return.
9.2.4(ii) For all Returned Product(s) (whether pursuant to a Warranty Claim or otherwise) RingCentral will, on the Customer’s behalf, initiate an RMA, as defined below, request with Vendor that may be transmitted to Vendor through API or through Vendor ’s portal at RingCentral’s sole discretion. Following an RMA request, Vendor shall issue an RMA number and issue a shipping label to RingCentral via electronic exchange (an “RMA”).
9.2.4(iii) Product(s) Return Procedures. Upon receiving a Returned Product(s) pursuant to this Section 8.3 (Warranty Claims and Other Returns), Vendor shall: (a) transmit via the API an order receipt confirmation to RingCentral along with the Returned Product(s)’s serial number and date received; (b) in the case of returns other than in connection with Warranty Claims, inspect as directed by the OEM; (c) in the case of Warranty Claims, initiate a warranty claim for the Product(s) with the OEM and, if within the first ninety (90) days after the Customer received the Product(s) or if after that time period but otherwise permitted by the OEM’s warranty terms, provide Customer a replacement Product(s); and (d) clear all configuration data and other information.
9.3 Services Warranty. Vendor represents and warrants that all Services provided under this Agreement shall be performed in a timely manner and in accordance with highest applicable industry, government and professional standards and the highest standards of professionalism and efficiency in Vendor’s industry. As a remedy for breach of the foregoing warranty, RingCentral may elect, at RingCentral’s option: (a) the re-performance of any Services not in compliance with this warranty at no additional cost to RingCentral or (b) refund to RingCentral of the purchase price of the Services. Notwithstanding the foregoing, this Section 9.5 in no way limits the other remedies available to RingCentral under this Agreement.
9.4 Conflicts of Interest; Compliance with Laws. Vendor represents and warrants that it shall not, during the term of this Agreement, accept any work or enter into any agreement or assume any obligation inconsistent or incompatible with Vendor’s obligations under this Agreement or that might prevent, delay, or hinder its performance under this Agreement or any SOW. In performing its obligations under the agreement, the Vendor shall and shall ensure that each of its Subcontractors shall comply with all applicable laws, statutes, regulations in force from time to time, including without limitations taking and take reasonable steps to ensure that there is no modern slavery or human trafficking in the Vendors or subcontractors supply chains or in any part of their business.
9.5 Vendor Anti-Corruption Laws Representations and Warranties
9.5.1 Vendor understands that RingCentral is required to and abides by the United States Foreign Corrupt Practices Act of 1977, as amended, U.K. Bribery Act of 2010, and similarly applicable anti-corruption and anti-bribery laws (“Anti-Corruption Laws”) while working on behalf of RingCentral. Vendor represents and warrants that no one acting on its behalf will give, offer, agree or promise to give, or authorize the giving directly or indirectly, of any money or other thing of value, including travel, entertainment, or gifts, to anyone as an inducement or reward for favorable action or forbearance from action or the exercise of influence (i) to any governmental official or employee (including employees of government-owned and government-controlled corporations or agencies or public international organizations), (ii) to any political party, official of a political party, or candidate, (iii) to an intermediary for payment to any of the foregoing, or (iv) to any other person or entity in a corrupt or improper effort to obtain or retain business or any commercial advantage, such as receiving a permit or license, or directing business to any person. Improper payments, provisions, bribes, kickbacks, influence payments, or other unlawful provisions to any person are prohibited under this agreement.
9.5.2 Vendor understands that RingCentral may immediately suspend payment, in its sole discretion and without notice, if the actions or inactions of Vendor become subject to an investigation, formal or informal, regarding potential violations of the Anti-Corruption Laws. Moreover, Vendor understands that if RingCentral determines that Vendor failed to comply with the provisions of any applicable law, including the Anti-Corruption Laws, RingCentral may immediately terminate this Agreement and any payments due thereunder, in its sole discretion and without notice.
9.5.3 Vendor warrants and covenants that all persons acting on its behalf will comply with all applicable laws in connection with all work on behalf of RingCentral, including but not limited to the Anti-Corruption Laws, and similar laws prevailing in the country(ies) in which Vendor has its principal places of business, performs work on behalf of RingCentral, and the Territory.
9.5.4 Vendor represents and warrants that none of its senior employees or any immediate family member of such senior employees, is presently (or has been recently) an official or employee of any foreign (non-U.S.) government, state-run or state-owned or controlled enterprise or entity, or political party, or a candidate for political or public office.
9.5.5 Vendor further warrants, represents, and covenants that should it learn or have reason to suspect any breach of the covenants in this Section, it will immediately notify RingCentral.
9.5.6 The RingCentral shall be allowed reasonable access to the Vendor’s books and records and shall have the right to audit Vendor on a periodic basis and Vendor agrees to provide Anti-Corruption Laws compliance certificates to RingCentral, upon request.
9.5.7 Vendor agrees to fully indemnify RingCentral for any act or failure to act that result in an allegation, investigation (whether internal or government-initiated), or prosecution of RingCentral related to the Anti-Corruption Laws, including all such associated costs, fees, penalties, fines, consequential damages, settlements, and related financial incurrences of RingCentral.
9.6. Open Source. Vendor hereby agrees, and shall cause its affiliates and Subcontractors to agree, not to incorporate, link, distribute or use any third party software or code in conjunction with any Work Product or deliverable provided to RingCentral (if any) in such a way that: (a) creates, purports to create or has the potential to create, obligations with respect to any RingCentral software, including without limitation the distribution or disclosure of any source code; or (b) grants, purports to grant, or has the potential to grant to any third party any rights to or immunities under any RingCentral IP or proprietary rights. Without limiting the generality of the foregoing, neither Vendor nor any of its affiliates or Subcontractors shall incorporate, link, distribute or use, in conjunction with the Work Product or any deliverable provided to RingCentral, any code or software licensed under the GNU General Public License (“GPL”), Lesser General Public License (“LGPL”), Affero GPL (AGPL), European Community Public License (ECPL), Mozilla, or any other open source license, in any manner that could cause or could be interpreted or asserted to cause any RingCentral software (or any modifications thereto) to become subject to the terms of the GPL, LGPL, Mozilla or such other open source license. Without limiting the generality of the foregoing, neither Vendor nor any of its affiliates or Subcontractors shall use any software or technology in a manner that will cause any IP owned or controlled by RingCentral or any of its Affiliates (or to or for which RingCentral or any of its Affiliates has received license rights) to become subject to any encumbrance or terms and conditions of any third party or open source license (including, without limitation, any open source license listed on http://www.opensource.org/licenses/alphabetical) (each an “Open Source License”). These restrictions, limitations, exclusions and conditions shall apply even if RingCentral or any of its Affiliates becomes aware of or fails to act in a manner to address any violation or failure to comply therewith. No act by RingCentral or any of its Affiliates that is undertaken under this Agreement shall be construed as being inconsistent with the intent to not cause any IP owned or controlled by RingCentral or any of its Affiliates (or to or for which RingCentral or any of its Affiliates has received license rights) to become subject to any encumbrance or terms and conditions of any Open Source License.
9.7 Work Product Representations and Warranties. Vendor represents and warrants that: (a) the Work Product shall be an original work of Vendor and in performing the Services and furnishing Work Product; (b) Vendor has not transferred or assigned to any third party any proprietary rights in the Work Product; (c) no portion of the Work Product shall be subject to any lien, encumbrance, security interest, or other restriction of any nature; (d) Vendor has all rights necessary to grant to RingCentral licenses to Vendor’s Pre-Existing Intellectual Property; (e) Vendor has the full right to assign to RingCentral all of Vendor’s rights, title and interest in – and all IP in - and to all Work Product; (f) RingCentral shall receive full title to, right to and in, and ownership of all Work product and shall be free to use all Work Product without restriction; (g) Vendor has complied with all Laws in acquiring or generating any and all Work Product; (h) all Work Product shall be free from defects in workmanship and materials and shall be fit for the purposes for which such Work Product is intended; and (h) no Work Product or other content or materials provided or used by Vendor or any of its personnel or Subcontractors (or RingCentral’s, its Affiliates, or their officers’, directors’, or employees’ use thereof) shall: (i) violate any Law; (ii) infringe or misappropriate any IP right; (iii) violate any right (including without limitation any right of publicity or privacy); (iv) defame any party; or (v) constitute or include any tortious element or content. In addition to all other remedies available to RingCentral under this Agreement or any SOW, as a remedy for breach of any of the foregoing representations or warranties, RingCentral may elect, at RingCentral’s option: (aa) the replacement of non-conforming Work Product, which shall be accomplished by Vendor at no charge to RingCentral; (bb) repair, modification or adaptation of the non-conforming Work Product at Vendor’s expense; or (cc) return of the non-conforming Work Product to Vendor and a full refund to RingCentral of the aggregate purchase price paid therefor.
9.8 No Representations of Agency. Vendor represents and warrants that it shall refrain from stating, representing, implying, suggesting, or otherwise communicating in any way that it has the authority or right to act, or is acting as, RingCentral’s agent or is otherwise authorized to act on RingCentral’s behalf or to bind, commit, or obligate RingCentral in any way. Vendor agrees that RingCentral and its inside or outside accountants, attorneys, or other advisors or agents may, upon ten (10) days’ advance notice to Vendor, audit and inspect Vendor’s documents, contracts, books, and records in order to determine whether Vendor’s compliance with this Section 9.8.
9.9 Cease Services Orders. Notwithstanding anything to the contrary herein, RingCentral shall, in addition to all other remedies under this Agreement or any applicable SOW, have the right to order Vendor to immediately cease or suspend providing the Services or otherwise performing under any SOW. Vendor represents and warrants that it shall immediately comply with any such order.
9.10 Tax Adjustments. Vendor represents and warrants that it shall make all tax adjustments, withholdings, deductions, payments, and the like related to any payments made by RingCentral hereunder, as required by Law, and shall otherwise ensure compliance with all federal, state, or local tax laws relating to the amounts paid or payable by Vendor hereunder.
9.11 Import/Export. To the extent that any tangible or intangible products, services or technical data provided under this Agreement is subject to export laws and regulations including, but not limited to U.S. Export Administration Act and its associated regulations, the applicable party will not use, distribute, transfer, or transmit, or otherwise export such products, services or technical data provided by the other Party under this Agreement except in compliance with applicable export laws and regulations. Further, Vendor represents and warrants that Vendor, including Vendor subcontractors, in the provision of services for RingCentral, does not and will not without RingCentral’s prior written approval use “covered telecommunications equipment” as defined under the Federal Acquisition Regulations implementing Section 889(a)(1)(B) of the National Defense Authorization Act for Fiscal Year 2019 (Pub. L. 115-232).
9.12 Disclaimer and Limitation of Liability. EXCEPT AS OTHERWISE EXPLICITLY SET FORTH IN THIS SECTION 9, NEITHER PARTY MAKES ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHER WISE, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT FOR VENDOR’S OBLIGATIONS UNDER SECTIONS 6 (CUSTOMER CPNI AND CUSTOMER COMMUNICATIONS), 7 (CONFIDENTIALITY AND SECURITY), 8 (PROPRIETARY RIGHTS) 9 (REPRESENTATIONS, WARRANTIES AND CONDITIONS), AND 10 (INDEMNIFICATION), NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT OR ANY RESULTING OBLIGATIONS, WHETHER IN AN ACTION FOR OR ARISING OUT OF BREACH OF CONTRACT, TORT OR ANY OTHER CAUSE OF ACTION, AND EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. RINGCENTRAL'S TOTAL LIABILITY (ARISING OUT OF ANY SINGLE EVENT OR IN THE AGGREGATE), ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY SOW(S) SHALL BE LIMITED AND CAPPED IN ITS ENTIRETY TO THE AMOUNTS INCURRED UNDER THE PARTICULAR SOW UNDER WHICH THE LIABILITY AT ISSUE AROSE. EACH PARTY AGREES THAT THESE LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER EITHER PARTY HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN BY EITHER PARTY AND NOTWITHSTANDING THE FAILURE OF AN ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.