1. ACCEPTANCE AGREEMENT. Seller's commencement of work or shipment of the goods, whichever occurs first, constitutes acceptance of 3Com's purchase order and the terms and conditions stated herein. 3Com hereby objects to any terms proposed in Seller's acceptance or acknowledgment of 3Com's offer which add to, vary from, or conflict with the terms of 3Com's purchase order. Any such proposed terms shall not operate as a rejection of this offer but are deemed a material alteration, and this offer shall be deemed accepted by the Seller without the said additional or different terms. If 3Com's purchase order shall be deemed an acceptance of a prior offer by Seller, such acceptance is expressly limited to the terms contained on 3Com's purchase order and the terms and conditions stated herein.
2. PRICE. The articles shipped or work performed against 3Com's purchase order must not be invoiced at a higher price than shown on the face of 3Com's purchase order without the written consent of 3Com. The invoice must itemize transportation charges, including foreign inland freight and insurance and taxes separately, if applicable. If the price is omitted from the order, the price shall be the lowest prevailing market price. No charge will be allowed for packing, labeling, commissions, customs duties, storage, crating, or express handling unless indicated on 3Com's purchase order.
3. CONFIDENTIAL PROPRIETARY INFORMATION. Any information or data furnished by 3Com to Seller under 3Com's purchase order in the form of specifications, drawings, reprints, technical information, equipment, prototypes, forecasts, schedules, or other technical or business information shall be deemed 3Com Confidential Proprietary Information, shall remain 3Com's property, shall be kept confidential, and shall be promptly returned to 3Com at 3Com's request. Seller shall not disclose, without 3Com's written permission, any such information or data to any other person, or use such information or data for any purpose other than performing 3Com's purchase order. The obligations under this paragraph shall survive cancellation, termination, or completion of 3Com's purchase order. Unless otherwise agreed in writing, no commercial, financial or technical information disclosed in any manner or at any time by Seller to 3Com shall be deemed secret or confidential.
4. WARRANTIES. Seller expressly warrants that all goods or services provided under 3Com's purchase order shall be merchantable, free from defects in material and workmanship, of the highest quality, and shall conform to all applicable specifications and appropriate standards. If Seller knows or has reason to know the particular purpose for which 3Com intends to use the goods or services, Seller warrants that such goods or services shall be fit for such particular purpose. Seller further warrants that the goods are wholly new and contain new components and parts throughout and that Seller has good and warrantable title to the goods free and clear of all liens. Seller shall indemnify and hold 3Com harmless for all damages arising out of any breach of these warranties. In addition to the warranties above, Seller shall extend all warranties it receives from its vendors to 3Com, and to 3Com's customers. Breach of the warranties in this provision, or any other term of 3Com's purchase order, shall entitle 3Com to all available remedies, including those of the Uniform Commercial Code.
5. TERMINATION. 3Com may terminate all or any part of 3Com's purchase order at any time for its convenience upon written notice to Seller. Late deliveries, deliveries of products which are defective or which do not conform to 3Com's purchase order, failure to perform as agreed, and failure to provide reasonable assurances of future performance upon request, shall all be reasons allowing 3Com to terminate 3Com's purchase order for cause. In such event of termination for cause Seller shall be liable for any damages (or at 3Com's option, specific performance) due to Seller's breach or default. Neither party will be liable to the other for any delay or failure to perform if that delay or failure results from an unforseeable cause beyond its reasonable control, except that 3Com may terminate all or any portion of 3Com's purchase order without liability to Seller if such delay or failure to perform by Seller or on behalf of Seller extends beyond thirty (30) days of 3Com's requested delivery date. 3COM'S TOTAL LIABILITY FOR DAMAGES UNDER 3COM'S PURCHASE ORDER SHALL NOT EXCEED THE PRICE ALLOCABLE TO THE GOODS OR SERVICES GIVING RISE TO THE CLAIM.
6. INTELLECTUAL PROPERTY INDEMNITY. By acceptance of 3Com's purchase order, Seller agrees to indemnify 3Com against all claims, judgments, decrees, costs and expenses, and attorney's fees incident to any proceeding which may be brought against 3Com or its agents, distributors, customers, or other vendors based on a claim of alleged copyright, trademark, maskwork right, or patent infringement, as well as for an alleged claim of unfair competition resulting from similarity in design, trademark or appearance of goods or services furnished under 3Com's purchase order, unless the goods or services are of 3Com design or formula, and Seller agrees that it will, upon request of 3Com and at Seller's own expense, defend or assist in the defense of any action which may be brought against 3Com or its agents, distributors, customers, or other vendors for such infringement or claimed infringement or alleged claim of unfair competition. 3Com agrees to notify Seller promptly upon receipt of notice of infringement or information of such a suit having been filed.
7. INSIGNIA. If any Products are rightfully rejected or not purchased by 3Com which utilize 3Com's name, trademarks, trade names, insignia, symbols, or decorative designs, Seller shall remove same prior to any sale, use or disposition thereof.
8. MATERIALS, TOOLS AND EQUIPMENT. All tools, equipment, dies, gauges, models, drawings or other materials paid for or furnished by 3Com for the purpose of 3Com's purchase order shall be and remain the sole property of 3Com. Seller shall safeguard all such property while it is in Seller's custody or control, be liable for any loss or damage to such property, at 3Com's option procure adequate insurance, use it only for 3Com orders, and return it to 3Com upon request. Any such property described above whether furnished or ordered by 3Com and which may be in an unfinished state may be removed from Seller's premises or the premises of subcontractors upon request without further action or bond. In the event that 3Com removes such property that is not finished, 3Com will pay Seller a percentage of the order price that corresponds to the percentage of completion. Seller agrees to waive and hereby does waive any lien it may have in regard to such property and ensure subcontractors do the same.
9. INDEMNIFICATION. Seller shall defend, indemnify and hold 3Com harmless against all damages, claims or liabilities and expenses (including attorney's fees) arising out of or resulting in any way from any obvious or apparent defects or latent defects in the goods or services purchased under 3Com's purchase order, or from any act or omission of Seller, its agents, employees or subcontractors. This indemnification shall be in addition to all other obligations of Seller under 3Com's purchase order.
10. CHANGES. 3Com shall have the right to make changes in 3Com's purchase order at any time for its convenience upon written notice to Seller. Such changes shall be subject to an equitable adjustment in the performance schedule or purchase price, based on reasonable and unavoidable costs incurred by the Seller prior to notice of the change. Any claim of Seller for an adjustment must be submitted in writing to 3Com within thirty (30) days of the 3Com change notice.
11. INSPECTION. Seller's facilities, equipment, and goods and services purchased under 3Com's purchase order are subject to 3Com's inspection and acceptance. Payment for the goods and services delivered shall not constitute acceptance. Goods and services shall only be deemed accepted when they have actually been counted, inspected, and tested by 3Com and found to be in conformance with 3Com's purchase order. Goods rejected and/or goods supplied in excess of those ordered or delivered in advance of the delivery schedule may, in addition to 3Com's other rights, be returned to Seller at its expense, including all expenses of unpacking, examining, repacking and reshipping such goods. If 3Com receives goods or services with defects or nonconformities whether or not apparent on inspection, 3Com reserves the right to require a refund or replacement, as well as transportation costs and payment of damages. Nothing contained in 3Com's purchase order shall relieve Seller from the obligations of testing, inspection and quality control.
12. PACKING, DELIVERY AND SHIPMENT. All goods shall be packed and shipped in accordance with instructions or specifications on 3Com's purchase order. In the absence of any such instructions, Seller shall comply with best commercial practice to ensure safe arrival at destination at the lowest transportation cost. TIME IS OF THE ESSENCE ON 3COM'S PURCHASE ORDER. If goods are not delivered or services provided by the date specified, 3Com may terminate, without liability, 3Com's purchase order as to items not yet shipped or services not yet rendered, by notice effective upon receipt by Seller. In such instance, 3Com may purchase substitute items or services elsewhere and charge Seller with any loss incurred. If in order to comply with 3Com's required delivery date it becomes necessary for Seller to ship by a more expensive method than specified in 3Com's purchase order, Seller shall pay any increased transportation costs, unless the necessity for such rerouting or expedited handling has been caused by 3Com.
13. INSURANCE. If 3Com's purchase order includes services or work to be performed on 3Com's premises, Seller agrees to indemnify 3Com from all loss or damage arising out of such work, to observe the highest safety standards, to adhere to all 3Com work rules, safety standards and security requirements, to maintain insurance satisfactory to 3Com, and to furnish evidence of such insurance at 3Com's request.
14. COMPLIANCE WITH LAWS. Seller warrants that all goods and services supplied pursuant to 3Com's purchase order will have been produced and supplied in compliance with all applicable federal, state and local laws, orders, rules and regulations. Seller shall indemnify 3Com against any liability caused by any non-compliance with this provision.
15. GOVERNING LAW. 3Com's purchase order and the acceptance of the same shall be governed by and construed pursuant to the laws of Singapore. Nothing herein confers or purports to confer on any third party any benefit or any right to enforce any term of this Agreement pursuant to the Contract (Rights of Third Parties) Act.
16. ARBITRATION. Any dispute arising out of or in connection with 3Com's purchase order and/or the acceptance of the same, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in Singapore in accordance with the Arbitration Rules of Singapore International Arbitration Centre ("SIAC Rules") for the time being in force which rules are deemed to be incorporated by reference to this Section. The tribunal shall consist of one (1) arbitrator to be appointed by the Chairman of the Singapore International Arbitration Centre. The arbitration will be conducted in the English language, provided that any witness whose native language is not English may give testimony in his or her native language, with simultaneous translation into English (at the expense of the party presenting any such witness). Judgment upon the award rendered may be entered and shall be enforceable in any court of competent jurisdiction having jurisdiction over the parties. Notwithstanding any provision herein, 3Com may request any judicial, administrative, or other authority to order any provisional or conservatory measure, including injunctive relief, specific performance, or other equitable relief, prior to the institution of the arbitration proceeding, or during the proceeding, for the preservation of its rights and interests or to enforce specific terms that are suitable for provisional remedies.
17. GENERAL. 3Com's purchase order and any documents attached to or referred to on 3Com's purchase order constitute the entire agreement between the parties and can only be modified in writing signed by authorized representatives of both parties. No part of 3Com's purchase order may be assigned or subcontracted without the prior written approval of 3Com. All claims for money due or to become due from 3Com shall be subject to deduction or set off by 3Com for any counterclaim arising out of this or any other transaction with Seller. 3Com's failure to enforce or insist on performance of any of the terms or conditions in 3Com's purchase order shall not operate as a waiver of that or any other right.
18. INSOLVENCY OF SELLER Without prejudice to Paragraph 5 or any other rights or remedies 3Com may have, if Seller becomes insolvent or bankrupt, makes an assignment for the benefit of creditors or admits in writing its inability to pay its debts as they mature or if a petition of any type be filed by or against Seller under any bankruptcy or other law for relief of debtors, 3Com in each and every such event may upon written notice to Seller, cancel 3Com's purchase order in whole or in part without any liability whatsoever to Seller.
19. ASSIGNMENT No subcontract, assignment or other transfer in whole or in part of 3Com's purchase order or of any monies due to or become due hereunder shall be binding upon 3Com, without 3Com's written consent. Payment of any claim under 3Com's purchase order shall be subject to set-off or counter claim for any present or future claims which 3Com or any of its affiliated companies, may have against Seller or any of its affiliates.
20. WAIVER Failure or delay on the part of 3Com to exercise any right, power or privilege hereunder shall not operate as a waiver thereof or any other subject, right, power or privilege.
21. SEVERANCE If any provision herein is found by a court of competent jurisdiction to be void or unenforceable, the said provision shall be modified as necessary to conform to such laws or, if such modification would destroy the intent of the parties, the said provision shall be severed from 3Com's purchase order and 3Com's purchase order shall be interpreted without reference thereto.