GENERAL TERMS AND CONDITIONS OF PURCHASE OF DELTATEL S.R.L.
1. INTRODUCTION – For purposes of this Purchase Order (PO), Buyer shall mean the Deltatel entity identified in the PO and Supplier shall be the Supplier entity identified in the PO. Individually, each is a “Party” and collectively, the “Parties”.
2. SCOPE AND ACCEPTANCE OF PURCHASE ORDER; ORDER EFFECTIVNESS – The terms and conditions of this PO will apply to Buyer’s purchase of hardware, materials, products and services (collectively “Product(s) and Service(s)”) and/or licensing of software (“Software”) described on this PO or an attachment to this PO. Supplier acknowledges that this PO will be binding on both Parties and no signature by either Party is required. Supplier waives the application of Supplier’s own terms of sale, licensing and delivery, which shall not become a part of this PO either by Buyer’s silence or Buyer’s acceptance of Products, Services and/or Software. In the event a contract number is identified in or on this PO or, if not identified, a current and applicable written contract exists (“Contract”), such Contract will apply to the purchases and/or licenses under this PO and, unless otherwise agreed in writing, supersedes this PO.
The Supplier shall, within 2 working days after having received the PO from the Buyer, either confirm and accept the PO, or reject it. If the Supplier has neither confirmed, nor rejected the PO within the above period, the Supplier is deemed to have rejected the PO.
3. PRICES AND DISCOUNTS – The prices and discounts will be as provided in this PO, an attachment to this PO or the applicable Contract related to this PO, as provided in Section 2. The applicable currency is the one specified in this PO. Prices shall include all costs associated with Supplier’s supplies, materials and services used to provide the Products, Software and Services including, but not limited to, those incurred in the manufacturing, packing, loading, transport and unloading of the Product(s), and in the recovery and processing of the packing materials and in the collection and treatment of the wastes originating from the Products, if such an obligation has to be borne by the Supplier by law, any resources required to provide the Services, and all licensing fees for any applicable Software. Unless otherwise specified in this PO or a contract, the prices are fixed and cannot be revised.
4. TAXES – All prices mentioned in this PO are exclusive of value added taxes, use taxes, federal excise taxes, turnover taxes, sales taxes or similar taxes, including any related interest and penalties (hereinafter all referred to as “VAT”). Any VAT payable on the Products, Software or Services by Buyer will be added to the prices and will be for the account of Buyer. Supplier will ensure that invoices are issued to meet the requirements for deduction of input VAT by Buyer, as applicable. Supplier shall be responsible for all other taxes.
In case of suppliers located outside Romania, the invoice payment may carry out additional withholding tax applicable under local or Double Tax Treaty (if any) requirements. In order to apply the most favourable rate between domestic tax rate and DTT rate, the foreign supplier of Software or Services is liable to provide Deltatel with a valid Tax Residency Certificate (i.e. issued for each year when invoice payment will take place). The Tax Residency Certificate should be made available in original before the first payment will take place. Until the Tax Residency Certificate is made available in original, all due payments will trigger and WHT of % as stipulated by DTT, at domestic tax rate.
5. INVOICING BY SUPPLIER - Supplier’s invoices shall not be submitted to Buyer prior to the delivery of the ordered Products, Software and/or other deliverables to Buyer and/or, as applicable, completion of the Services and/or the acceptance of the Products, Software, other deliverables and/or Services by Buyer. Unless otherwise agreed upon in a Statement of Work (“SoW) attached to this PO, in no event shall the date on a correct invoice be earlier than the delivery and/or acceptance date, as applicable. In the event an incorrect date is placed on an invoice, Deltatel may exercise any rights and/or remedies it may have under this PO and/or at law and equity as it relates to such a misrepresentation and/or violation of law.
All of the following conditions will have to be met by an invoice in order to be considered validly drawn and for the term of payment to begin:
- Supplier’s invoices will contain the reference number of the relevant PO approved by Deltatel.
- Invoices will reflect accurately the quantity and description of the deliverables, as ordered and contained in the relevant PO
- The total amount invoiced will have to correspond to the amount of the PO
- Each invoice will be issued only for deliverables ordered through a relevant PO, and no aggregation on one invoice for items ordered through different PO will be allowed.
In addition to the conditions mentioned above, invoices for service provision will cumulatively meet the following conditions:
- Invoices will be accompanied by sufficient back-up documentation tailored to the type of service provided, as required by the tax provisions in force (work statements, time-sheets, progress reports, etc). In case the object of the PO is services, the Supplier is obliged to attach to the invoices the reports related to the work performed. By means of such reports, the Supplier will substantiate the Services required and prove they have been effectively performed.
- Invoices will have enclosed a certificate of acceptance signed by Supplier and accepted by Deltatel
6. PAYMENT BY BUYER - Payment shall be effected within 90 (ninety) days from the end of the month of the date of complete and successful delivery of Products/Services (including documents to be provided by Supplier) and the receipt of valid and undisputed invoice, unless otherwise specified in the text of the order or Contract with the Supplier. A “valid” invoice is an invoice that meets Deltatel’s invoicing requirements including, but not limited to, correctly reflecting the fees/prices as agreed upon and quantity/volume ordered as well as the description of the Products, Software and/or Services ordered and provided. In case of delayed payment, Supplier shall notify Deltatel thereof and Deltatel shall thereafter expedite the payment. In case of further delay, Supplier shall be entitled to claim interest on the delayed amount in accordance with the applicable legislation.
7. SHIPPING AND DELIVERY (a) All deliveries shall be made to the place specified in this PO and shall be accompanied by a Delivery Note or invoice in copy, on which the PO number, the PO Line number and the applicable Buyer identification number shall be specified. (b) Partial deliveries are prohibited unless agreed by Buyer in writing. (c) Unless otherwise agreed upon, Products shall be delivered DDP in accordance with the International Chamber of Commerce Incoterm 2010, inclusive of packaging cost and net of any duty; all risks of loss and damages shall be borne by Supplier until the delivery is made. (d) Products shall be delivered in suitable packaging and each handling unit must contain a packing list. The package label must display the Buyer PO number, PO item line , Buyer identification number and the quantity of Product per packaging; (e) The packages shall be carriage paid and no deposit may be charged to Buyer under any circumstances unless Buyer gives prior written agreement thereto; in such event, such charges shall be indicated on a separate Delivery Note, which complies with current standards and regulations. (f) The signature on the Delivery Notes shall serve only to certify arrival of the packages and may not, under any circumstances, be deemed to discharge Supplier from liability for the PO.
Deltatel will not be liable in any respect for any Products supplied in excess, even in case of temporary delivery and possession of extra ordered Products at its premises.
Should Supplier become aware of reasons to believe that the agreed delivery date cannot be met, Supplier shall immediately notify Deltatel in writing, stating the cause of the delay and an estimated delivery date. Such notification shall not limit Supplier's liability for delay according to this purchase order or applicable law. If Supplier fails to give such notice in due time, Deltatel shall be entitled to compensation for all additional costs and expenses incurred as a result thereof which Deltatel could have avoided if the notice had been duly given.
8. TITLE AND RISK OF LOSS – Unless otherwise required by local law, title and risk of loss to Product(s) will vest in Buyer when the Product(s) is delivered according to the delivery terms on this PO or otherwise agreed upon. If additional services are to be performed after delivery, Supplier will retain risk of loss until such services have been performed and the Product(s) is accepted by Buyer or Buyer’s customer, as applicable.
9. ACCEPTANCE AND REJECTION - Acceptance of the Products, Software and/or Services shall occur after verification by Buyer that the Product, Software and/or Services conform to the PO and/or applicable SOW and, where applicable, after receipt and acceptance by Buyer or Buyer's representative of the sales documents, in particular all documents set forth in this PO. Supplier shall also give Buyer all information and documents relating to the safety and use of the Products and/or Software. Delivery of and/or payment for the Products, Software and/or Services by Buyer shall not constitute acceptance. Buyer may reject non-conforming shipment(s) or deliveries of Products and/or Software and (i) return the shipment, in whole or in part, for full credit including, but not limited to, transportation charges; (ii) accept a conforming part of the shipment or delivery; and/or (iii) replace any rejected part of the shipment or delivery with third party products and/or software, with any additional costs reimbursed by Supplier. Until replacement is made, the rejected Product and/or Software shall remain at the point of delivery, at the Supplier’s risk of loss and expense.
10. ON TIME DELIVERY – Compliance with the delivery lead times is an essential condition of the PO. Supplier will make delivery of a shipment on the scheduled and agreed upon delivery date specified in this PO and/or meet the agreed upon milestone(s) and/or completion date(s) for Services as provided in this PO and/or a SoW. In addition to Buyer’s other rights and remedies under this PO or at law and/or equity, Supplier will be liable for any liquidated damages assessed against Buyer by a customer as a result of a late delivery by Supplier. Buyer shall be protected by the full extent of statutory warranty. Irrespective of this, Buyer shall be entitled to claim from Supplier, at Buyer’s discretion, either a cure of the default or a new delivery date. The right of Buyer to claim damages instead of performance remains expressly reserved by Buyer. In the event of late or unconformity in delivery/execution, the Supplier will be liable, for each day of delay, to pay of a penalty equal to 0,5% of the value of the Services and/or Products delivered late, with unconformities or incomplete. Penalties will be payable by the Supplier at the receipt of Deltatel’s invoice.
11. CHANGES - Buyer may require changes to this PO at any time. Supplier shall inform Buyer as soon as possible of the new delivery date and extra costs (if any) and, more generally, of any other effect on the PO directly arising from such changes. Any price and/or schedule adjustments must be mutually agreed upon. Supplier’s performance of such changes shall not be delayed during any negotiations for adjustments. In case of disagreement upon such adjustment(s), the PO may, at the Buyer’s sole discretion, either be implemented according to the previous agreed conditions or terminated without compensation to Supplier.
12. PO CANCELLATION and SERVICES/WORK TERMINATION – Buyer may at any time terminate or cancel this PO and/or terminate any Services and/or SoW, in whole or in part, by written notice to Supplier. POs may be cancelled prior to shipment, delivery and/or acceptance of Products, Software and/or Services without liability to Buyer. Buyer’s liability for terminated Services will be limited to the amount due for Services performed and accepted as of the date of cancellation and/or termination. A Party may terminate the Services or cancel this PO in the event a material breach is not cured thirty (30) days after notice by the non-breaching party.
13. HARDWARE WARRANTY - Supplier warrants that hardware will be new and free from defects in design, material and workmanship, and will conform to, and perform in accordance with, the specifications, drawings and samples and documents provided for such hardware for the longer of: (i) twenty-seven (27) months from the date of delivery to Buyer; (ii) twenty-four (24) months after acceptance and/or installation by Buyer or Buyer’s customer, as applicable; or (iii) such greater period as may be specified in this PO and/or a SoW. If hardware contains manufacturers' warranties, Supplier hereby assigns such warranties to Buyer and, as applicable, Buyer’s customer(s). Software (firmware/operating system software) provided in such hardware will have the same warranty period as the hardware. In addition, such Software will be warranted as set forth in Section 14 below.
14. SERVICES WARRANTY - Supplier warrants to Buyer and, as applicable, Buyer’s customer(s), that Services will be performed in a diligent, work person like and professional manner, in compliance with industry standards, any relevant laws and regulations, and in accordance with the agreed upon SoW and/or specifications, drawings and documentation related to such Services.
15. SOFTWARE WARRANTY – Supplier warrants that Software licensed hereunder will be free of material errors, viruses, open source code and malicious codes, and will perform according to the specifications and documentation for such Software, upon delivery. Supplier warrants and represents that it is in compliance with any applicable third party licenses related to the Software or Product provided under this PO including, but not limited to, free and/or open source software licenses (FOSS). Supplier warrants and represents that in no event will the intellectual property rights of Buyer, Buyer’s customers’ or any third party performing on behalf of Buyer be subject to any FOSS licenses and Supplier shall indemnify Buyer, Buyer’s customers and any other related third party provided by Buyer for any damages resulting there from.
16. WARRANTY EXTENSION, SURVIVAL AND REMEDIES – (a) Warranty Extension and Survival. These warranties (i) extend to the future performance of the Products, Software and Services, (ii) will continue for the applicable warranty period, and (iii) will survive inspection, acceptance and payment. (b) Remedies. Product, Software and/or Services not meeting the warranties will be, at Buyer's option, returnable for a refund, or subject to repair, replacement and/or re-performance at no cost to Buyer or, as applicable, Buyer’s customer(s). Transportation costs and risk of loss and damage in transit for nonconforming and replaced Products and/or Software will be borne by Supplier. Repaired and replacement Products and Software will be warranted as new and shall be warranted for the longer of the remaining warranty period of the replaced or repaired Products or Software or sixty (60) days from delivery to and acceptance by Buyer.
17. SUPPORT AND SUBCONTRACTING – (a) Technical Support: Buyer will be entitled to ongoing technical support, including field service and assistance. Ongoing technical support via telephone will be at no charge (b) Subcontracting: Supplier will not, without the prior written consent of Buyer, subcontract the Services or work to be performed by Supplier under this PO and/or the applicable SOW, in whole or in part.
18. QUALITY REQUIREMENTS AND TRACEABILITY -(a) Supplier shall be responsible for insuring that Products and other deliverables furnished hereunder have undergone or have been subject to quality assurance and quality control activities and procedures, which may include performance measurements, testing, quality process reviews or inspections. Supplier’s quality management system shall provide for identification and management of risks, the early and prompt detection of actual or potential material deficiencies, trends or conditions which could result in unsatisfactory quality and/or epidemic failures, and for timely and effective corrective actions. (b) Subject to a three (3) calendar day prior notice to Supplier, Buyer or Buyer’s representative shall be entitled to carry out quality control inspections/audits at the Supplier’s production sites before or during performance of the PO. The quality control inspection/audits carried out by Buyer shall not reduce Supplier’s contractual liability and it shall not affect Buyer’s right to refuse all or part of the Products and/or other deliverables at delivery. (c) Supplier undertakes, upon request of Buyer, to communicate all information which will enable it to identify the origin, place and date of manufacture of the Products, Software and/or other deliverables, in addition to the serial or batch numbers, if required. Supplier agrees to provide Buyer with all information considered as necessary with regard to the French, US or other applicable country’s export and import control regulations and, in particular, Supplier shall provide Buyer, when applicable, with the U.S Export Control Classification Number applicable to the Products and/or Software.
19. ENVIRONMENTAL HEALTH AND SAFETY (EH&S) (a) EHS Standards - Supplier shall ensure that Products provided to Buyer under this PO comply with industry standards for EH&S and the applicable EH&S regulations, directives and/or laws of the delivery destination as defined under this PO including, but not limited to, regulations, laws and directives relating to restricted substances, energy efficiency and product environmental marking and/or other required information for such Products.
20. LIABILITY (a) Except for amounts due and owing as payment hereunder, Buyer’s liability to Supplier for any and all direct damages will not exceed the amounts paid under this PO. (b) In addition, neither Party will be liable for any incidental, indirect or consequential damages arising out of the breach of any provisions of this PO.
The Supplier shall indemnify and hold harmless Deltatel from and against any and all damages suffered and costs and expenses (including reasonable attorneys' fees) incurred as a result of any claim, suit or proceeding brought against Deltatel or any of its customers based on the allegation that the use, sale, distribution or other disposal of any services and/or goods constitutes an infringement of any intellectual property rights or applications thereof (including but not limited to patents, utility models, mask work protections, industrial designs, copyrights and trade-marks) or an unauthorized use of know-how, trade secrets or other proprietary rights.
In the event that the services and/or goods or any part thereof are in such claim, suit or proceeding held to constitute an an infringement or their further use, sale, distribution or other disposal is enjoined, Supplier shall promptly, at its own cost and expense but at Deltatel's option, either: (a) procure for Deltatel and/or any concerned customer the right to continue the use, sale, distribution or other disposal of such services and/or goods; (b) replace the same with non-infringing services and/or goods of equivalent function and performance; or (c) modify such services and/or goods so that they become non-infringing without detracting from function or performance. Supplier shall indemnify and hold harmless Deltatel from any liability for damages that the services and/or goods to which this order refers may cause to Deltatel or to its employees, to third parties and to third parties' property. The above shall apply even in the hypothesis that the services and/or goods ordered are incorporated by Deltatel in other goods. The content of this purchase order is not subject to any changes without Deltatel's written acceptance. If the content of this purchase order is not in accordance with what has been offered by Supplier, discussed or otherwise agreed upon by the parties, Supplier shall reject the purchase order by sending a written rejection to Deltatel.
21. GENERAL INDEMNITY - Supplier will indemnify, defend and hold harmless Buyer and its affiliates and their respective customers, employees, officers, directors, successors and assigns from any losses, damages, liabilities, fines, penalties, and expenses (including reasonable attorneys' fees) related to any third party claims that arise out of or result from Supplier’s acts or omissions related to this PO, and pay any reasonable attorney’s fees and all damages so awarded by a court of competent jurisdiction or consented to in a settlement agreement between Supplier, on behalf of Buyer, and such third party.
22. COMPLIANCE WITH LAWS – (a) Supplier and its respective agents and affiliates shall, and shall cause their respective employees to, comply with all applicable local, national, regional and international laws, ordinances, regulations, codes, standards, directives and international conventions and agreements to the extent that any of the foregoing have the force of law by being directly enforceable by a governmental authority, a court or other proper tribunal (collectively “Laws”), including, as applicable, but not limited to, anti-bribery and records keeping laws, conventions and/or directives of each country in which such Party conducts business.
23. INSURANCE – Supplier will provide Buyer certificates or other written proof of insurance which complies with Buyer’s insurance requirements and the applicable law prior to performing under this PO.
24. DOCUMENTATION - Any documents provided to Supplier by Deltatel shall remain Deltatel's exclusive property and shall be returned to Deltatel upon request. The documents may not be copied, reproduced or distributed without prior express written approval by Deltatel. Documents specifically prepared as a result of Deltatel’s order of the services and/or goods and provided by Supplier to Deltatel, shall be the exclusive property of Deltatel. With respect to other documents provided by Supplier, Deltatel shall have the unrestricted right to copy and use such other documents for the purposes intended by Deltatel's order of the services and/or goods.
25. DATA PRIVACY AND PROTECTION – Supplier agrees that any collection, use, accessing, transferring, transmitting and/or storage (“Processing”) of personally identifiable information (“PII”) shall be in accordance with the data privacy and/or protection laws of the applicable country of residence of the data subject and/or owner of the PII. Each Party may collect the personal data of the other Party in cases where its processing is useful and/or necessary for performance of this order or for fulfilling obligations under Romanian or European Union laws or regulations prescribed by the Authority for the protection of personal data. Personal data shall be processed manually or automatically according to principles of lawfulness and propriety and in such manner as to protect its confidentiality, based on the provisions of the effective legislation. Personal data shall not be further communicated to third parties or otherwise divulged as provided in the information statement at the end of this article. By signing this order, both Parties declare that they have examined the information statement given below, that they consent to the processing described therein, and that they undertake for themselves and their own collaborators and subsuppliers to fulfill their obligation of confidentiality in respect of all the personal data of the other Party that has come to their knowledge under this order; such obligation shall continue to exist even after both Parties have ceased to process the other's personal data. The Supplier guarantees that any third-party personal data divulged during the performance of this order will be treated solely and exclusively for its purposes, in the manner and within the limits for the performance of obligations under this order and in any case in compliance with the legal regulations on the processing of personal data and the instructions received from the other Party.
INFORMATION STATEMENT : Deltatel processes your personal data exclusively for the performance of the purchase order and in compliance with legal obligations to which Deltatel, as personal data controller, is subject. The data collected is strictly necessary and obligatory for the above purposes. Processing is carried out mainly by means of electronic tools, the data is secured in servers and locations under Deltatel control and is processed exclusively by persons in charge to manage and execute tasks necessary for the performance of the order and disclosed only if necessary within the scope of the order itself or required by applicable laws.
26. SUPPLIER PERSONNEL- Except where prohibited by law, the following terms and conditions shall apply when Supplier Personnel are assigned to perform services for Buyer : (a) Defined - For purposes of this PO, the term "Supplier Personnel" means anyone performing the Services or furnished by Supplier to perform work under this PO including, but not limited to, Supplier's employees, consultants, representatives, agents, contractors and subcontractors, at all tiers. It is agreed that all such Supplier Personnel are not employees or agents of Buyer, and Buyer shall not exercise any direct control or supervision over Supplier Personnel, but Buyer’s authorized representative will be available for consultation. (b) Resources - Unless otherwise agreed upon by Buyer in writing, Supplier shall provide all of the necessary resources including, but not limited to, Supplier Personnel, to perform the Services and/or work in the country(ies) where such resources are requested or work is to be performed. Supplier shall be responsible for any and all compensation and expenses relating to the use and/or assignment of such Supplier Personnel including, but not limited to, social insurance and other tax payments related to and/or to be paid by and/or on behalf of Supplier Personnel, cost of benefits, travel and living expenses for non-local as well as local Supplier Personnel, whether such Supplier Personnel are assigned at the beginning of the Services and/or work or added as additional resources during the performance of the Services and/or work, costs of materials required to deliver the Services and/or perform the work and any other costs and expenses that Supplier may incur that have not been agreed upon in advance by Buyer under this PO and/or the applicable SOW. (c) Immigration - In the case of Supplier Personnel travelling abroad in the framework of this PO, all formalities related to immigration shall be managed, and the related costs paid, by Supplier in accordance with local law. (d) Supplier will be responsible for Supplier’s own labor relations with any labor organization either representing or seeking to represent Supplier Personnel.
27. ASSIGNMENT –This PO cannot be assigned, partially or totally, without the prior written consent of Buyer.
28. CONFIDENTIALITY - Any information, in any form whatsoever, that directly or indirectly concerns the Deltatel's products, plans, work, business, data and computer resources and/or organization (hereinafter "Information") and that comes to the Supplier's knowledge shall be treated as strictly confidential and shall not be communicated or disclosed to third parties, including sub-suppliers, in any way or form without the Deltatel's prior consent. In the event Deltatel gives such consent, the Supplier warrants that any third party, including subsuppliers, to which the Information is disclosed will be bound and will abide by the terms of the present article. Notwithstanding the foregoing, the Supplier may disclose Information to its employees and consultants having a need to receive Information to the end to the performance of this purchase order. The Supplier hereby warrants that any its employee or consultant to which Information is disclosed will be bound and will abide by the terms of the present article. The Supplier shall be bound to provide evidence of the above upon Deltatel's request. The Supplier shall continue to be subject to the obligations and warranties above for five years after the termination of this purchase order. Accordingly, the Supplier acknowledges that if a violation of the aforesaid obligations and warranties causes damage of any kind to Deltatel, the latter will be entitled to act against the Supplier to obtain compensation for the damage suffered, saving in any case Deltatel's right to terminate this purchase order.
The confidentiality obligation described above shall not apply to information that is or comes into the public domain for reasons not ascribable to the Supplier or to information that the Supplier can prove it has legitimately acquired from third parties.
29.ENTIRE AGREEMENT - This PO, along with the agreed upon SoW and any attachments, exhibits or other incorporated terms and conditions, is the Parties’ entire agreement as to the Products, Services and Software to be provided hereunder and, except as provided in Section 2, supersedes all prior agreements, proposals, communications and understandings, whether written or oral. This PO can only be amended in writing and signed by an authorized representative of each Party.
30. JURISDICTION AND APPLICABLE LAW – All disputes arising out or in respect to this PO shall be referred to the competent Romanian courts and shall be governed by the Romanian law.
