HMD Global

Purchase Order Terms
& Conditions

 

1. Acceptance and Effect.

This purchase order (“Purchase Order”) is between HMD Global Oy, or its affiliate defined in the Purchase Order (“HMD”) issuing the Purchase Order and the supplier identified herein (“Supplier”) and covers:

a. Goods: the purchase of software and tangible goods

b. Services: The purchase/ordering of services

c. Deliverables: Any intellectual property or other work product developed specifically for HMD by Supplier or a subcontractor of Supplier as part of the Services

This Purchase Order is effective upon Supplier’s commencement of performance or the date of Supplier’s signature below, whichever is earlier. Except as set forth in Section 2 below, Supplier’s acceptance of this Purchase Order is expressly limited to these terms and conditions without counterproposal.

2. Relationship to Other Agreements.

The terms and conditions of this Purchase Order are the complete and binding agreement between HMD and Supplier except:

a. If multiple agreements with similar or contradictory provisions could apply to this Purchase Order, the parties agree the most favourable terms to HMD will apply, unless the result would be unreasonable, unconscionable, or prohibited by law.

b. Except as stated above in this Section 2, and other than Order Changes described in Section 8 and the Termination provisions in Section 12, additional or different terms will not supersede this Purchase Order unless the parties mutually execute a written document.

3. Packing, Shipment and Returns of Goods or Deliverables.

Unless specifically provided in this Purchase Order:

a. Packing.

(1) Price based on weight will include net weight only;

(2) Supplier will not charge HMD for packaging or pre-shipping costs, such as boxing, crating, handling damage, drayage, or storage.

b. Shipping.

(1) Supplier will mark all containers with necessary handling and shipping information, Purchase Order number(s), date of shipment, and names of the consignee and consignor;

(2) An itemized invoice and packing list, and other documentation required for domestic or international transit, regulatory clearance or identification of the Goods or Deliverables will accompany each shipment;

(3) HMD will only pay for the quantity received, not to exceed the maximum quantity ordered;

(4) HMD or its agent will hold over-shipments at Supplier’s risk and expense for a reasonable time awaiting Supplier’s shipping instructions;

(5) HMD will not be charged for shipping or delivery costs;

(6) Goods and Deliverables will be delivered post issuance of the Purchase Order date:

i. FOB to the HMD designated delivery location if the Goods and Deliverables originate in the same jurisdiction as the HMD designated delivery location; or

ii. DDP (Incoterms 2010) to the HMD designated delivery location for cross border delivery of Goods and Deliverables to the HMD designated delivery location; and

(7) Supplier will bear all risk of loss, damage, or destruction to the Goods or Deliverable, in whole or in part, occurring before final acceptance by HMD at the designated delivery location. HMD is responsible for any loss caused by the gross negligence of its employees before acceptance.

c. Returns.

Supplier will bear the expense of return shipping charges for over-shipped quantities or rejected items.

4. Invoices.

a. To the extent that electronic invoicing is available, Supplier will follow that process. If there is no electronic invoicing, invoices will be sent to the following email: invoices@hmdglobal.com

b. Invoice must contain the following information: Purchase Order number, item number, description of item, quantities, unit prices, extended totals, packing slip number, shipping, ship to city and state, taxes, and any other information reasonably required by HMD. Supplier will not charge HMD for researching, reporting on, or correcting any errors relating to its invoices. In those circumstances, Supplier authorizes the electronic invoicing provider to receive Supplier’s invoice data not yet constituting an original invoice and subsequently to apply an electronic signature to the invoice data to issue electronic invoices “in the name and on behalf of” Supplier.

c. HMD may dispute any invoice by providing oral or written notice or partial payment. HMD will make commercially reasonable efforts to notify Supplier in writing of any disputed amount within 60 days of receiving the applicable invoice. Neither failing to provide notice nor payment of an invoice is a waiver of any claim or right.

5. Payment Terms / Cash Discounts / Offset / Expenses.

a. After HMD accepts the Goods or Services and receives a correct and undisputed invoice (the “Create Date”), HMD will release payment by net 60 days (unless otherwise agreed post issuance of this purchase order)

b. HMD is not obligated to pay any invoice received from Supplier more than 120 days after HMD accepts the Goods or Services.

c. Payment of an invoice will not constitute acceptance of Goods, and is subject to adjustment for errors, shortages, defects or other failure of Supplier to meet the requirements of this Purchase Order.

d. HMD may set-off amounts owed to HMD against an amount HMD owes Supplier or Supplier’s affiliated companies. HMD will provide notice to Supplier within a reasonable time after the setoff.

e. Unless otherwise agreed, Supplier is responsible for all expenses incurred providing the Goods or Services and performing under this Purchase Order.

6. Taxes.

a. Except as otherwise provided below, the amounts to be paid by HMD to Supplier do not include any taxes. HMD is not liable for any taxes that

Supplier is legally obligated to pay, including, but not limited to net income or gross receipts taxes, franchise taxes, and property taxes. HMD will pay Supplier applicable GST or any other taxes it owes due to this Purchase Order and which the law requires Supplier to collect from HMD. If HMD provides Supplier a valid exemption certificate, Supplier will not collect the taxes covered by such certificate. Supplier will indemnify and hold HMD harmless from any claims, costs (including reasonable attorneys’ fees) and liabilities related to Supplier’s taxes.

b. If the law requires HMD to withhold taxes from payments to Supplier, HMD may withhold those taxes and pay them to the appropriate taxing authority. HMD will deliver to Supplier an official receipt for such taxes. HMD will use reasonable efforts to minimize any taxes withheld to the extent allowed by law.

7. Inspection and Acceptance.

a. The Goods and Services must meet the standards and specifications in this Purchase Order. HMD may cancel this Purchase Order if Supplier fails to comply with the Purchase Order standards and specifications.

b. All Goods and Services will be subject to HMD’s inspection and testing, at any time and place, including the period of manufacture and before final acceptance.

c. If any item provided under this Purchase Order is defective in materials or workmanship or not in conformity with the requirements, then HMD may reject it without correction, require its correction within a specified time, accept it with an adjustment in price, or return it to Supplier for full credit. When HMD provides notice to Supplier, Supplier will promptly replace or correct, at their expense, any item rejected or requiring correction. If, after HMD’s request, Supplier fails to promptly replace or correct a defective item within the delivery schedule, HMD may, at its sole option,

(i) replace or correct such item and charge the cost to Supplier,

(ii) without further notice terminate this Purchase Order for default, return the rejected item to Supplier at Supplier’s expense and Supplier will promptly refund any amounts paid by HMD for the returned item or (iii) require a reduction in price.

8. Order Changes.

HMD may suspend Supplier’s performance, increase or decrease the ordered quantities, or make changes for HMD’s reasonable business needs (each, a “Change Order”), by written notice to Supplier, including via e-mail, and without any notice to Supplier sureties, subcontractors, or assignees. Unless mutually agreed, a Change Order does not apply to change the Goods and Services timely and fully delivered before the date of the Change Order. If any change causes an increase or decrease in the cost of, or the time required for, the performance of the Purchase Order, an equitable adjustment shall be made in the price or delivery schedule, or both, and the Purchase order shall be modified accordingly in writing.

9. Tools and Equipment.

All tools, equipment or materials acquired by Supplier for use in providing the Goods and Services, which have been furnished to, paid for by or charged against HMD, including but not limited to specifications, drawings, tools, dies, molds, fixtures, patterns, hobs, electrodes, punches, artwork, screens, tapes, templates, special test equipment, gauges, content, data, and software, will remain or become HMD’s property, treated as confidential information, and delivered in good condition, normal wear and tear excepted, by Supplier to HMD’s designated delivery location.

10. Ownership and use of the parties’ respective intellectual property.

a. Each party will own and retain all rights to its pre-existing intellectual property and any intellectual property developed outside of the Goods and Services under this Purchase Order.

b. If Supplier uses any Supplier or third-party intellectual property in any Good or Service, Supplier will continue to own Supplier’s intellectual property. Supplier will grant HMD a worldwide, nonexclusive, perpetual, irrevocable, royalty-free, fully paid up right and license, under all current and future intellectual property, to use Supplier’s and third-party intellectual property consistent with HMD’s ownership interests.

c. HMD intellectual property.

(1) Supplier may obtain “HMD Materials” meaning any tangible or intangible materials (including hardware, software, source code, documentation, met methodologies, know how, processes, techniques, ideas, concepts, technologies, and data) provided by or on behalf of HMD to perform the Services. HMD Materials include any modifications to, or derivative works of, the foregoing materials, the trademarks and any data entered into any Supplier database as part of the Services.

(2) HMD retains all interest in HMD Materials and related intellectual property. Supplier has no right to sublicense HMD Materials.

(3) Regarding Supplier’s use of HMD Materials:

i. Supplier will not modify, reverse engineer, decompile, or disassemble HMD Materials except as allowed by HMD;

ii. Supplier will leave in place, and not alter or obscure, all proprietary notices and licenses contained in HMD Materials;

iii. HMD is not obligated to provide technical support, maintenance, or updates for HMD Materials;

iv. Supplier assumes the risk of loss, damage, unauthorized access or use, or theft or disappearance of HMD Materials in Supplier’s (or subcontractor’s) care, custody or control.

d. License to software and Intellectual Property in the Goods.

(1) Pass through warranties and indemnities. Supplier assigns and passes through to HMD all of the third-party manufacturers and licensors’ warranties and indemnities for the Goods.

e. Title to the Goods (other than software) will pass from Supplier to HMD on final acceptance.

11. Representations and Warranties. Supplier represents and warrants that:

a. Supplier has full rights and authority to enter into and perform according to this Agreement. Supplier’s performance will not violate any agreement or obligation between Supplier and any third party;

b. The Services will be performed professionally and be of high grade, nature and quality;

c. Supplier will provide to HMD all Goods and Services free from (i) any defects in design, workmanship, and materials, (ii) any liability for royalties, and (iii) any mechanic’s liens or any other statutory lien or security interest or encumbrance;

d. The Goods, Services, Deliverables and any Supplier IP or third-party IP provided to HMD under this Agreement:

i. Are not governed, in whole or in part, by an Excluded License. “Excluded License” means any software license that requires as a condition of use, modification and/or distribution, that the software or other software combined and/or distributed with it be

(a) disclosed or distributed in source code form;

(b) licensed to make derivative works; or

(c) redistributable at no charge; and

ii. Will not be subject to license terms that require any HMD IP, product, service, or any Supplier IP, or third-party IP licensed to HMD, or documentation which incorporates or is derived from the Deliverables, to be licensed or shared with any third-party;

e. The Goods, Services, Deliverables and any Supplier IP or third-party IP provided to HMD under this Agreement will not:

i. To the best of Supplier’s knowledge, infringe any patent, copyright, trademark, trade secret or other proprietary right of any third party; or

ii. Contain any viruses or other malicious code that will degrade or infect any Goods, product, service, or any other software or HMD’s network or systems;

f. Supplier will comply with all applicable laws, rules, and regulations whether local, state, federal or foreign;

g. Supplier will comply with and train its employees in all applicable laws against bribery, corruption, inaccurate books & records, inadequate internal controls and money-laundering. Supplier will not offer or give any employee, agent, or representative of HMD gratuities to secure any business from HMD or influence such person to alter the terms, conditions, or performance of any contract with or order from HMD, including but not limited to this Purchase Order.

12. Termination.

HMD may terminate this Purchase Order with or without cause. Termination is effective upon written notice. If HMD terminates for convenience, its only obligation is to pay for:

a. Deliverables or Goods it accepts before the effective date of termination; or

b. Services performed, where HMD retains the benefit after the effective date of termination.

13. Privacy and Data Protection.

a. “Personal Information” means any information provided by HMD or collected by Supplier under this Purchase Order:

(1) That identifies or can identify, contact, or locate the person to whom such information pertains; or

(2) That can be used to derive an individual person’s identification or contact information. Personal Information includes, but is not limited to: name, address, phone number, fax number, e-mail address, social security number or other government-issued identifier, and credit card information. To the extent any other information (e.g., a personal profile, unique identifier, biometric information, and/or IP address) is associated or combined with Personal Information, then such information is also Personal Information.

b. If Supplier collects or accesses any Personal Information as part of performing the Services, Supplier agrees to comply with the most current Data Protection Requirements applicable.

c. Compliance with Supplier Guidelines and Supplier Code of Conduct. Supplier will comply with the most current Supplier Guidelines and the Supplier Code of Conduct as communicated from time to time by HMD.

14. Subcontracting.

Supplier will not subcontract with any third party to furnish any Goods or Services without HMD’s prior written consent.

15. Indemnification.

Supplier will defend, indemnify and hold harmless HMD against all claims, demands, loss, costs, damages, and actions for (a) actual or alleged infringements of any third party intellectual property or other proprietary rights, which arise from the Goods and Services provided to HMD under this Purchase Order, (b) any claim that, if true, would constitute a breach of any Supplier warranty contained herein, (c) any act or omission of or failure to comply with applicable laws, rules or regulations by Supplier or Supplier’s agents, employees, or subcontractors, (d) any breach of confidentiality obligations, (e) the negligent or willful acts or omissions of Supplier or its subcontractors, which results in any bodily injury or death to any person or loss, disappearance or damage to tangible or intangible property, and (f) any claims of its employees, affiliated companies or subcontractors regardless of the basis, including, but not limited to, the payment of settlements, judgments, and reasonable attorneys’ fees.

16. Insurance.

a. Supplier shall obtain and maintain in force with a reputable insurance company, and on request give evidence of, adequate insurance policies relating to its obligations under the Purchase order. Service Provider's obligations under this clause shall in no way limit or diminish its indemnification obligations, or liability for claims covered, under the terms of the Agreement. If HMD reasonably determines that Supplier’s coverage is not adequate, Supplier will promptly buy additional coverage and notify HMD in writing.

17. Non-Disclosure of Confidential Matters.

If the parties have entered into a standard HMD Non-Disclosure Agreement, the terms of such agreement will apply to and be incorporated in this Purchase Order and all terms and conditions of this Purchase Order and HMD Materials will be deemed Confidential Information. If the parties have not entered into a standard HMD Non-Disclosure Agreement, then Supplier agrees that during the term of this Purchase Order and for 5 years thereafter, Supplier will hold in strictest confidence, and will not use or disclose to any third party, any HMD Confidential Information. The term "HMD Confidential Information" means all nonpublic information that HMD designates, either in writing or orally, as confidential, or which, under the circumstances of disclosure ought to be treated as confidential. HMD Confidential Information includes:

a. The terms and conditions of this Purchase Order;

b. Released or unreleased HMD software or hardware products;

c. Marketing or promotion of any HMD product;

d. Business policies or practices of HMD;

e. Customers or suppliers of HMD;

f. HMD Materials or any information provided by HMD under this Purchase Order or obtained or created by Supplier in the course of providing the Goods or Services; or

g. Information received from others that HMD must treat as confidential.

If Supplier has questions regarding what comprises HMD Confidential Information, Supplier will consult HMD. HMD Confidential Information will not include information

known to Supplier before HMD’s disclosure to Supplier, or information that becomes publicly available through no fault of Supplier.

18. Audit.

During the term of this Purchase Order and for 4 years after, Supplier agrees to keep all usual and proper records and books of account and all usual and proper entries related to its costs and expenses pertinent to this Purchase Order. During the above referenced period, HMD may audit and/or inspect the applicable records and facilities to verify statements or invoices issued by Supplier and confirm Supplier’s compliance with this Purchase Order. Any such audit will be conducted by HMD corporate internal audit personnel or by a certified public accountant firm selected by HMD Supplier agrees to provide HMD’s designated audit or inspection team reasonable access to the Supplier records and facilities. If the auditors determine that HMD overpaid Supplier, Supplier will reimburse HMD for any such overcharge. HMD will bear the expense of its auditors or inspection team. However, if the audit shows Supplier overcharged HMD by 5% or more during such audit period, Supplier will reimburse HMD for such expenses.

19. Assignments.

No right or obligation under this Purchase Order (including the right to receive monies due) will be assigned without the prior written consent of HMD. Any assignment without such consent will be void. HMD may assign its rights under this Purchase Order.

20. Notice of Labor Disputes.

Whenever an actual or potential labor dispute delays or threatens to delay the timely performance of this Purchase Order, Supplier will immediately notify HMD in writing of such dispute and furnish all relevant details. Supplier will include a provision identical to the above in each subcontract and, immediately upon receipt of such notice, give written notice to HMD.

21. Patent License.

Notwithstanding other conditions stated herein, if Supplier fails in performance according to the terms of this Purchase Order, Supplier, as part of the consideration for this Purchase Order and without further cost to HMD, automatically grants to HMD an irrevocable, non-exclusive, royalty-free right and license to use, sell, manufacture, and cause to be manufactured any and all products, which embody any and all inventions and discoveries made, conceived, or actually reduced to practice by or on behalf of Supplier in connection with a Deliverable under this Purchase Order.

22. Applicable Law.

and interpreted in accordance with the laws of Finland, excluding its rules for choice of law. All disputes arising out of or in connection with the present Purchase order shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. The arbitration shall be held in Helsinki, Finland. The language of the arbitration shall be English. The award shall be final and binding and enforceable in any court of competent jurisdiction. Nothing in the Purchase Order shall be deemed to limit the Parties' rights to seek interim injunctive relief or to enforce an arbitration award in a court of law.

23. Publicity; Use of Trademarks.

Supplier will not use any HMD trademark, Nokia trademark/logo or service mark or logo, or cause or permit to be released any publicity, advertisement, news release, public announcement, or denial or confirmation of the same, in whatever form regarding any aspect of this Purchase Order or the relationship between Supplier and HMD without HMD’s prior written approval. If such approval is granted, Supplier may only use HMD trademarks, service marks and logos identified and provided by HMD for the Goods and Services in compliance with prior agreed terms and conditions.

24. Severability.

If any court of competent jurisdiction determines that any provision of this Purchase Order is illegal, invalid or unenforceable, or if any terms are illegal, invalid or unenforceable under applicable law, the remaining provisions will remain in full force and effect.

25. Survival.

The provisions of this Purchase Order which, by their terms, require performance after the termination or expiration or have application to events that may occur after the termination or expiration of this Purchase Order, will survive the termination or expiration of this Purchase Order. All indemnity obligations will be deemed to survive the termination or expiration of this Purchase Order.

26.

In case of the execution of an Agreement between the parties, the terms of the Agreement will supersede the terms of this Purchase order and will be applicable to the parties hereto.