PURCHASE ORDER TERMS AND CONDITIONS:
By accepting this purchase order (this “Order”), Seller expressly warrants and agrees with Buyer (each as defined below) as follows:
- “Buyer” shall mean Frontier Technology, LLC dba MicroAge. However, Buyer may purchase the goods or services described in this Order on behalf of or with the intent to transfer such goods or services to one or more of Buyer’s (a) affiliated or related companies or (b) customers, with the effect that such parties shall be deemed intended third-party beneficiaries under this Order and all rights of Buyer, and all obligations and warranties of Seller, referenced or contained in this Order shall inure to the benefit of such third parties. In such event, the third parties to which the goods or services are transferred shall be deemed to be a “Buyer” under this Order.
- “Seller” shall mean the person or entity providing the goods or services described in this Order to Buyer. Each of Buyer and Seller may be referred to herein as a “Party”, and collectively, the “Parties”.
- The terms and conditions of purchase contained herein (these “Terms”) apply to all quotations made and Orders made by Buyer that result in a sales order and related invoice and are the exclusive binding agreement between the Parties regarding the purchased products and services. Buyer may change, update or add or remove provisions of these Terms at any time by posting updated Terms on this website (the “Site”) and by sending an email to the address that Seller has provided in writing to Buyer notifying Seller of such changes. In the event of modifications by Buyer to these Terms, the Terms posted on the Site at the time Buyer places an Order or signs a Statement of Work (as defined below) will govern the Order or Statement of Work in question, unless otherwise agreed by the Parties in writing; provided, that THESE TERMS AND CONDITIONS DO NOT APPLY TO ORDERS PLACED PURSUANT TO A PREVIOUSLY EXECUTED WRITTEN AGREEMENT BETWEEN THE PARTIES.
- This Order may be accepted by Seller only on the express Terms set forth herein, any attachment hereto and any document or agreement incorporated by reference, all of which shall constitute the final, complete and exclusive statement of the Terms of the agreement between Seller and Buyer regarding the purchase and sale of products or services covered by this Order. Any additional or different terms and conditions contained in Seller’s invoice or other document shall be deemed material alterations within the meaning of the Uniform Commercial Code and shall not become part of any agreement between Seller and Buyer. In the event the terms of this Order conflict with the terms of any attachment hereto or any document or agreement incorporated by reference (including, without limitation, by imposing a greater obligation or liability upon Seller than imposed herein), the terms of such attachment, document or agreement shall control. If shipment is made of any part of any product hereof, or if services are provided by Seller hereunder, it is understood and agreed that the terms and conditions of this Order are satisfactory to and accepted by Seller in their entirety, without modification, notwithstanding the lack of Seller’s written approval hereof.
- From time to time, Buyer may request that Seller perform certain services by delivering a written request (a “Statement of Work”) describing the proposed services, applicable deliverables and deadlines, and setting forth the fees, costs and expenses payable by the Buyer to Seller in connection with the performance of such services. Seller, within five (5) days after receipt of the proposed Statement of Work, shall notify Buyer of its acceptance or rejection of such Statement of Work. Until the acceptance in writing of the proposed Statement of Work, Seller shall have no obligation to perform the proposed Services. Each Statement of Work, regardless of whether it relates to the same subject matter as any previously executed Statement(s) of Work, shall become effective upon execution by authorized representatives of both parties, and shall be incorporated into and form a part of these Terms. Buyer may, at any time, request a modification to the services to be performed pursuant to any particular Statement of Work by written request to Seller specifying the desired modifications. Seller shall, within a reasonable time following receipt of such request, submit an estimate of the cost for such modifications and a revised estimate of the time for performance of the Services pursuant to the Statement of Work. If accepted in writing by Buyer, such modifications in the Statement of Work shall be performed under the terms of these Terms. Modifications in any Statement of Work shall become effective only when a written change request is executed by authorized representatives of both Parties.
- Seller represents and warrants that the products and services, as applicable: (a) shall conform in all respects to their applicable samples, drawings, descriptions and/or specifications; (b) shall be of first-class quality and free from defects in design, materials and workmanship; (c) shall be performed by qualified and competent personnel in accordance with the highest generally accepted professional, technical, and industry standards, in a workmanlike, expeditious and efficient manner consistent with sound professional practices; (d) shall be fit for the purpose(s) intended; (e) shall be free from any security interest, lien and/or other encumbrance; (f) shall be rightfully conveyed by Seller with good and marketable title; (g) shall not infringe the rights (including intellectual property rights) of any third party; and (h) shall comply (and that the manufacture of products shall comply) with all applicable federal, state and local laws, codes, regulations and rules of the country of origin and the country of destination (provided that in the event of conflicting requirement, the more stringent requirements shall apply). Seller shall obtain and pay for all necessary federal, state and local licenses and permits necessary to enable it to perform this Order. Seller agrees to provide a certificate of compliance relative to the provisions of this paragraph with each shipment of goods or provision of services if Buyer so requests, and also agrees to permit Buyer, or its designees, upon reasonable notice, the right to inspect the testing records and procedures of the goods and services and to test goods for compliance with the provisions of this paragraph. Inclusion of express warranties and representations by Seller shall not be deemed a waiver of such other warranties as may be implied or expressly set forth in law or fact. Buyer shall have the ability to delay acceptance of any products or services ordered hereunder in its absolute discretion.
- Except as may otherwise be provided in this Order: (a) all prices specified herein shall be firm and, in the case where Buyer is either Frontier Technology, LLC dba MicroAge or an affiliated or related company of Buyer, Seller warrants that such prices are not less favorable than those charged to other customers of Seller for similar work or the same or like items in equal or similar quantities; (b) all costs of insurance, packaging, storage and all transportation or shipping shall be the sole responsibility of Seller and transportation costs resulting from deviation from shipping instructions and any other costs incurred by Buyer because of Seller’s non-compliance with the terms and conditions of this Order, including, without limitation, shipping deadlines, shall be paid by Seller or charged to Seller’s account; (c) all title and risk of loss or damage to any items or products of work shall be solely on Seller and shall pass to Buyer only upon acceptance (except in the case of Work Product (as defined in paragraph 9 below) title, but not risk of loss, shall pass immediately upon the creation of the Work Product); (d) regardless of Buyer’s acceptance of a product pursuant to this Order, Buyer has the right to return such product for any reason within ninety (90) days from the date of Buyer’s receipt thereof for a full refund and without liability for restocking or other fees or charges, provided that Buyer returns such product in the same condition as it was received; (e) Seller shall assume and pay all taxes (excluding federal, state and local sales, use and excise taxes, which Seller shall collect and pay where applicable), fees, assessments and other charges required by law due to the sale of items or performance of work, all of which shall be separately itemized, with all nontaxable items, such as labor charges and charges for maintenance or support services, separately itemized and identified as nontaxable charges; (f) the number assigned by Buyer to this Order (the “Order Number”) shall appear on all tags, invoices, containers, bills of lading, express receipts, packing lists, or other documents relating to this Order; (g) shipment shall be accompanied by a shipping notice or a packing slip describing the contents of each package or container showing weight, quantity and Order Number; (h) Seller shall show terms of payment on its invoice (any discount period offered by Seller shall begin from the date that invoice is received by Buyer); (i) Seller shall show federal excise, state and/or local taxes, if any, separately on its invoice; and (j) Seller’s invoices shall furnish such other detail and documentation as requested by Buyer, and payment of each invoice shall by subject to Buyer’s prior acceptance of the items/work and shall be due no earlier than 45 days following such acceptance or receipt of the invoice, whichever occurs later. If requested by Buyer, Seller shall execute a Form W-9 in the form specified by Buyer as a condition to be paid and acknowledges that payment hereunder by Buyer may be subject to tax withholding as required by applicable law. Before final settlement of Seller’s obligations and payment by Buyer, Seller shall reasonably satisfy Buyer of the payment and release of all debts, taxes, liens, claims, charges and obligations of Seller arising by operation of law, or otherwise, out of Seller’s performance of this Order. Buyer may withhold funds due Seller hereunder or otherwise, without interest, sufficient to assure itself of the discharge of all such obligations, or to satisfy any provisions of law relating to any claims it may have against Seller arising from this Order or its performance. Seller shall provide, upon Buyer’s request, a list of product components and/or drawings and specifications of products supplied to Buyer. Seller shall provide such assistance as Buyer may reasonably request with respect to obtaining all licenses, approvals, and clearances as may be necessary to export any products, items or work provided by Seller.
- Time for Seller’s performance is of the essence under this Order. Seller shall immediately notify Buyer if Seller will not be able to perform, deliver or complete all or any part of this Order by the specified delivery or completion date (and shall specify the earliest possible time for such performance, delivery or completion); whereupon Buyer shall have the option to cancel all or any part of this Order without obligation to Seller other than notice and without prejudice to any of Buyer’s other rights or remedies under this Order or at law. Buyer shall have the right to inspect all products or services and reject any and all products or services which are not delivered, performed or completed in the quantities ordered, or by the specified date(s), or do not comply with any warranty or other requirement of this Order; however, in the event of acceptance, such action shall not be construed as a waiver of Buyer’s right to recover damages for late delivery or completion, nor shall Buyer be obligated to accept further products or services under this Order. To the extent Seller is performing services under a Statement of Work, Buyer may terminate such Statement of Work or this Order at any time, without cause, upon 10 days’ written notice to Seller; in such event, Buyer’s sole obligation to Seller shall be to pay for services completed through the date of termination, provided Seller complies with any instructions from Buyer in its notice, but in no event shall Seller be entitled to recovery of any unabsorbed overhead, anticipatory profits or other damages for termination. Subject to its earlier termination pursuant to the foregoing sentence, each Statement of Work shall terminate upon the completion of all Services specified in the Statement of Work.
- Seller shall maintain in strict confidence, and not disclose to any other person or entity, without Buyer’s written permission, all nonpublic, confidential, proprietary and/or trade secret information acquired or learned from Buyer. For any item and/or work specially fabricated or produced, Buyer shall have exclusive right, title and interest in and to all customized artwork, inventions, works of authorship, methods, processes, designs, molds, tooling and other properties made or acquired by Seller under this Order (collectively, “Work Product”) immediately upon the creation of such Work Product; and Seller hereby grants and assigns to Buyer all such right, title and interest (including, without limitation, reproduction, manufacturing and moral rights throughout the universe in perpetuity and in all languages and in any and all media whether now or hereafter known) with respect to such Work Product and agrees to execute (and cause its employees and independent contractors to execute) any applications, registrations, assignments or other documents that Buyer deems necessary or appropriate to obtain all such right, title and interest. To the fullest extent permitted by law, Seller acknowledges that the work to which this Order pertains, if it constitutes copyrightable subject matter, is work(s) made for hire for Buyer the copyright(s) for which are owned by Buyer or its designee and that to the extent that such work does not qualify as work(s) for hire, Seller hereby assigns to Buyer all right, title and interest Seller may have in the work. To the extent that Seller creates any Work Product which is legally incapable of being assigned to Buyer, or its designee, Seller shall take all steps necessary to grant Buyer, or its designee, an irrevocable, non-exclusive, royalty free, worldwide right and license to use the same for any and all purposes, including, without limitation, the right to modify, enhance, maintain, create derivative works of, adapt, copy, distribute and use such Work Product, and to grant sub-licenses (through multiple tiers) to any third party to do the same. If any item or Work Product contains a trademark, character, design, name, symbol and/or other proprietary material owned, copyrighted or licensed by Buyer, its patent or any of its subsidiary or affiliated companies (“Licensed Material”), Seller shall, upon request by Buyer and without delay, execute a license agreement for the use of such intellectual property in the forms provided by Buyer. THE MANUFACTURE OF MERCHANDISE CONTAINING LICENSED MATERIAL OR THE PERFORMANCE OF SERVICES INCORPORATING LICENSED MATERIAL WITHOUT AN EFFECTIVE LICENSE IS A VIOLATION OF U.S. AND INTERNATIONAL LAW. Under this Order, Seller shall acquire no right to use, and shall not use, the name “Frontier Technology, LLC”, “MicroAge” or any of its subsidiary or affiliated companies: (a) in any of its advertising, publicity or promotions; (b) to express or imply any endorsement by Buyer of Seller’s products or services, or (c) for any other purpose or in any other manner, except only as necessary for Seller to properly perform pursuant to this Order.
- Where Work Product arising from work undertaken by Seller, or any products or services provided by Seller makes use of any intellectual property rights existing prior to the effective date of the Order or belonging to any third party (the “Background”), Seller hereby grants to Buyer a perpetual, non-exclusive, irrevocable, royalty free, worldwide right and licence under such Background, which license shall be fully sublicenseable through multiple tiers, to use, enhance, modify, maintain, distribute, copy, and create derivative works of such Background.
- While this Order remains in effect and for three years thereafter, Seller shall maintain Product Liability and Commercial General Liability Insurance to include contractual and products/completed operations, with minimum limits of $1,000,000 on an occurrence form basis, and Automobile Liability coverage with minimum combined single limits of $1,000,000 protecting it and Buyer from claims for personal injury (including bodily injury and death) and property damage which may arise from or in connection with Seller’s performance hereunder or from or out of any negligent act or omission of Seller, its officers, directors, employees, agents or subcontractors. To the extent this Order includes Seller’s performance of services on property owned, leased or designated by Buyer, Seller shall also maintain Workers Compensation Insurance as required by applicable law and Employers Liability Insurance with minimum limits of $1,000,000 per occurrence. Additionally, if Seller is providing services, Seller shall maintain Professional Liability Errors and Omissions insurance in an amount not less than $1,000,000 for each claim and annual aggregate, with a maximum deductible of $20,000, including punitive damage coverage, and contractual liability coverage to the extent assumed under this agreement, and without limitations. The policy shall have a retroactive date that precedes the start of such services. All such insurance shall be with companies and on forms acceptable to Buyer and shall provide that coverage may not be reduced or canceled unless 30 days prior written notice is furnished to Buyer. All insurance shall be primary and not contributory with regard to any other insurance available to Buyer. All insurance shall be written by companies with a BEST Guide rating of B+VII or better, and such policies shall contain a waiver of subrogation and, except for Workers Compensation and Employers Liability, shall include Buyer, its parent and all subsidiary and affiliated companies as additional insureds. Before providing any goods or services hereunder, Seller will provide Buyer a certificate evidencing such coverage and indicating Buyer will receive written notice of any non-renewal, cancellation or material change in coverage at least 30 days before the effective date thereof. Failure of Seller to provide such certificate shall constitute a material breach of this Order.
- Seller shall defend (if required by Buyer and with counsel selected by Buyer), indemnify and hold harmless Buyer, its parent, subsidiary and affiliated companies, and the officers, directors, employees and agents of each, from all third-party claims, demands, liabilities, actions, judgments, damages, losses, settlements, costs and expenses (including without limitation penalties, interest and attorneys’ fees) arising directly or indirectly from or out of any actual or alleged: (a) defect in design, material or workmanship of the goods or services ordered hereunder; (b) infringement of a patent, trademark, copyright or other intellectual property right of a third party, or misappropriation of trade secrets or other confidential information of a third party, regarding any product or service; (c) price discrimination or price fixing regarding any of the prices specified herein; (d) negligent or willful act, error or omission of Seller, its officers, directors, employees, agents, invitees or subcontractors; (e) failure by Seller to perform any of its obligations hereunder, in accordance with the terms herein; (f) breach of the warranties (express, implied and by statute) and representations made by Seller herein; and (g) any occupational injury or illness sustained by an employee or agent of Seller in furtherance of this Order. Seller expressly and unconditionally waives its rights to raise as a defense to its obligations under this paragraph any intervening, contributing or comparative negligence (whether active or passive) by Buyer. The foregoing indemnity shall not be limited by the insurance requirements of paragraph 11. If Buyer brings an action against the Seller to enforce any provision of this Order and prevails therein, Buyer may recover its reasonable attorneys’ fees in addition to any other remedy it may have at law or in equity.
- Seller shall ensure that it maintains: (a) competent personnel capable of delivering maintenance and support for the products or services delivered; (b) adequate spare parts or the ability to procure equipment meeting the specifications provided under this Order with respect to the products delivered; and (c) the ability to manufacture the products delivered pursuant to this Order.
- Seller has and will maintain throughout the term of this Order, security procedures consistent with the guidelines, rules and regulations promulgated by the U.S Customs and Border Protection, Department of Homeland Security, as the same may be amended from time to time, including without limitation the guidelines, rules and regulations in connection with the Customs-Trade Partnership Against Terrorism (C-TPAT). Buyer reserves the right to place on hold and/or cancel any Order if Seller does not maintain adequate security procedures.
- This Order shall be governed by the laws of the State of Arizona, without regard to principles of conflicts of laws. Any dispute between the Parties arising out of or relating to this Order that cannot be resolved by good faith negotiations shall be submitted for trial, without a jury, to a court in the State of Arizona. The Parties hereby consent to the exclusive jurisdiction of such court and agree to accept service of process outside the State of Arizona and also expressly waive all rights to a trial by jury. Seller is an independent contractor and nothing herein shall be construed to create a partnership, employment, agency or joint venture relationship between Seller and Buyer. This Order, and any rights, and obligations hereunder, may not be subcontracted or assigned by Seller, nor shall it be assignable by operation of law, without Buyers prior written permission, which may be withheld in the absolute discretion of Buyer. No waiver of any breach, right or remedy shall constitute a continuing waiver, nor shall it be construed as a waiver of any other breach, right or remedy. This Order may be supplemented or modeled only by a written agreement between Seller and Buyer. This Order shall be interpreted in accordance with its fair meaning and not against either of the Parties.
- All notices given hereunder shall, unless otherwise specifically provided, be given in writing, by personal delivery, mail, electronic mail, or facsimile transmission at the respective addresses of Seller and Buyer set forth in this Order, unless either Party at any time or times designates another address for itself by notifying the other Party thereof by certified mail, in which case all notices to such Party shall thereafter be given at its most recently so designated address. Notice given by mail shall be deemed given on the date of mailing thereof with postage prepaid. Notice given by electronic mail or facsimile transmission shall be deemed given upon receipt thereof by the recipient.
- Seller agrees to comply with applicable federal and state provisions regarding non-discrimination and equal employment opportunities, including but not limited to, the U.S. Civil Rights Act, the Americans with Disabilities Act, Section 504 of the U.S. Rehabilitation Act and the U.S. Department of Labor regulations (41 C.F.R. Chapter 60). Seller agrees to incorporate this clause into all of its subcontracts under this Order.
- If Seller, as a result of providing goods of services under this Order either: (a) receives customer credit card information; (b) processes credit card information for Buyer; (c) provides software, equipment or systems that Buyer will use to process credit card information; or (d) stores credit card information electronically or otherwise for Buyer, then Seller represents, warrants and covenants that Seller is in compliance, and will remain in compliance, with the current Payment Card Industry (“PCI”) Data Security Standard as specified at: https://www.pcisecuritystandards.org/. In addition, if Seller is required to obtain a PCI audit as part of required PCI compliance, upon Buyer’s request, Seller shall provide to Buyer a copy of its most current PCI audit.
- Special Terms Applicable to Software.
- To the extent items, work or products of work constituting software and related documentation that Seller provides to Buyer pursuant to this Order (collectively referred to as “Software”) does not constitute Work Product, then with respect to all such Software, Seller hereby grants to Buyer, and Buyer accepts, a perpetual, irrevocable, nonexclusive, royalty-free, worldwide right and license to use, adapt, develop, reconstruct, enhance, maintain, execute, display, copy and perform the Software. The employees, agents and contractors of Buyer and its affiliates may use the Software in accordance with the terms of this Order. The Software may be copied in any machine readable or printed form in support only in support of the licensed use of the Software and for backup and archival purposes. Seller expressly agrees that the Software and the foregoing license may be transferred by Buyer to any third party.
- Seller represents and warrants that: (a) the Software shall conform to and will operate in accordance with all documentation thereof supplied by Seller to Buyer; (b) there are no defects or any limitations in the Software which would render it unsuitable for use; (c) the media on which the Software is contained shall contain no computer instructions whose purpose is to disrupt, damage or interfere with Buyer’s use at any of its data programs or computer or telecommunications facilities for their commercial purposes; (d) unless expressly authorized in writing by Buyer, the Software shall not contain (i) any mechanism which electronically notifies Seller of any fact or event, nor (ii) any key, node lock, time-out, logic bomb or other function, implemented by any means, which may restrict Buyer’s use of or access to any programs, data or equipment; and (e) Seller will promptly correct or replace the Software if the Software does not conform to the requirements of clauses (a), (b), (c) or (d) above. If Seller fails to correct or replace any Software that does not meet the foregoing warranties within a reasonable period of time, Buyer shall have the option of returning the Software to Seller and receiving a refund of the amounts paid therefore by Buyer.
- Seller shall comply with all U.S. Customs laws and regulations (e.g., 19 C.F.R.) and all other applicable U.S. Government regulations pertaining to importations of Products and materials into the U.S. for domestic Orders (Orders issued to entities addressed in the U.S.): Seller shall assume all U.S. import responsibilities, to include designation as U.S. Importer of Record, U.S. Customs clearance, and payment of duty, taxes, and fees for Products entering into the U.S. Unless otherwise agreed in writing, Buyer will not assume any import liabilities for Products procured through a domestic Order.
- Seller is prohibited from engaging in activities that support or promote trafficking in persons, including, but not limited to, any of the following:
- Trafficking in persons, including, but not limited to the following: i. sex trafficking; or ii. the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, debt bondage, or slavery;
- The use of forced labor in the performance of company business;
- The use of misleading or fraudulent recruitment activities;
- Failing to pay for the return transportation at the end of employment for an employee who is not a national of the country in which the work is taking place and who was brought into that country for the purpose of working; or
- Providing or arranging housing that fails to meet the host country housing and safety standards.
Seller represents and warrants that it shall abide by and comply with the requirements of this clause. Further, Seller shall require its employees, agents, contract laborers and subcontractors to abide by and comply with the requirements of this clause. Seller agrees to insert the substance of this clause, including this sentence, in any lower–tier subcontract.
- Seller shall not furnish suspect counterfeit or counterfeit parts to Buyer under this Order. All material delivered under this Order shall be authentic and traceable to the original manufacturer. Seller shall provide authenticity and traceability records to Buyer upon request. Seller shall immediately notify Buyer if Seller cannot provide electronic parts, components, and/or assemblies traceable to the original component manufacturer or the original equipment manufacturer. Upon receipt of such notification, Buyer reserves the right to terminate this Order at no cost to Buyer or require specific material validation test and inspection protocol requirements to Seller.
If suspect counterfeit or counterfeit parts are furnished under this Order and are found in any of the Products delivered hereunder, such items will be impounded by Buyer. Seller shall promptly replace such suspect/counterfeit parts with parts acceptable to the Buyer. Seller shall be liable for all costs relating to the removal and replacement of said parts, including without limitation Buyer’s external and internal costs of removing such suspect/counterfeit parts, of reinserting replacement parts and of any testing or validation necessitated by the reinstallation of Seller’s Products after suspect/counterfeit parts have been exchanged.
Seller agrees to insert the substance of this clause, including this sentence, in any lower tier subcontract.
- Seller shall use commercially reasonable efforts to:
- identify whether such Products contain tin, tantalum, gold or tungsten;
- determine whether any such minerals originated in covered countries, as defined in Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Act”); and
- perform appropriate due diligence on its supply chain in support of Buyer’s obligations under the Act.
- Upon any termination or expiration of these Terms, each Party shall immediately (a) discontinue all use of the other Party’s Confidential Information; (b) delete the other Party’s Confidential Information from its computer storage or any other media, including, but not limited to, online and off-line libraries; and (c) return to the other Party or, at the other Party’s option, destroy, all copies of such other Party’s Confidential Information then in its possession.
- The provisions of paragraphs 1 through 4, 6, and 8 through 25 of these Terms shall survive the expiration or earlier termination of this Order.