TERMS AND CONDITIONS OF SALE FOR PRODUCTS AND SERVICES

1. Entire Agreement.  These Terms and Conditions of Sale (“Terms and Conditions”), combined with the conditions specified in the quotation, represent the entire agreement between SG WIRELESS LIMITED (“SG Wireless”) and the Customer (each a Party and together the Parties) for purchase orders placed by the Customer and accepted by SG Wireless for standard products, Customer specified products (“Products”), design services and subscription services  (“Services”), unless superseded by a further agreement signed by both parties. Terms in SG Wireless’s Design Service Agreement, Subscription Agreement or quotation may supersede specific terms in these Terms & Conditions. In issuing a purchase order to SG Wireless, Customer agrees to be bound by these Terms & Conditions. Any additional or different terms and any pre-printed terms in any Customer purchase order or other written communication will have no legal effect unless agreed to in writing by SG Wireless. SG Wireless will provide Products or Services, as specified in the purchase orders issued by Customer and accepted by SG Wireless. Where software is provided by SG Wireless to Customer, whether or not embedded into Products, Customer acknowledges that use of that software is governed by SG Wireless or third party software license terms and conditions applicable to that software as set forth below in Article 5. SG Wireless reserves the right to modify these Terms and Conditions at any time without prior notice.

2. Delivery and Acceptance.  SG Wireless will use its reasonable efforts to meet Customer delivery requirements. SG Wireless will not be liable for any costs or expenses that might be incurred by the Customer as a result of a delay in delivery of the Products or Services. 

2.1 Products will be delivered Ex Works (Incoterms 2010) SG Wireless’s premises unless otherwise specified by SG Wireless.  SG Wireless transfers title and risk of loss to the Products upon delivery irrespective of whether or not SG Wireless has arranged for transportation according to Customer instructions.  Customer agrees to carry adequate insurance until such time as the Products are paid for in full. SG Wireless reserves the right to allocate production and delivery of Products to its customers at SG Wireless’s sole discretion and under any circumstances. Customer is solely responsible for costs of shipping and insurance after delivery to the SG Wireless designated delivery point. If SG Wireless incurs shipping or insurance costs on Customer’s behalf, Customer must promptly reimburse SG Wireless all such costs.  

2.2 Subject to the Warranty provisions of Section 10, Customer may reject Products or Services that are proved, to SG Wireless’s reasonable satisfaction, not to meet the relevant mutually agreed to or published specifications or, to have been materially damaged prior to delivery by SG Wireless.  In such an instance for Products, Customer will notify SG Wireless in writing within ten (10) calendar days of original delivery of Products and request a return material authorization (“RMA”) for rejected Products.  Once an RMA is issued, Customer shall have five (5) calendar days to return rejected Products to SG Wireless, at Customer’s risk and expense. Subject to the warranty provisions of Section 10, SG Wireless will then, at its election and cost, repair, replace or credit Customer for the rejected Products.  In the case of replacement, title to rejected Products shall pass to SG Wireless upon delivery to SG Wireless. In the case of rejected Services, SG Wireless will attempt to remedy the situation so that the Services are capable of meeting the Customer’s acceptance criteria.  The Customer may then conduct further acceptance testing. If, after such further acceptance testing as the Customer may reasonably determine, the Services still do not meet the acceptance criteria, the Customer may, by notice in writing to SG Wireless: (i) accept the Services subject to a reduction of the applicable project costs as agreed by the Parties and/or SG Wireless undertaking to remedy the Services within an agreed time; or (ii) reject the Services and terminate the Design Services or Subscription Agreement; or (iii) adopt such other course of action as the Parties may agree in writing. In the absence of earlier notification of rejection, Customer will be deemed to have accepted Products or Services ten (10) calendar days after delivery.

3. Specifications. SG Wireless reserves the right to change the specifications of any standard products or software at any time and without prior notice unless specifically agreed to in writing by SG Wireless. Unless Customer provides and SG Wireless agrees to particular specifications for Customer specified products in writing, standard products and software shall conform to the specifications in SG Wireless’s published data at the time of order confirmation.

4. Prices and Payment. Pricing is as indicated in the quotation. Price of Products and Services (i) exclude all taxes, including value-added taxes, tariffs, duties, or other governmental or regulatory charges, all of which shall, where SG Wireless is required by law to pay or collect them, be added to the price by SG Wireless and paid by Customer and (ii) are based on the financial conditions at the time of SG Wireless’s Order Confirmation. For Products not yet shipped or Services not yet completed, SG Wireless may adjust prices prior to delivery to take into account any significant increase in the cost of components, raw materials or other production or third party service related costs. Products will be shipped in SG Wireless standard packaging. If Customer requires non-standard packaging clear instructions for such packaging must be received by SG Wireless in reasonable time. Costs for such non-standard packaging will be borne by Customer. Unless otherwise stated, all prices refer to U.S. dollars and payment is due, without any set-off or deduction, thirty (30) days from date of invoice. If the Customer fails to make full payment by the due date SG Wireless may, in addition to its other rights and remedies, apply an annual late payment charge at the rate of two (2) percent per month, or if lower, the maximum interest rate permitted by law.

5. Software. For Products incorporating embedded Software, SG Wireless grants Customer a non-exclusive, non-sublicensable, and non-transferable copyright license under SG Wireless intellectual property rights to use such software embedded in the Products. In the case SG Wireless supplies Software that is not embedded but intended for use in conjunction with the Products, and where such Software is not subject to a separate license agreement, the sale of such Products grants Customer a non-exclusive, non-sublicensable, and non-transferable copyright license to Customer under SG Wireless’s intellectual property rights to (i) use the Software exclusively in conjunction with the Products and (ii) make and distribute object code copies of the Software as required for normal use of the Products. 

5.1 Customer shall not perform any action that would expose any SG Wireless provided Software or derivative works to any Open Source Software terms. Open Source Software refers to any software which may require SG Wireless to grant royalty free licenses under Open Source Software terms and/or to make source code available or grant permissions to third parties to create derivative works.

5.2 ALL SOFTWARE SUPPLIED BY SG WIRELESS IS PROVIDED “AS IS”. SG WIRELESS EXPRESSLY DISCLAIMS ANY WARRANTY, WHETHER EXPRESS OR IMPLIED, BY STATUTE OR COMMON LAW, REGARDING ANY SOFTWARE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AS TO USAGE, NON-INFRINGEMENT, MERCHANTABILITY, PERFORMANCE, QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE OR APPLICATION. 

6. Purchase Orders. For Customer specified products and except as otherwise agreed to by the parties in writing, the Customer authorizes SG Wireless to schedule production, purchase materials, including long lead-time items and unique components, to fulfill purchase orders, forecasts and, if applicable, upside requirements, based on material lead times, supplier minimum requirements and economic order quantities. Customer will be liable for all such materials in the event of a cancellation of a purchase order, reduction of forecast or other obsolescence. An order may be rescheduled once from its originally scheduled ship date per the table in Article 7. For blanket purchase orders, rescheduling applies to each date designated on the purchase order.  The Customer is responsible for carrying charges and for costs incurred by SG Wireless associated with such rescheduling, which cannot be mitigated by the reasonable efforts of SG Wireless in accordance with Section 9 herein. Any order that has been rescheduled may not be subsequently cancelled. If Customer cancels in whole or in part any purchase orders for Customer specified products, Customer will pay SG Wireless: a) the full Customer specified product price for any finished products or work in process, and b) for any costs associated with materials on hand or on order, which cannot be mitigated by the reasonable efforts of SG Wireless in accordance with Section 9 herein, and c) for any investment incurred by SG Wireless with the prior agreement of the Customer, and d) the pro-rated portion of the price of the cancelled orders which relates to SG Wireless’s value-add. Except in accordance with Section 2 above, refusal to accept delivery of an order will be treated as a cancellation.

7. Order Changes or Cancellations. Any requested changes or cancellations to purchase orders placed by the Customer for Products are subject to acceptance in writing by SG Wireless and subject to the following rules:

Notwithstanding the above table, certain Products are subject to special cancellation and reschedule terms that SG Wireless will communicate to Customer prior to order acceptance.

Changes or cancellation requests for Design Service or Subscription Agreements will be resolved per the terms of the specific agreement and discussion between the Parties.

8. Engineering Changes, and Specification. For Customer requested, specified and SG Wireless agreed to engineering changes to standard products, the Customer will be responsible for all costs associated with implementation, including if applicable, excess and/or obsolete inventory. Customer shall defend and indemnify SG Wireless against any infringement of intellectual property arising from use of a Customer provided specification. 

9. Obsolete and/or Excess Material, Inventory and Customer specified products. If for any reason, and at any time, material and/or inventory procured or Products manufactured pursuant to a Customer order for Customer specified products is rendered excess or obsolete, SG Wireless will provide Customer with notification of the potential cost of such excess or obsolete material and/or inventory and Products and make reasonable efforts for up to two (2) weeks, to mitigate that cost. After such two (2) week period, SG Wireless shall be entitled to deliver all remaining excess or obsolete material and/or inventory and Products to the Customer and invoice for the full costs thereof, along with the costs of any and all other materials for which SG Wireless remains liable, as well as reasonable handling and mitigation charges.  Such invoice shall be paid by Customer, without setoff or deduction, within seven (7) days from the date of the invoice.

10. Warranty. SG Wireless warrants that the Products shall conform to the applicable specifications referred to in Article 3 for a period of one (1) year unless otherwise specified in SG Wireless’s Design Service Agreement, Subscription Agreement or quotation and commencing from date of delivery. Samples, prototypes and pre-production/pilot Products are provided on an “AS IS” basis without warranty of any kind. This warranty will have no legal effect if the Product is (i) misused, damaged, modified, placed in an unsuitable physical or operating environment, maintained improperly, (ii) submitted to abnormal conditions (mechanical, electrical or thermal) during storage, installation or use, (iii) used in a non-standard environment requiring robustness not documented in the applicable specifications, (iv) exposed to excess use of the maximum operating parameters (temperature limit, maximum voltage etc.) defined by SG Wireless, (v) used incorrectly in a design or application by Customer, (vi) defective as a result of Customers design, specifications or instructions for such Products, (vii) caused to fail by a product or service not provided by SG Wireless, or (viii) subjected to any repair not authorized in writing by SG Wireless. This warranty does not include defects resulting from any Customer supplied design, specifications, documentation, test data, bills of materials, diagnostics, or any defects which are attributed to lack of design margin in the case of Customer specified product.  The warranty also does not include any Customer specified product(s) on which SG Wireless has not performed the normal manufacturing/testing/inspection process, at the Customer’s direction.  SG Wireless will have no liability for defects in Products where: (i) failure to identify or isolate such defects is attributable to Customer supplied or directed test hardware, software or procedures; (ii) such defects are attributable to any third-party supplied parts, components or materials (SG Wireless will however to the fullest extent possible pass through the benefit of any parts, components or materials warranties, if any, provided by such third-party suppliers to SG Wireless, to the Customer); or (iii) such defects result from third-party supplied designs or technology.  

THIS WARRANTY SETS OUT SG WIRELESS’S SOLE OBLIGATION AND LIABILITY, AND THE CUSTOMER’S EXCLUSIVE REMEDIES, FOR CLAIMS BASED ON DEFECTS IN OR FAILURE OF ANY PRODUCT OR SERVICE OR THE SUBJECT MATTER OF ANY SERVICE AND REPLACES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. IN NO EVENT SHALL SG WIRELESS’S LIABILITY FOR WARRANTY OR NON-WARRANTY CLAIMS EXCEED THE PURCHASE PRICE OF THE PRODUCT(S) FOR WHICH A CLAIM IS MADE. SG WIRELESS MAY AT ITS DISCRETION REPAIR OR REPLACE SUCH PRODUCT(S) OR ISSUE A CREDIT OR REBATE OF THE PURCHASE PRICE. IN NO EVENT SHALL SG WIRELESS BE LIABLE TO CUSTOMER UNDER ANY THEORY OF LIABILITY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES. REMEDIES SET FORTH HEREIN ARE EXCLUSIVE.

11. Customers Applications and Compliance. Customer is solely responsible for the design, validation and testing of its applications as well as for compliance with all legal, regulatory and safety requirements concerning its applications. Customer is expected to conduct qualification tests to verify correct operation of their designs over the range of environmental and other conditions that may be encountered in actual use.

11.1 Customer acknowledges that it has the requisite knowledge to create designs that (i) take account of dangerous failures, (ii) monitor such failures and their consequences and (iii) take steps to minimize such failures and take appropriate remedial actions. Customer agrees to thoroughly test designs, products and applications using Products prior to distributing or deploying them.

11.2 Industry Standards. Unless SG Wireless has specifically identified a Product as conforming to an industry standard, SG Wireless is not responsible for any failure to meet such industry standard requirements.

11.3 Life Critical Applications. SG Wireless Products may not be used in any life critical equipment, systems or applications where failure of such equipment, system or application would cause serious bodily injury or death. SG Wireless Customers will fully indemnify SG Wireless and its representatives against any damages, costs, losses and/or liabilities arising out of Customer's non-compliance.

11.4 Indemnification by Customer. Customer will fully indemnify SG Wireless and its representatives against any damages, costs, losses and/or liabilities arising out of Customer’s non-compliance with this Section 11.

12. Intellectual Property Indemnification. Should the SG Wireless Product(s), as delivered to Customer, be claimed to infringe a third party's intellectual property rights, SG Wireless will at its option and cost defend the claim or seek a compromise; should SG Wireless lose such a claim, it may either modify the Product(s) to avoid infringement or take out a license from the third party. If such a solution is not feasible, SG Wireless shall accept the return of the infringing Product(s) and shall reimburse the Customer up to the amount paid by the Customer for the Product(s). Such indemnification shall only be provided by SG Wireless subject to Customer (i) promptly notifying SG Wireless in writing of the claim of infringement and (ii) allowing SG Wireless to control, and co-operates with SG Wireless, in the defense and any related settlement action. Furthermore, such indemnification shall not apply to any claims of infringement (i) involving Customer specified products made by SG Wireless in compliance with the Customer supplied specifications, (ii) resulting from the combination of the Products and any other product, software or technology even if the Products are intended to be used in such combination, (iii) resulting from the programming of Product(s), except if programmed by SG Wireless, (iv) resulting from SG Wireless’s compliance with any industry or proprietary standard or Customer’s use of the Product to enable the implementation of any such industry or proprietary standard. Customer agrees to indemnify SG Wireless and hold SG Wireless harmless from any damages and costs arising out of or in connection with claims of infringement made against SG Wireless pursuant to (i), (ii), (iii) or (iv) above.

13. Limitation of Liability. ANY CLAIM FOR ALLEGED BREACH OR DEFAULT ARISING FROM INFRINGEMENT OR ALLEGED INFRINGEMENT OF ANY PATENT, TRADEMARK, COPYRIGHT, OR OTHER INTELLECTUAL PROPERTY RIGHT BY SG WIRELESS PRODUCT(S) SHALL BE LIMITED TO THE PROVISIONS SET FORTH ABOVE IN ARTICLE 12. IN ADDITION SG WIRELESS SHALL HAVE NO LIABILITY UNDER THESE TERMS AND CONDITIONS FOR ANY LOSS ARISING FROM ANY CLAIM MADE AGAINST CUSTOMER, OR FOR ANY INDIRECT, SPECIAL OR INCIDENTAL, CONSEQUENTIAL OR FOR PUNITIVE DAMAGES INCURRED BY CUSTOMER, INCLUDING WITHOUT LIMITATION COST OF REPLACEMENT, ANCILLARY COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCT(S) OR SERVICES, RETESTING, LABOUR COST, LOSS OF PROFITS OR LOSS OF USE, BASED ON ANY BREACH OR DEFAULT OF SG WIRELESS. CUSTOMER'S SOLE REMEDY AND SG WIRELESS'S SOLE AND TOTAL LIABILITY FOR ANY CAUSE OF ACTION, WHETHER IN CONTRACT (INCLUDING BREACH OF WARRANTY) OR TORT (INCLUDING NEGLIGENCE OR MISREPRESENTATION) OR UNDER STATUTE OR OTHERWISE SHALL BE LIMITED TO AND SHALL NOT EXCEED THE PRICE PAID FOR THE PRODUCT(S) OR SERVICES WHICH GIVE RISE TO THE CLAIMS. CUSTOMER SHALL ALWAYS INFORM SG WIRELESS OF ANY BREACH AND ALLOW SG WIRELESS REASONABLE OPPORTUNITY TO CORRECT THE BREACH.

14. Export Controls. The Customer is responsible for obtaining and being in compliance with any and all necessary licenses, consents, government documents and approvals prior to resale, import or any export or re-export or retransfer of Product(s), Software, technology or Services under the laws and regulations of any relevant jurisdiction. Customer agrees that it will be in full compliance with applicable laws and regulations for the export, re-export, transfer or import of the Product(s), Software, technology or Services. Customer will not supply Product(s) to any person, entity or country that is subject to sanctions or restrictions under any export control law or any International Sanctions Program. Customer will ensure that its distributors, re-sellers and end users comply with this Article 14. If Customer faces any delays or denials in obtaining the required approvals, SG Wireless shall be entitled to delay or cancel shipments accordingly in the case of denials without liability.

15. Resale Prohibited. Unless authorized in writing by SG Wireless, Customer shall not resell standard Products. If Customer breaches this Article, SG Wireless shall be entitled to cancel Customer’s orders and Customer agrees to fully indemnify SG Wireless from any and all resulting liability. 

16. Privacy. SG Wireless and Customer may collect, store and process personal data from each other in the normal course of business under these Terms and Conditions, and may transfer such personal data outside the jurisdictions where each party is located. The Parties agree that such personal data will be used and retained for the purposes related to the performance of these Terms and Conditions concerning the Products and Services sold hereunder and in accordance with applicable data privacy laws.

17. Credit Limits. SG Wireless reserves the right to unilaterally set credit limits from time to time for Customer in its sole discretion. In the event that Customer’s financial liability exceeds the amount of this credit limit, SG Wireless will give Customer notice of its default of this condition and, if not remedied within seven (7) days, SG Wireless has the right to take appropriate action to reduce its financial obligations. 

18. Survival Any rights or obligations under these Terms and Conditions, which by their nature continue after termination of these Terms and Conditions, will remain in effect until they are completed. 

19. Governing Laws, Jurisdiction and Venue. The provisions of the United Nations Convention on the International Sale of Goods shall not apply to the sale of Products or Services. The laws of the Hong Kong Special Administrative Region of China govern these Terms and Conditions and all transactions hereunder and without regard to principles of conflicts of law. The parties submit to the non-exclusive jurisdiction of the courts of Hong Kong.  The parties hereto expressly waive any right they may have to a jury trial and agree that any proceedings under these Terms and Conditions shall be tried by a judge without a jury.

20. Force Majeure.  If the performance of any obligation under these Terms and Conditions by either Party is prevented, restricted, or interfered with by factors beyond the Party’s reasonable control, including, but not limited to, (a) natural disasters; (b) acts of government; or (c) acts of third parties, including criminal acts, civil unrest, labor disputes, transport and delivery disruption, supply chain disruptions, cyber-crimes, or terrorism, the Party so affected shall be excused from such performance (other than the obligation to pay amounts due hereunder) to the extent of such prevention, restriction, or interference. Neither Party shall be in default if any delay or failure to perform any obligation hereunder (other than the obligation to pay amount due hereunder) that is caused by events beyond such Party’s reasonable control.

21. Assignment. Customer may not sell, assign, or delegate any rights or obligations under these Terms and Conditions to a third party, unless (a) the assignment is made to an entity that owns a controlling interest in the Customer; or (b) the assignment is approved by SG Wireless in writing. SG Wireless affiliates and subsidiaries may perform all or any part of SG Wireless’s obligations under these Terms and Conditions. 

22. No Third-Party Beneficiaries.  There are no third-party beneficiaries to these Terms and Conditions, except those expressly entitled to indemnification by Customer and SG Wireless under these Terms and Conditions. These Terms and Conditions will not confer any rights or remedies upon any person other than the Customer and SG Wireless and such indemnities, except the Customer and SG Wireless successors and permitted assigns.

23. Severability.   Each provision of these Terms and Conditions is severable, separate and distinct from every other provision.  In the event that any competent authority shall adjudge or determine that any provision of these terms and conditions is invalid, or unenforceable, or contrary to any applicable law, such adjudication shall affect only the specific provision or provisions so adjudged, and shall not affect any of the remaining provisions of these Terms and Conditions, and all such remaining provisions shall continue and remain in full force and effect.

Effective Date: Aug 19, 2019