Standard Terms and Conditions of Purchase

These Standard Terms and Conditions of Purchase (these “Terms”) govern all purchases of goods and/or services (the “Goods”) by Pepwave International Limited and its Affiliates (collectively, “Pepwave” or the “Purchaser”) from you (the “Supplier”). Acceptance of a Purchase Order from Pepwave shall be deemed conclusive evidence of the Supplier’s agreement to and acceptance of these Terms in its entirety.

These Terms shall take precedence over any and all Supplier’s terms and conditions (including but not limited to those presented in or by way of an invoice, payment slip, delivery note or in any other manners and regardless of whether any such documents may bear signature or company chop of Pepwave). Notice of objection is hereby expressly given.

Unless already defined, the capitalized terms in this recital shall have the meanings ascribed to them under Section 1 hereunder.

1. DEFINITIONS AND INTERPRETATIONS

1.1 “Affiliates” means, with reference to a party, any company or other legal entity which: (i) Controls either directly or indirectly, a Party; or (ii) is Controlled, directly or indirectly, by a party; or (iii) is directly or indirectly Controlled by a company or entity which directly or indirectly Controls a party. For these purposes, “Control” means the right to exercise more than fifty percent (50%) of the voting or similar right of ownership; but only for so long as such Control shall continue to exist.

1.2 “Application Form for Creation of Supplier Code” or “Application Form” means the Pepwave’s pro forma application form for a Supplier to apply for a supplier code with Pepwave; “Application for Creation of Supplier Code” or “Application” shall be construed accordingly.

1.3 “Business Day” means a day other than a Saturday, Sunday or public holiday in Hong Kong, and “Business Hours” means 9:00 am to 6:00pm Monday to Friday on a Business Day.

1.4 “Confidential Information” means any non-public technical or business information of a party that is of confidential nature, whether disclosed in writing or in oral and regardless of whether designated or marked as “Confidential” or “Proprietary” at the time of its disclosure. Confidential Information includes, without limitation, any information relating to a party’s software, business plans, product plans, costs information, bills of materials, technical and non-technical data, formulas, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial data, financial plans, or lists of actual or potential customers or suppliers, the terms and conditions of any agreements between the parties, and any information obtained from a third party if such third party treats the information as confidential information or trade secrets. Confidential Information will not include any information that: (a) is or becomes generally known to the public through no fault or breach of any confidential obligation by the receiving party; (b) the receiving party can demonstrate by written evidence was rightfully in the receiving party’s possession the time of disclosure, without an obligation of confidentiality; (c) is independently developed by the receiving party without use of or access to the disclosing party’s Confidential Information; or (d) is required or requested by law or judicial order to be disclosed by the receiving party.

1.5 “Deliverable” means the Goods that the Supplier is obligated to provide to Pepwave upon the Supplier’s acceptance of a Purchase Order.

1.6 “Delivery Date” or “Delivery Schedule” means the expected date or dates for the delivery of the Deliverables (or any portion thereof) as specified in the Purchase Order, or as subsequently revised by Pepwave’s written instructions.

1.7 “Designated Address” means the address designated for delivery of the Deliverables on the Purchase Order, or as subsequently revised by Pepwave’s written instructions.

1.8 “Discontinuation” means the cease of production, sale, or support of a Good (or any component in a Good), including withdrawal from the market.

1.9 “FOB” stands for “Free On Board”, being one of the Incoterms defined by the International Chamber of Commerce (ICC) in the Incoterms 2021 rules.

1.10 “Force Majeure Event” means an event that is beyond the reasonable control of Pepwave or the Supplier (as the case may be) and is not caused by such party’s fault, negligence or lack of due diligence, including acts of God, war, insurrection, riot, civil or social unrest, sabotage, boycott, embargo, earthquake, flood, public disorder, violent demonstrations, blockade, and government regulations.

1.11 “Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trademarks, business names and domain names, rights in designs, rights in computer software, database rights, rights to use and protect the confidentiality of confidential information (including but not limited to know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

1.12 “Last Time Buy” means a final opportunity to purchase a Good prior to its Discontinuation.

1.13 “Purchase Order” means a purchase order issued by Pepwave.

1.14 “Replacements” means the replacement units arranged by the Supplier to replace any Goods rejected or returned pursuant to Sections 4.4 and 6.3.

1.15 “Sanctioned Party” means a sanctioned or restricted person, entity, or nation on any sanction or export control lists maintained by the United Nations, the United States, the European Union, the United Kingdom, Australia, Hong Kong or any other governments that parties agreed as applicable.

1.16 “Specifications” means any descriptions, drawings and requirements related to performance, materials, dimensions, quality standards and other applicable standards to or of the Deliverables, which may include any necessary certifications or compliance requirements that the Deliverables must meet.

1.17 “Substantial Changes” means any significant modifications to the characteristics, specifications, design, materials, performance, functionality, site of manufacturing, manufacturing process, testing methods and criteria, compliance with regulations, or intended use of a Good (or any component in a Good) that materially affect its use, functions, value, or marketability.

1.18 “Supplier’s Warranties” means the supplier’s warranties prescribed at Sections 6 and 10, and all such express and implied warranties required of the Supplier in respect of the Deliverables by an applicable law; and “Intellectual Property Warranty” means the supplier’s warranties prescribed at Section 6.1(f).

1.19 “Warranty Period” means, unless otherwise stated on the Supplier’s Application Form for Creation of Supplier Code Creation (as accepted by Pepwave) or the Purchase Orders of the relevant Deliverables, a period of twenty-four (24) months from Pepwave’s receipt of the Deliverables. In the event both the Supplier’s Application Form and Purchase Order of the relevant Deliverables designate a different Warranty Period, that under the Purchase Order shall prevail in respect of the Deliverables thereunder. In case of any Replacement, the Warranty Period shall start afresh upon Pepwave’s receipt of the Replacement.

1.20 Unless the context clearly indicates otherwise, terms in the singular form shall include the plural, and terms in the plural form shall include the singular.

1.21 Headings and footnotes in these Terms are for convenience only and shall not be deemed to be a part of this agreement or to affect the interpretation of any provision of this agreement.

1.22 These Terms are written in the English language, which will be controlling for all purposes. No translation of these Terms into any other language will be of any force or effect in the interpretation.

2. PURCHASE ORDERS

2.1 Validity of Purchase Orders. Notwithstanding any actions taken by Pepwave and/or the Supplier in relation to or in reliance of a Purchase Order, all Purchase Order (and any amendments or amended Purchase Order) shall only be deemed valid if it is executed by an individual duly authorized by Pepwave and verified with Pepwave’s official company chop. The Supplier may direct its enquiry to [email protected] to verify the authenticity of any purchase order purporting to be issued by Pepwave.

2.2 Particulars to be Included. Each Purchase Order shall identify the Deliverables and set out the corresponding unit price (with applicable currency), quantity, Delivery Schedule, and Designated Address. Any variations to the description, unit price, and quantity of the Deliverables must be effected through an amended Purchase Order, or a Purchase Order issued afresh in accordance with Section 2.1.

2.3 Acceptance of Purchase Orders.

a. Except as provided in subsection (b) below, all Purchase Orders shall be deemed an offer from Pepwave to purchase, and acceptance by the Supplier occurs:-
i. upon the Supplier acknowledging receipt of the Purchase Order without an express reservation; or
ii. on the third (3rd) Business Day after Pepwave’s delivery of the Purchase Order to the Supplier, unless the Supplier expressly rejects the Purchase Order; or
iii. upon the Supplier begins to perform on the Order;

whichever is earlier.

b. Where an amended Purchase Order or a Purchase Order is issued afresh to amend or correct any information or particulars contained in an already-accepted Purchase Order, provided that such amendments or corrections have been agreed by parties, the Purchase Order so amended or issued afresh shall deem to have been accepted by the Supplier and supersede the already-accepted Purchase Order upon delivery to the Supplier.
c. Pepwave may revoke any Purchase Order prior to its acceptance by the Supplier.
d. In the event that the Supplier acknowledges receipt of the Purchase Order but with an express reservation, absent the Supplier’s express acceptance of the Purchase Order, the Purchase Order shall be deemed to have lapsed on the fifth (5th) Business Day after Pepwave’s delivery of the Purchase Order to the Supplier.

2.4 Forecast. For the avoidance of any doubt, any forecasts provided by Pepwave are strictly estimates and are not binding upon either party. The Supplier acknowledges that such forecasts are subject to change. Unless a Purchase Order is issued by Pepwave and accepted by the Supplier, Pepwave is under no obligation to purchase any Goods based on the forecasts, and will not be liable for any costs, expenses, or damages incurred by the Supplier as a result of the Supplier’s reliance on the forecasts.

3. DELIVERY AND SHIPPING TERMS

3.1 Due Delivery. Time is of the essence in respect of all Purchase Orders. All Deliverables must be delivered to the Designated Address in the amount prescribed by the Purchase Order according to the Delivery Schedule during Business Hours (or as otherwise permitted in writing by Pepwave), and in conformance with all Supplier’s Warranties and Specifications.

3.2 Delivery Schedule. The onus is on the Supplier to evaluate their capacity to meet the Delivery Schedule prior to accepting the Purchase Order. Upon acceptance, the Supplier must promptly notify Pepwave of any potential delays in writing. In any event, any revision in the Delivery Date is subject to Pepwave’s agreement and shall only be effective if revised with Pepwave’s prior written approval.

3.3 Partial or Excess Shipping. No partial or excess shipping is allowed except with Pepwave’s prior written approval. Unless the Parties agree otherwise agreed by Pepwave in writing, all costs associated with the delivery of the shortage, or the returning or storage of the excess, shall be borne by the Supplier.

3.4 Shipping Terms. Unless otherwise stated on the Supplier’s Application Form for Creation of Supplier Code (as accepted by Pepwave) or the Purchase Order of the relevant Deliverables, the applicable shipping term shall be that of FOB. In the event both the Supplier’s Application Form and the Purchase Order of the relevant Deliverables designate a different shipping term, that under the Purchase Order shall prevail in respect of those Deliverables.

3.5 Packaging. All Deliverables must be packaged and secured in a manner that protects the Deliverables from damage during transit and handling, and in strict accordance with Pepwave’s instructions. Each package must be accompanied by the following information: (i) name and contact details of contact person at Pepwave and the Supplier; (ii) any relevant precautionary signs or handling instructions; (iii) unique identification number or tracking code for the shipment to facilitate monitoring; and (iv) a packaging list that details the contents of the package, including quantity and description of Deliverables.

4. EXAMINATION AND ACCEPTANCE

4.1 Right to Inspection and Examination. Without prejudice to the following subsections, Pepwave reserves all rights to inspect, examine, test, and perform compliance checks on the Goods delivered within a commercially reasonable time. On reasonable notice to the Supplier, Pepwave shall also have the right to inspect and audit the Supplier’s premises, facilities, processes, and records related to the manufacture and provision of the Deliverable at any reasonable time. The Supplier shall cooperate and provide all necessary assistance and access during the inspection process, and use commercially reasonable endeavors to remedy all inadequacies Pepwave observes.

4.2 Acceptance of Deliverables. Acceptance shall occur only after Pepwave has confirmed acceptance in writing. For the avoidance of doubts, the presence of a signature or company chop from Pepwave on delivery documents or like, or the payment of any invoices, does not imply that Pepwave has confirmed its acceptance or receipt of the Goods (whether in terms of quantity, quality, conditions, or otherwise).

4.3 Rejection of Goods. If the Goods are found to be defective or otherwise non-conforming with the Specifications or Supplier’s Warranties, Pepwave shall have the right to reject the Goods for being “defective on arrival” within sixty (60) calendar days from Pepwave’s receipt. If, by the nature of the Deliverables, any defects or any failure could not become apparent until after use, Pepwave may reject the Goods even after a reasonable period of use. Pepwave shall promptly inform the Supplier of such rejection in writing.

4.4 Replacement of Rejected Goods. Pepwave may request the Supplier to take immediate remedial action, including to replace the rejected Goods with Replacements that meet the Specifications and Supplier’s Warranties to Pepwave’s satisfaction. In this case, Pepwave shall return the rejected Goods at the Supplier’s expenses, and the Supplier shall also bear all costs associated with the replacement exercise as well as delivery of the Replacements. The Supplier shall deliver the Replacements as soon as possible and, in any event, within sixty (60) calendar days from the Supplier’s receipt of the rejected Goods (or such timeframe Pepwave and the Supplier so agreed). All Replacements shall be accompanied by a new serial number. For the avoidance of doubt, all Replacements shall be subjected to examination and acceptance under this Section 4 afresh, and a failure to deliver Replacements that meet the Specifications and Supplier’s Warranties, or on time, shall also be a failure of due delivery within the meaning of Section 3.1.

4.5 Cancellation of Purchase Orders. In alternative to Section 4.4 above, Pepwave may cancel the underlying Purchase Order in respect of the rejected Goods, in whole or in part. In this case, Pepwave shall return the rejected Goods at the Supplier’s expenses. Where Pepwave reasonably concludes in its sole discretion that the Supplier is unlikely to remediate a general defect or failure in the rejected Goods within a reasonable timeframe, Pepwave may also cancel any and all portions of other Purchase Orders for Deliverables that share the same Specifications as the rejected Goods. Any such cancellation will be effective immediately upon written notice to the Supplier, and Pepwave shall not be held liable for any administrative fees, any costs or expenses and any resulting damages. The Supplier shall refund Pepwave any amount paid for such cancelled Purchase Orders (or such portion thereof) within seven (7) calendar days from receiving the written notice. Pepwave also reserves the right to purchase from a third party a like quantity of an alternative Good that is similar in Specifications and quality to the Deliverables, and the Supplier shall be liable to reimburse Pepwave any additional costs therefrom, including any increase in price for securing the alternative Goods.

4.6 Storage. In the event that Pepwave is unable to return the rejected Goods in good time due to the Supplier’s failure to cooperate, the Supplier shall bear all costs associated with the storage of those rejected Goods during the delay. This includes when the rejected Goods are stored in Pepwave’s warehouse, and Pepwave may charge the Supplier a reasonable charge for the storage during the delay.

5. INVOICE AND PAYMENT

5.1 Submission of Invoice. Unless otherwise agreed, the Supplier shall only submit its invoices once the Deliverables have arrived at the Designated Address. Original invoices shall be delivered by mail to Pepwave as per Pepwave’s instructions given from time to time.

5.2 Supplier’s Invoice. The Supplier’s invoice must include the following information as is appropriate: (i) the number of the corresponding Purchase Order; (ii) the part numbers assigned to the Deliverables by Pepwave; (iii) such other descriptions or job number provided by Pepwave. The Supplier’s invoice shall also reflect the price and currency as is provided on the Purchase Order. Any applicable taxes shall be listed as a separate line item independent of the prices of the Deliverables. No charges shall be incurred and none will be allowed for freight, transportation, insurance, shipping, storage, handling, demurrage, cartage, packaging or etc. unless provided for in the Purchase Order or with prior written approval from Pepwave. On Pepwave’s requests, the Supplier shall provide a detailed breakdown of any amount billed. The Supplier must ensure that all information on its invoices is complete and accurate, or else Pepwave shall have rights to withhold payment of the same until all mistaken information is rectified.

5.3 Disputed Invoice. Within ten (10) Business Days from Pepwave’s receipt of the Supplier’s invoice, Pepwave may notify the Supplier if it disputes any part of the invoice. Pending resolution of the disputed amount, the Supplier may either cancel the original invoice and issue an invoice for the undisputed amount within five (5) business days of the notification, or put the dispute invoice on hold in its entirety without accrual of interests. The parties shall promptly investigate any disputed amount and act reasonably to resolve the disputes. The Supplier shall not withhold performance of its obligations, whether under the same Purchase Order or otherwise, solely for the reason that the amount in dispute has not been paid.

5.4 Withholding and Deductions. Without prejudice to any other rights of Pepwave, Pepwave shall be entitled to withhold payment if the Goods rendered by the Supplier are subject to any examination, or are found to be defective or non-conforming with the Specifications or Supplier’s Warranties. In the event that Pepwave incurs any expenses that is the responsibility of the Supplier (such as any costs of shipping, costs of returning rejected Goods and etc.), or if the Supplier fails to refund or reimburse Pepwave where necessary (such as in pursuant to Sections 4.5, 11.3, 13.4), Pepwave may deduct such amounts from any subsequent payments to Suppliers without the need to furnish a credit note.

5.5 Payment Terms. Absent any disputes, Pepwave shall pay the Supplier’s invoice within sixty (60) calendar days from the date of Pepwave’s receipt of the Supplier’s invoice, unless other payment term is stated on the Supplier’s Application Form for Creation of Supplier Code Creation (as accepted by Pepwave) or the Purchase Orders of the relevant Deliverables. In the event both the Supplier’s Application Form and Purchase Order of the relevant Deliverables designate a different payment term, that under the Purchase Order shall prevail in respect of those Deliverables.

6. SUPPLIER’S WARRANTIES

6.1 Deliverables Warranties. The Supplier warrants that:-

a. the Deliverables are supplied free from liens and encumbrances and with full title guarantee;
b. the Deliverables are in full compliance with all aspects of the Specifications;
c. the Deliverables are of sound materials and free from defects;
d. the Deliverables (or any parts thereof) are equal in all respects to the corresponding sample or mock-up, if any, provided by or accepted by Pepwave;
e. the Deliverables are of merchantable quality, and fit for their intended purpose made known to the Supplier, whether expressly or by implication;
f. the Deliverables (or any parts thereof) will not infringe or otherwise misappropriate any third party’s Intellectual Property Rights except to the extent that Pepwave is responsible for the design of the Deliverables (or any part thereof); and
g. the software, coding, or digital files embedded in or accompanying the Deliverables, limited to the extent that the Supplier is responsible for, (i) contain no hidden files or unauthorized backdoor; (ii) do not modify, damage, or erase any data or computer programs without control of a person operating the computing equipment; and (iii) contain no malicious or harmful code.

6.2 Supplier’s Further Warranties. The Supplier further warrants, throughout the subsistence of a contractual relationship between Pepwave and the Supplier, that:-

-a. it has and will at all times maintain all relevant licenses, authorizations, consents, and permits that it requires to fully carry out its obligations under these Terms and any of the Purchase Orders;

b. it has and will at all times be in full compliance with all applicable industry standards, including but not limited to those in respect of the manufacturing process, environment protection, and the use of any hazardous substances;
c. it has and will at all times maintain all desirable certificates with regards to the applicable industry standards; and
d. it will, upon Pepwave’s request, promptly provide Pepwave with a certified copy of the documentation in support of its compliance with the foregoing, including but not limited to any licenses, authorizations, consents, permits, certificates, and statement of material composition on a substance by substance basis.

6.3 Return during the Warranty Period. If, during the Warranty Period, the Goods delivered are found to be defective or otherwise non-conforming with the Specifications or Supplier’s Warranties, Pepwave shall have the right to return the Goods and request the Supplier to take immediate remedial action, including replacing and/or reworking the returned Goods with Replacement that meet the Specifications and Supplier’s Warranties to Pepwave’s satisfaction. In this case, Pepwave shall return the Goods at Pepwave’s expense, but the Supplier shall bear all costs associated with the Replacement and/or rework exercise, as well as delivery of the replacements. Supplier shall deliver the replacements as soon as possible and, in any event, within sixty (60) calendar days from the Supplier’s receipt of the returned Goods (or within such timeframe Pepwave and the Supplier mutually agreed). All Replacements shall be accompanied by a new serial number. For the avoidance of doubt, all Replacements shall be subjected to examination and acceptance under Section 4 afresh, and failure to deliver Replacements that meet the Specifications and Supplier’s Warranties or to deliver on time shall also be a failure of due delivery within the meaning of Section 3.1.

6.4 Breach of the Intellectual Property Warranty. In the event of a breach of the Intellectual Property Warranty, the Supplier shall, at its own expense and without prejudice to any other right or remedy of Pepwave (including Pepwave’s indemnification rights under these Terms), promptly provide Pepwave with a commercially reasonable solution that minimize losses, interruption, and disruption to Pepwave, including but not limited to:-

a. the procurement for Pepwave of the right to continue using, selling, and distributing the Deliverables in question;
b. the replacement of such Deliverable with a non-infringing alternative satisfactory to Pepwave; or
c. the modification of such Pepwave (without affecting its conformance with any Specifications or Supplier’s Warranties) to render them non-infringing.

7. SUBSTANTIAL CHANGES OR DISCONTINUANCE

7.1 In the event that the Supplier makes, or becomes aware of, any decision to adopt a Substantial Change or Discontinuation that may affect a Deliverables, the Supplier must:-

a. inform Pepwave in writing and with all available information at the earliest possible date, which shall, in any case, be no less than six (6) months in advance of the effective date of the Substantial Change or Discontinuance;
b. to the greatest extent under its control, afford Pepwave an opportunity to conduct a Last Time Buy within a commercially reasonable timeframe with a mutually-agreed quantity prior to the effective date of the Substantial Change or Discontinuance.

7.2 In respect of any Purchase Orders already accepted by the Supplier, Pepwave is not obligated to accept any Substantial Change or Discontinuance. Unless and until Pepwave has given a written endorsement of the Substantial Change or Discontinuance with respect to the Purchase Order, the Supplier must continue to provide the Deliverable as is originally required, without regard to the Substantial Change or Discontinuance, for all Purchase Orders accepted by the Supplier prior to the effective date of the Substantial Change or Discontinuance.

8. OWNERSHIP ETC.

8.1 Tangible Assets. Unless otherwise agreed by parties in the form of a legally-binding agreement, all tangible assets, including but not limited to tools, molds, materials, components, and equipment, paid for or supplied to the Supplier by Pepwave shall remain the property of Pepwave. These assets shall be:-

a. used only for the production of Deliverables for Pepwave;
b. insured by the Supplier at their full replacement value of the property for such period that the asset remains in the Supplier’s control, custody, or possession; and
c. returned to Pepwave in good condition and within a reasonable timeframe upon completion of the relevant Purchase Order, except where depleted in production of the Deliverables for Pepwave or otherwise instructed by Pepwave in writing.

8.2 Intangible Assets and Intellectual Properties.

a. All the pre-existing materials belonging to Supplier’s (and/or the Supplier’s licensors) used in the provision of the Deliverables to Pepwave, along with the Intellectual Property Rights therein, shall continue to be owned by the Supplier (and/or the Supplier’s licensors, as appropriate). Nevertheless, the Supplier hereby grants Pepwave an irrevocable, royalty-free, and perpetual license to use, copy, or modify such pre-existing materials belonging to Supplier or use the Intellectual Property Rights therein, but limited to the extent necessary for their proper application or functioning in the Deliverables.
b. Save as provided in subsection (a) or otherwise agreed between Pepwave and the Supplier in form of a legally-binding agreement, all intangible assets, including but not limited to designs, drawings, software, and methodologies, developed or acquired in connection with the Deliverables, along with the Intellectual Property Rights therein, shall be the exclusive property of Pepwave. The Supplier shall have no rights to use, modify, or distribute these intangible assets without Pepwave’s prior written consent.
c. Save as provided in subsection (a), all rights (including Intellectual Property Rights and droit morale rights) in the Deliverables shall be the exclusive property of Pepwave, and Pepwave does not grant any rights (whether express, implied, by estoppel, through exhaustion, or otherwise) to the Supplier.

9. CONFIDENTIALITY

9.1 Use and Access. Pepwave and the Supplier acknowledge the disclosure of any Confidential Information does not confer any rights, license, or interests of any kind in or to the Confidential Information to the receiving party. Pepwave and the Supplier agree to use the Confidential Information only for the purposes of performing their obligations or exercising its rights under these Terms and/or a Purchase Order, and to take all reasonable steps to prevent unauthorized disclosure of the other party’s Confidential Information. Except with the disclosing party’s prior written consent, each party will limit the use and disclosure of such Confidential Information to those of its employees and contractors with a bona fide need to access such Confidential Information for a party to perform their obligations or exercise its rights under these Terms and/or a Purchase Order, or in compliance with any auditing requirements under applicable laws or regulations; provided that all such employees and contractors are subject to confidentiality and non-disclosure obligations at least as protective as those set forth herein. Each party agrees to promptly notify the other party of any unauthorized disclosure or use of Confidential Information of the other party.

9.2 Return or Destroy of Confidential Information. Except for any copies required to be retained in compliance with any auditing requirements under applicable laws or regulations (for which the confidential obligation remains), upon request by the disclosing party, the receiving party shall return or destroy Confidential Information disclosed by the disclosing party and all copies thereof from any types of media, and shall destroy any notes, memorandum, projections, reports, or other documents prepared by the receiving party that contain or otherwise reflect the Confidential Information. Upon returning or destroying the Confidential Information as requested, the receiving party shall provide to the disclosing party a written certification signed by an officer of the receiving party that it has complied with this Section 9.2.

9.3 Violation. Pepwave and the Supplier acknowledge that a violation of its confidentiality obligation under this Section 9 will be a material breach of these Terms. Each party shall be fully responsible for any violation committed by the third party to whom it discloses the Confidential Information. In the event of unauthorized use, distribution, or disclosure of any Confidential Information, parties agree legal remedies may be inadequate and they may seek injunctive and other equitable reliefs.

9.4 Other Non-Disclosure Agreements. In the event that Pepwave and the Supplier has entered or will enter into other non-disagreement agreements, as far as such other non-disagreement agreements remain in force, without limitation to the generality of this Section 9, nothing herein shall be construed to affect the validity or enforceability of those agreements.

10. COMPLIANCE

10.1 Non-association with a Sanctioned Party. The Supplier warrants that it is not, and has never been, listed or named as, or otherwise associated with, a Sanctioned Party. The Supplier also warrants that it has not acted, directly or indirectly, for or on behalf of any such Sanctioned Party.

10.2 Compliance with Laws. The Supplier warrants that it is and shall continue to be in compliance with laws and regulations applicable to its business and operation, and that it will not, by any act or omission, put Pepwave in breach of any of the applicable laws and regulations. Such laws and regulations may include but are not limited to labor and anti-slavery laws, workplace safety regulations, environmental protection regulations, anti-corruption laws, data privacy regulations, and export control regulations.

10.3 Explicit Inclusion. The following is/are explicitly included within the ambit of this Section 10, to which the Supplier must not violate, and must not cause Pepwave to violate, whether intentionally or inadvertently, in the course of its manufacturing or provision of the Deliverables or fulfillment of any obligations owed to Pepwave:

a. the United States’ John S. McCain National Defense Authorization Act 2019 (NDAA), section 889.

10.4 Active Monitoring. The Supplier warrants to take all practical steps to monitor changes in applicable laws and regulations and to update its compliance procedures as necessary to remain in full compliance with this Section 10. The Supplier shall maintain accurate records as is necessary for verification of its compliance. Upon request by Pepwave, the Supplier shall furnish such records to Pepwave and/or certify its compliance.

10.5 Pepwave Policies. The Supplier agrees to observe Pepwave’s policies¹ and any updates thereof established to ensure the Supplier’s and Pepwave’s compliance with any applicable laws, regulations, rules, and good practices, including but not limited to the Supplier Policy, Anti-Corruption Policy, and Whistleblowing Policy.

10.6 Violation. A violation of this Section 10 will be a material breach of these Terms. The Supplier further warrants to notify Pepwave immediately if it becomes aware of any violation of these obligations, including if it or any of its Affiliates is or becomes a Sanctioned Party.

11. FORCE MAJEURE

11.1 Neither Pepwave nor the Supplier shall be liable for delay in performing, or failure to perform, any of its obligations under these Terms or a Purchase Order if such delay or failure is solely attributable to a Force Majeure Event.

11.2 If Pepwave or the Supplier (as the case may be) is prevented, hindered, or delayed from or in performing any of the obligations under these Terms or a Purchase Order due to a Force Majeure Event, it shall notify the other Party in writing of the occurrence of such event and the full circumstances thereof within three (3) Business Days after the occurrence of such event. The party affected by the Force Majeure Event shall use reasonable efforts to mitigate the effect thereof upon performance of its obligation under these Terms or a Purchase Order and to fulfil its obligations.

11.3 If the fulfillment of a Purchase Order is substantially prevented, hindered or delayed for a single period of more than thirty (30) calendar days on account of one or more events of Force Majeure, Pepwave shall have the right to cancel any Purchase Orders so affected or any part thereof. Any such cancellation will be effective immediately upon written notice to the Supplier. Pepwave shall not be held liable for any administrative fees, any costs, or expenses and any resulting damages. Pepwave shall be liable for only such portions of Deliverables duly delivered prior to such cancellation. The Supplier shall refund Pepwave any amounts paid for such cancelled Purchase Orders (or such portion thereof) within seven (7) calendar days from receiving the written notice. In all other cases, the Parties shall negotiate in good faith to develop a mutually-satisfactory solution.

12. INDEMNITY

12.1 Without limitation to any other Sections in these Terms, the Supplier shall indemnify Pepwave against any and all liabilities, damages, and losses (including all direct, indirect, or consequential losses, as well as loss of profits, revenue, or reputation), interests, costs, and expenses (including all reasonable professional fees) suffered or incurred by Pepwave arising out of or in connection with:-

a. any claim made against Pepwave for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with Pepwave’s supply, sale and resell, or use of the Deliverable, except to the extent that the claim is attributable to the design of the Deliverables (or any part thereof) for which Pepwave is responsible;
b. to the extent that the claim is attributable to the acts or omissions of the Supplier, its employees, agents, or subcontractors, any claim made against Pepwave by a third party for death, personal injury, or damage to property arising out of, as a result of or in connection with defects in the Deliverables; and
c. to the extent that the claim is attributable to the Supplier’s failure to perform due delivery described in Section 3.1, any claims made against Pepwave by a third party for any failure or delay to supply the Deliverables as a result of the Supplier’s failure.

13. TERMINATION AND CANCELLATION

13.1 Without prejudice to any of its rights or remedies, Pepwave may also terminate all contractual relationships with the Supplier formed under these Terms (a “Termination”) or cancel all Purchase Orders pending to be fulfilled by the Supplier or any portion thereof (a “Cancellation”) if:-

a. there is a change of Control of the Supplier;
b. the Supplier ceases to do business, becomes insolvent, or is unable to repay its debts; or
c. the Supplier commits a material breach of these Terms.

13.2 Without prejudice to any of its rights or remedies, Pepwave may cancel any Purchase Orders so affected and pending to be fulfilled by the Supplier (or any portion thereof) (also a “Cancellation”) if:-

a. the Supplier commits a breach of these Terms that is not capable of remedy; or
b. the Supplier commits a breach of these Terms that is capable of remedy but fails to do so within thirty (30) days after receiving written notice from Pepwave regarding the breach.

13.3 Notice of Termination / Cancellation. Unless otherwise specified in the notice, a Termination or Cancellation (as the case may be) will be effective immediately upon written notice to the Supplier. A notice of Termination shall also be deemed as a notice of Cancellation of any and all Purchase Orders (and such portion thereof) pending to be fulfilled by the Supplier. A notice of Cancellation cancels such Purchase Orders or such portion of a Purchase Order prescribed therein but does not have the effect of a Termination.

13.4 Effect of Termination / Cancellation. The Termination or Cancellation does not affect any accrued rights or remedies a Party may have. Pepwave shall be liable for only such portions of Deliverables duly delivered prior to the Termination or Cancellation. Pepwave shall not be held liable for any administrative fees, any costs or expenses and any resulting damages. The Supplier shall refund Pepwave any amount paid for such cancelled Purchase Orders (or such portion thereof) within seven (7) calendar days from receiving the written notice. Where necessary, the Supplier shall work together with Pepwave in good faith toward a transitional plan. Pepwave reserves the rights to purchase from a third party a like quantity of an alternative Good that is similar in Specifications and quality to the Deliverables, and the Supplier shall be liable to reimburse Pepwave any additional costs therefrom, including any increase in price for securing the alternative Goods.

13.5 Survival. Sections 1, 4.4, 6.3-6.4, 8, 9, 12, 13.4, and 14 will survive the Termination or Cancellation.

14. MISCELLANEOUS

14.1 Governing Law and Jurisdiction. These Terms, all Purchase Orders, and matters in connection thereto or arising therefrom shall be governed and interpreted in accordance with the laws of the Hong Kong Special Administrative Region, without reference to any choice-of-laws or conflict-of-laws principles. The parties hereby irrevocably submit to the non-exclusive jurisdiction of the courts of Hong Kong. However, prior to bringing any matters to court in connection to or arising from these Terms or any Purchase Order, the Supplier and Pepwave will attempt in good faith to resolve any dispute or claim through negotiations.

14.2 Severability. If a court or adjudicator of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be amended to achieve as nearly as possible the original intent of the parties, and the remainder provisions will remain in full force and effect.

14.3 Waiver. No delay or failure by either party to exercise any of its powers, rights, or remedies under these Terms shall operate as a waiver. Pepwave’s acceptance of, or payment for, all or any part of the Deliverables supplied shall not be deemed a waiver of any of its rights or remedies. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

14.4 Notices. Any notice required under these Terms shall be in writing and shall be delivered:-

a. by hand or by prepaid post at the other party’s registered office or its principal place of business; or
b. by email, which:-
i. in respect of Pepwave, at [email protected];
ii. in respect of the Supplier, at the email address provided by the Supplier in the Application Form for Creation of Supplier Code or such email address subsequently designated by the Supplier having informed Pepwave.

A notice shall be deemed to have been received: (i) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; (ii) if sent by prepaid post, on the second (2nd) Business Day after posting; or (iii) if sent by fax or email, at the time of transmission.

14.5 Relationship of Parties. The Supplier acknowledges that it is engaged as an independent contractor. There is no relationship of agency, partnership, joint venture, employment, or franchise exists between the parties. Neither party nor its employees has the authority to bind or commit the other party in any way or to incur any obligation on its behalf. Nothing shall prevent Pepwave from procuring services which are the same as or similar to the Deliverables from any third party.

14.6 No Assignment. The Supplier may not assign any Purchase Orders or any obligations thereunder in whole or in part, without Pepwave’s prior written consent. Any attempt to assign its obligation without such consent from Pepwave will be nullified and void. Subject to the foregoing, these Terms will bind and inure to the benefit of each party’s permitted successors and assigns.

14.7 Subcontracting. The Supplier must obtain Pepwave’s prior written approval before appointing subcontracting any part of its obligation under these Terms and/or any Purchase Order. The Supplier shall not be relieved of any of the Supplier’s obligations under any Purchase Order by the appointment of a subcontractor. The Supplier is responsible for monitoring and ensuring the compliance of subcontractors with these Terms and applicable laws, and shall remain primarily liable for the acts or omissions of any subcontractors it appoints.

14.8 Entire Agreement and Amendments. These Terms and the underlying Purchase Order constitute the entire agreement between the parties relating to its subject matter. These Terms may be amended, modified, or deleted by Pepwave from time to time and the Terms as amended shall apply to and deemed accepted by the Supplier in respect of any and all Purchase Orders accepted by the Supplier subsequent to the effective date of the Terms as amended.

Remarks

Available for reference at https://www.pepwave.com/support/supplier-policies.

Supplier Policies