Vendor Guidelines

Annexure I Terms and Conditions of Purchase

IMPORTANT! READ CAREFULLY: THIS IS A LEGAL AGREEMENT. BY PROVIDING THE PRODUCTS AND/OR SERVICES THAT ARE DESCRIBED ON THE FRONT OF THIS ORDER, YOU (AS THE VENDOR) ARE BECOMING A PARTY TO THIS AGREEMENT AND HEREBY CONSENT, TO BE BOUND BY ALL THE TERMS AND CONDITIONS AS SET FORTH BELOW:

1. Order: The present terms and conditions, the agreement, this Annexure I and any schedule attached hereto (collectively the “Order”) is the agreement between Service Provider and OTI to sell and purchase or, lease or license, Service Provider’s products, software or services (collectively, “Products”). In the event of a conflict between the terms and conditions of this Annexure I and the agreement, the terms of the agreement shall prevail.
2. Term: This Order shall remain valid for the period agreed between the parties in the agreement.
3. Termination: OTI shall have a right to terminate this Order at any time without any reason by giving fifteen (15) day’s prior written notice to the Service Provider. Service Provider may terminate the Order for material breach of this Order where the breach is solely attributable to OTI by giving fifteen (15) day’s prior written notice, provided however, that such notice of termination shall be given only once OTI has failed to cure such breach within 60 days of the receipt of a notice regarding such breach. OTI may immediately terminate this Order for material breach of this Order by the Service Provider. Sections 6 (Confidentiality), 7 (Limitation of liability), 8 (Intellectual Property Rights), 9 (Indemnity), 22 (Notice) shall survive the termination or expiry of the Order.
4. Fees:
5. 1. In consideration of the satisfactory delivery or performance of the Product by the Service Provider, OTI shall pay the agreed upon fees and expenses. Expenses shall be agreed upon mutually in writing. Unless otherwise stated in writing by both parties, payment shall be made by OTI within 30 days from the date of acceptance of invoices, subject to OTI’s payment cycle which is twice in every month.
   2. Taxes are not included in fees and shall be borne by OTI except for income taxes which are attributable to the Service Provider or taxes which may be attributable to Service Provider as a supplier of the Product under applicable law. OTI shall pay the invoices after deducting any withholding taxes as may be applicable.

5. Warranty: Service Provider warrants that (i) it has good and marketable title to the Products and shall transfer good title to OTI upon delivery (unless this Order is for a lease or license which has been properly scheduled); (ii) services provided by Service Provider shall be completed by qualified personnel in a professional and workmanlike manner and in accordance with OTI’s requirements, current industry standards and reasonable care; (iii) each and every deliverable including software deliverables, completed under this Order shall conform to the specifications for the same as may have been mutually agreed to in writing by OTI and Service Provider; (iv) Service Provider, including any of its principals, owners, directors, officers, employees, consultants, affiliates, agents, and subcontractors: (a) will comply with all laws applicable to the parties under the Order relating to bribery and/or corruption (“Anti-Corruption Laws”); (b) has not and will not, in connection with this Order or in connection with any other business transactions involving OTI directly or indirectly make, promise to make, offer, give, authorize, solicit, or accept the giving of money any gift or other advantage, payment, or transfer anything else of value to or from any person, to any (1) governmental official or employee (including employees of government-owned and government-controlled corporations and public international organizations); (2) political party, official of a political party, or candidate; (3) intermediary for payment to any of the foregoing; or (c) any other person or entity, to obtain an improper advantage for OTI, Service Provider, or any third party, or secure the improper performance of that person’s function or misuse of that person’s position; to facilitate or expedite government action or approvals; (d) will not do, or omit to do, any act that will cause OTI to be in breach of any Anti-Corruption Laws; (e) will not directly or indirectly offer, give or authorize to any OTI employee or contractor, customers any gift, gratuity, service, favour, or anything else of value to influence or reward that employee or contractor or customer in connection with the Order; (f) will not accept, and shall promptly report to OTI, any request or demand for any undue financial or other advantage of any kind received by Service Provider in connection with the performance of the Agreement; and (g) represents and warrants that it has, with regard to any past action or omission related to the Order, acted consistently with each requirement  set forth above.
   Service Provider further represents and warrants that neither Service Provider nor any of its principals, owners, directors, or officers: (a) has been convicted of any offense involving bribery, corruption, fraud, or dishonesty; (b) has been or is the subject of any investigation, inquiry or enforcement proceedings by any governmental, administrative, or regulatory body regarding any offense or alleged offense under the Anti-Corruption Laws; or (c) has been, or is listed by any government agency as being, debarred, suspended, proposed for suspension or debarment, or otherwise ineligible for participation in government procurement programs or government contracts.
   Service Provider agrees to repair or replace at the sole discretion of OTI defective parts for the period of 60 days (or such greater period as applicable) from the date of its acceptance, at no additional cost to OTI. Any warranty provided by third parties to the Service Provider for Products shall be extended to OTI and shall be binding on the Service Provider. The Service Provider shall ensure that OTI receives the benefit of any third-party warranty and shall assist OTI in enforcing any rights under such warranty.
   OTI may require Service Provider to provide skilled personnel to perform certain services. If such personnel provided by the Service Provider are not up to the satisfaction of OTI, in its sole discretion, OTI shall reserve the right to ask for replacement and Service Provider shall immediately but in any case, not more than 2 working days shall provide such replacement.
6. Confidentiality: Service Provider shall keep in confidence and shall not disclose or make available to any third party any information, whether written or oral, including but not limited to products, services, operations, processes, plans or intentions, product information, financial information, employees, know-how, design rights, trade secrets, market opportunities, business affairs or other sensitive or proprietary information (Confidential Information) disclosed by OTI, without prior written approval from OTI. Service Provider’s obligation to protect Confidential Information shall survive expiration or termination of this Order and shall expire three (3) years after the termination or expiry of this Order. However, the Service Provider shall be under no obligations of non-disclosure if:
   1. The said information is available to the public without any breach of this Order; or
   2. The said information is or has been lawfully disclosed to the Service Provider by third party, who is lawfully entitled to disclose the same; or
   3. The said information is or has been independently developed by the Service Provider or in the possession of Service Provider without restriction without using the Confidential Information disclosed hereunder; or
   4. The said information is required by law to be disclosed, but only to the extent of such requirement; or
   5. OTI consents to such distribution or disclosure.

   Service Provider acknowledges that any breach of the confidentiality obligations set forth herein by Service Provider will give rise to irreparable injury to OTI, their respective subsidiaries and/or affiliated companies or any other owner of such information, inadequately compensable in monetary damages. Accordingly, OTI or such other party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available. Service Provider acknowledges and agrees that the covenants contained herein are necessary for the protection of legitimate business interests of OTI, and its respective subsidiaries and/or affiliated companies, and are reasonable in scope and content.

7. Limitation of Liability: OTI’s cumulative liability to the Service Provider for any loss or damage, for any cause whatsoever (including, but not limited to, those arising out of or related to this Order) and regardless of the form of action, shall be limited to 10 percent of the total amount paid by OTI under this Order on the date the loss arises regardless of anything stated in this Order. OTI shall not be liable to the Service Provider for any indirect, incidental, exemplary, punitive, special or consequential damages, including without limitation any damages for lost profits, revenue, data, or goodwill incurred by either Party or any third party, whether in an action in contract or tort, even if the Service Provider has been advised of the possibility of such damages.
8. Intellectual Property Rights: Unless agreed mutually in writing, all materials, inventions, deliverables, discoveries, ideas, processes or know-how prepared or developed by Service Provider  or Service Provider Personnel while performing the Services or providing the Products under this Order, including but not limited to, software code, documents, maps, sketches, diagrams, drawings, notes, reports, data models, programs sources and samples in any form (collectively, the “Work Product”) are the property of OTI. Each party shall retain the exclusive ownership of their own pre-existing materials. If Service Provider incorporates its pre- existing materials into the Work product, it shall disclose in writing such pre-existing materials. Service Provider hereby grants to OTI a nonexclusive, fully paid, worldwide, irrevocable license to make, use (for internal purposes or on behalf of third-parties), execute, offer to sell, sell, reproduce, display, perform, and distribute copies and prepare derivative works of Service Provider’s pre-existing materials and any derivative works thereof.  Service Provider shall provide the license to OTI for any third party materials used. Service Provider shall have no proprietary interest in the Work Product, and will not seek, and will require its employees, agents or subcontractors (“Service Provider’s Personnel”) not to seek any patent, copyright, trademark, registered design, or other protection for any rights in any Work Product.

9. Indemnity: Service Provider shall defend, indemnify and hold harmless OTI against any and all claims, demands, causes of action, damages, costs and/or expenses (including, without limitation, reasonable attorneys’ fees) arising out of or related to acts or omissions of Service Provider or Service Provider’s Personnel, any failure by Service Provider to perform its obligations hereunder, death or personal injury, damage to the property, misconduct, negligence, breach in Service Provider’s confidentiality obligations, or infringement of intellectual property rights. OTI shall promptly inform the Service Provider on receipt of such claims. Service Provider shall have the right to control the defense and settlement of any claim or action for which it is obligated to indemnify OTI under this Order, provided that Service Provider shall not enter into any settlement that imposes any liability or obligation on OTI without OTI’s prior written consent, such consent not to be unreasonably withheld or delayed. OTI shall have the right to participate in the defense of any such claim or action with its own counsel at its own expense.
10. Audit: OTI shall have the right during normal business hours to inspect, copy, review and audit Service Provider’s books and records (or portions thereof) in connection with the prices, discounts, credits and other performance obligations set out in this Order.
11. Independent Contractor: The parties are acting hereunder as independent contractors. Service Provider acknowledges that Service Provider and its personnel are solely responsible for withholding and paying income taxes related to the performance of services under this Order. Service Provider and its personnel are not entitled to receive any benefits that OTI offers to its employees. Service Provider acknowledges that none of its personnel performing the services shall become an employee of OTI and OTI shall have no obligations to pay any such personnel’s salary, national insurance, social security, or any other amount required by law or by contract to be paid to or in respect of any such personnel by his or her employer.
12. Insurance: During the term of this Order, Service Provider shall, at its own cost and expense, obtain and maintain in full force and effect, and subject to the applicable laws the appropriate insurance coverage, including but not limited to, employee liability, workers’ compensation, liability of any property or personal damage and professional liability in such amounts and coverage as is reasonably acceptable to OTI. Service Provider will provide OTI with a copy of certificates of insurance reflecting the above and naming OTI as an additional insured. Said Certificate will include a provision whereby thirty (30) days’ notice must be received by OTI prior to coverage cancellation.
13. Acceptance: OTI may refuse to accept or may return, at Service Provider’s expense, any Products that fail to conform to this Order and may also cancel this Order with respect thereto, in which event OTI shall be entitled to a refund of any amounts previously paid to Service Provider for such nonconforming Products. If OTI chooses not to return a nonconforming Product, Service Provider shall, at Service Provider’s sole cost and expense, and not later than 10 days from receipt of communication of such non-conformance correct, repair or replace (or, in the case of services, re-perform), any such nonconforming Products in a manner reasonably acceptable to OTI.
14. Force Majeure: Neither Party shall be liable for any delay or failure to perform its obligations, if delay or failure has resulted from circumstances beyond its reasonable control, including but not limited to acts of God or governmental act, political instability, epidemic, pandemic, flood, fire, explosion, civil commotion, war, and labor unrest, which is not reasonably within the control of the affected party. Each party shall give written notice to other party as soon as possible of becoming aware of such force majeure event. Anything to the contrary notwithstanding, if the force majeure events continue for ten (10) or more days, Service Provider acknowledges that OTI may terminate this Order without penalty or financial obligation of any type or kind.
15. Liquidated Damages (“LD”): Time is the essence of the Order. In case of any delay in providing the Product by the Milestones set out in the Agreement, OTI will suffer actual damages that will be impractical or extremely difficult to determine.  Service Provider agrees to pay OTI 0.5% of the total Order value per week that such Milestone is not met, subject to maximum of 10% of the total Order value. Such payment, is not a penalty, but is a reasonable estimate of the loss OTI will incur based on the delay, established in light of the circumstances existing at the time this Agreement is entered. Such amounts shall either be levied independent of the Order or deducted from future payments at the sole discretion of OTI. Such LD shall be charged/deducted without prejudice to the rights and remedies available to OTI under the law.
16. Permits and compliance with laws: Service Provider represents and warrants that it has all the necessary permits and approvals as required by applicable law to provide the Products.
17. Governing law and jurisdiction: This Order shall be governed by laws of Georgia, without regard to the conflicts of law principles thereof.
18. Arbitration: The Parties shall use good faith efforts to resolve any disputes arising from this Agreement. If Parties fail to resolve a dispute within 7 days from the date of its occurrence Parties shall refer such dispute to a panel of three arbitrators, each party shall appoint one arbitrator and such two arbitrators will mutually appoint third Arbitrator. Arbitration proceeding shall be conducted Atlanta, Georgia in accordance with the Commercial Rules of the American Arbitration Association.  The arbitrator’s award will be final and binding, and may be entered in any court having jurisdiction thereof.  The arbitrator will not have the power to award punitive or exemplary damages, or any damages excluded by, or in excess of, any damage limitations contained in this Agreement or any Statement of Work.  Each party shall bear its own attorney’s fees and costs related to the arbitration.  Any claim or action must be brought within two years after the cause of action accrues.
19. Non-Solicitation: Service Provider agrees that they will not directly or indirectly hire or solicit to hire any employee of OTI or its subsidiary or affiliate companies for the period of the Term and 1 year thereafter.
20. Subcontract: Service Provider agrees that they shall not assign, transfer or subcontract the Order without written consent from OTI.
21. Notices: Any Notices under this Order will be in writing and will be delivered either in person, or through postal mail, facsimile or email on the address mentioned above. The language use for such notice is English.
22. Assignment: Service Provider shall not assign or transfer any rights or obligations under this Order without the prior written consent of OTI. Any attempted assignment or transfer without such consent shall be null and void.
23. Severability: If any provision of this Order is held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired. The parties shall negotiate in good faith to replace any invalid, illegal, or unenforceable provisions with valid, legal, and enforceable provisions that achieve, to the greatest extent possible, the economic, business, and other purposes of the invalid, illegal, or unenforceable provisions.