General Terms and Conditions for Purchase of Products and Services

“RADCOM” shall mean the relevant RADCOM entity specified in the purchase order, and “Seller” shall mean the entity to whom the purchase order to which these terms and conditions are attached (the “PO”), was issued. “Deliverables” shall mean the products, services and any other items described in the PO. “Specifications” shall mean description and specifications of the Deliverables stated in the technical annex attached to the applicable PO. The term “Intellectual Property” shall include throughout the world any and all know how, processes, technologies, software, firmware, service, network or product architectures, Specifications, drawings, flow charts, discoveries, sketches, designs, models, samples, tools, technical information or data, inventions, discoveries, techniques, technical information and all related proprietary rights worldwide arising under law, including all (i) patents, patent applications and patent rights; (ii) rights associated with works of authorship including copyrights, copyright applications, copyright registrations; (iii) any right analogous to those set forth in this definition and any other proprietary rights relating to intangible property; and (v) divisions, continuations, renewals, reissues and extensions of the foregoing (as and to the extent applicable) now existing, or hereafter filed, issued or acquired.

  1. THE AGREEMENT. The terms and conditions contained herein constitute the entire agreement between the parties in relation to the sale and purchase of the Deliverables described in the PO (which together with these terms and conditions of sale, shall be deemed as the “Agreement“) and shall apply to all related quotations, sales and other pertinent POs. Any terms and conditions contained in any quotation, offer, acknowledgment, invoice or other communication of Seller, which are in conflict with and/or in addition to the terms and conditions herein, are hereby rejected and the terms and conditions herein shall govern and prevail.. Nothing contained in this Agreement shall constitute a minimum purchase commitment by RADCOM, and Seller is not RADCOM’s exclusive provider of Deliverables. Seller acknowledges and agrees, that RADCOM shall have the right to market, promote, sell and supply the Deliverables to, deploy them at, and provide support and maintenance services to, RADCOM’s end customers and their sites located worldwide, in connection with RADCOM’s and/or its third-party suppliers’ other equipment (including hardware and/or software) deployed or to be deployed at such end users’ sites.
  2. AMENDMENTS. RADCOM reserves the right to reschedule any delivery, increase or decrease any ordered quantity of Deliverables, cancel any PO or part thereof and make any changes to the Specifications, including but not limited to designs, drawings and components, up to14 (fourteen) days prior to shipment of the Deliverables; RADCOM shall not be subject to any charges due to such change.
  3. DELIVERY. Deliverables will be delivered pursuant to the Incoterms, schedule, via the carrier and to the place specified in the PO and include a certificate of origin. RADCOM’s PO number must appear on all shipping containers, invoices, bills, packing sheets, delivery tickets and bills of lading/airway bills. Time is and shall remain of the essence, and any delays in delivery shall be considered a material breach of this Agreement, entitling RADCOM to cancel the relevant PO or any part thereof, without prejudice to any other remedy it may be entitled to.
  1. ACCEPTANCE. RADCOM shall be entitled to inspect the Deliverables, and Seller acknowledges that the Deliverables are subject to acceptance by RADCOM. Deliverables received prior to RADCOM’s inspection and/or acceptance, shall not be deemed accepted until RADCOM has confirmed so explicitly in writing. Payment shall not constitute acceptance of the Deliverables. If the Deliverables supplied do not comply with the provisions set out in this Agreement and/or in the applicable PO and/or are not accepted by RADCOM, then without limiting its other rights or remedies, RADCOM shall have any and all of the following rights: (i) to reject the Deliverables (in whole or in part) and to return them to the Seller at the Seller’s own risk and expense; (ii) to require Seller to replace the rejected Deliverables, or to provide a full refund of the consideration paid for the rejected Deliverables; (iii) to refuse to accept any subsequent delivery of the Deliverables which the Seller attempts to make; and (v) to claim damages for any additional costs, losses or expenses incurred by RADCOM arising from the Seller’s failure to supply Deliverables in accordance with the Agreement and/or the applicable PO.
  1. RISK AND TITLE. Seller assumes all risk of loss and damage until acceptance by RADCOM as set herein. Title to the Deliverables shall pass to RADCOM upon their delivery at the designated destination specified in the PO, free from any lien and/or attachment and/or third party’s right. Notwithstanding the above regarding title, any software component shall be licensed to RADCOM, subject to the license terms agreed in writing and in advance, and no other license terms shall apply.
  2. LICENSE. Seller grants to RADCOM a perpetual, non- exclusive, transferable and royalty-free right to use the Deliverables’ software components and documentation, together with and as a part of the Deliverables, and to re-license and/or sublicense such usage in the software to its end users and/or resellers, distributors and other channel partners. Except as mentioned above, no other license terms shall apply, and the license granted above shall not be modified by any click- through or shrink-wrap or any other agreement (such as EULA), which may accompany the Deliverables.
  3. CONSIDERATION. As full consideration for the delivery or provision of Deliverables, RADCOM shall pay Seller the amount specified in the applicable PO within sixty (60) days after the close of the month during which RADCOM has confirmed the receipt of the Deliverables, unless a different term is set in the applicable PO. The price and consideration quoted on the PO is the sole and full consideration Seller is entitled to, is deemed to include packing, storage, transportation, shipping, lodgment and/or similar expenses, and unless otherwise authorized in writing by RADCOM, Seller shall not be entitled for any other payment of any sort. Seller shall provide Seller’s own supplies and equipment. RADCOM shall make payments for the invoices that have been duly authorized and confirmed, subject to its confirmation of receipt of a correct invoice. Payment shall be made after RADCOM has withheld any amounts which are subject to withholding tax under applicable law, unless Seller has provided RADCOM with an exemption from the relevant tax authority
  1. TAXES. All prices are inclusive of any present or future sales, revenue, withholding, value added taxes, import duty (including brokerage fees, handling and other charges) or other taxes applicable to the Seller or sale of any Deliverables. Seller shall be solely responsible for filing the appropriate federal, state and local tax forms, and paying all such taxes or fees due with respect to Seller’s receipt of payment under this Agreement.
  2. CONFLICT MINERALS. Seller expressly declares that the Deliverables do not contain “Conflict Minerals”, as defined in the Statement on Conflict Minerals (Section 1502 of the standard Dodd-Frank Wall Street Reform and Consumer Protection Act adopted by the Securities and Exchange Commission by Rule 34-67716) and any future amendments. In the event that the Deliverables contain the aforementioned “Conflict Minerals” Seller must report by affidavit signed by an attorney, certified notary public, expressly stating the country of origin of the “Conflict Minerals” in the first bid, and if the “Conflict Minerals” were contained in the Deliverables because of a change in the Specification of the agreement in force, will communicate with the same formality and immediately when they become aware of that fact and RADCOM can in its sole discretion, initiate an audit of information concerning those “Conflict Minerals” and meanwhile, the Seller will provide extensive collaboration in the context of that audit. It is expressly stated that in the event that the object offered by the Seller would contain “Conflict Minerals”, RADCOM may, in its sole discretion, decide to terminate the Agreement immediately, automatically and without rights to claims generated by the Seller for such termination.
  3. WARRANTIES AND REPRESENTATIONS. Seller represents and warrants that all Deliverables: (i) shall fully comply with the Specifications stated in the applicable PO, and any other documentation provided to and/or by RADCOM which contains such Specifications; (ii) shall be of new material and be manufactured, or in case of services delivered, in a professional manner; (iii) shall be free from all defects in material, design and workmanship; (iv) shall be merchantable, of the highest quality and fit for the purposes intended, all for a period of twelve months twelve (12) from the date of acceptance by RADCOM, or for the period provided in Seller’s standard warranty covering the Deliverables, whichever is longer; (v) be free of any liens or encumbrances; (vi) as supplied under this Agreement to RADCOM and from RADCOM to the end user, and their use by RADCOM and/or the end users, shall not infringe any Intellectual Property rights, commercial secret or any other third party’s rights; and (vii) do not contain any open source software code unless RADCOM has pre-approved in writing each use of open source software, nor any Trojan horses, “back doors”, worms, viruses, or similar deceptive or destructive or disabling code, timer, clock, counter or other limiting design or routine, which was intentionally designed or is likely to cause a product to be erased, inoperable or otherwise incapable of being used in the full manner for which it was designed and licensed pursuant to this Agreement. Seller further represents and warrants that: (i) It is an entity duly created, formed and organized, validly existing and in good standing under the laws of the jurisdiction of its creation, formation, or organization; (ii) The execution, delivery and performance by it of the Agreement does not, and will not (a) violate any applicable law, regulation or rule; (b) violate any charter document of it; (c) violate any agreement or order to which it is a party or by which it or its assets are bound; or (d) require any consent from any person or entity; and (iii) There are no actions, suits or proceedings, including with respect to Intellectual Property rights, or regulatory investigations pending before any court or administrative body or arbitration tribunal that might adversely affect the ability of Seller to meet and carry out its obligations under this Agreement; (iv) It has and shall maintain all necessary permits, consents, licenses and rights (including all Intellectual Property rights), required according to the law and/or contract from any third party, to enter into and to perform the Seller’s obligations under this Agreement; (v) It shall have the knowledge, experience and training necessary and desirable to supply the Deliverables in a competent and professional manner and in accordance with this Agreement; (vi) it shall reasonably assist RADCOM, with any documentation and/or information required to export the Deliverables to RADCOM’s end customers worldwide and/or required to return such Deliverables to Israel; and (vii) It shall fully comply with all applicable federal, state and local laws, including environmental and safety laws, hazardous materials regulations such as RoHS requirements and CE, provisions of the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act and other analogous anti-corruption legislation in other jurisdictions Seller operates in, as well as Seller’s country of operation, U.S., E.U. Israeli and/or any other relevant country trade and export control. In the event of breach of the foregoing warranties and/or representations, then without derogating from any remedy RADCOM is entitled to according to the Agreement and/or law, Seller shall promptly repair or replace the defected Deliverable, and provide advance replacement of Deliverable if so requested.
  4. INDEMNIFICATION. Seller shall indemnify, hold harmless and defend RADCOM, its officers, directors, customers, agents and employees and/or any party acting on its behalf, from and against all claims, liabilities, damages, losses and expenses, including attorney’s fees, arising out of or in connection with the Deliverables, including claims alleging that the Deliverables, or any other items, deliverables and/or processes provided under this Agreement, infringe any Intellectual Property right or any other proprietary right of any party. Seller shall not settle any such suits or claims without RADCOM’s prior and written consent. Seller agrees to pay and reimburse all costs that may be incurred by RADCOM in enforcing this indemnity, including attorney’s fees. Should RADCOM’s use or use by its sales channels, subcontractors or customers, of Deliverables purchased from Seller be enjoined, be threatened by injunction, or be the subject of any legal proceeding, Seller shall immediately, at its sole cost and expense, either (a) substitute fully equivalent non-infringing Deliverables; (b) modify the Deliverables so that they no longer infringe but remain fully equivalent in functionality; (c) obtain for RADCOM, its distributors, subcontractors or customers the right to continue using the Deliverables; or (d) if none of the forgoing is possible, refund all amounts paid for the infringing Deliverables.
  5. TERMINATION. RADCOM may terminate this Agreement upon written notice to Seller, if Seller fails to perform or otherwise breaches this Agreement and further fails to cure such fault within fifteen (15) days of being requested to do so, files a petition for bankruptcy, becomes insolvent, or dissolves. In addition, RADCOM may terminate this Agreement or any part thereof for any other reason, upon thirty (30) days written notice to Seller. Seller shall cease to provide Deliverables under this Agreement on the date of termination specified in such notice. In the event of such termination for breach and/or other reason, Seller shall be entitled for compensation due with respect to those Deliverables accepted by RADCOM, prior to the termination date.
  2. CONFIDENTIALITY. The Non-Disclosure Agreement signed by and between the parties, shall apply and govern the exchange of all information under or in connection with this Agreement, including but not limited to its existence.
  3. COMPLIANCE WITH INDUSTRY PRACTICES. All product/physical Deliverables and raw materials shall comply with international environmental regulations. RADCOM may require Seller to provide full material declaration, or other pertinent information regarding Deliverables for any reason. Seller shall provide supporting documentation (including certificates of compliance, test and analysis) upon delivery of the Deliverables.
  4. INDEPENDENT CONTRACTOR. Seller is an independent contractor for all purposes, without express or implied authority to bind RADCOM by contract or otherwise. Seller shall be solely and exclusively liable for any harm, loss, injury, disability, death or damage, caused to or suffered by any of its employees, equipment or anyone acting on its behalf. Seller shall hold harmless, defend and shall indemnify RADCOM and its directors, employees and officers, upon their first demand, from and against any and all such duties and liabilities incurred by any of them with respect to any claim and/or suit brought against any of them, claiming that employment relationship have been existing between any of them and any of the Seller’s personnel and/or anyone on the Seller’s behalf.
  5. ASSIGNMENT. Seller shall not assign any of its rights and obligations under this Agreement to any third party, without RADCOM’s prior and written consent.
  6. GOVERNING LAW. This Agreement shall be governed, construed and interpreted in accordance with the laws of the country in which the relevant RADCOM entity specified in the PO is located, without regard to its conflicts of laws The parties hereto consent to the sole and exclusive jurisdiction and venue in the courts of the city in which the of relevant RADCOM entity specified in the PO is located.
  7. ENTIRE AGREEMENT. This Agreement is the complete, final and exclusive statement of the terms of the agreement between the parties, and supersedes any and all other prior and contemporaneous negotiations and agreements, whether oral or written, between them relating to the subject matter hereof. This Agreement may not be varied, modified, altered, or amended except in writing.
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