Sales Order Terms and Conditions:
The terms and conditions of sale contained herein (these “Terms”) apply to all quotations made and purchase orders (“Purchase Orders”) received by Frontier Technology, LLC dba MicroAge (“Seller”) from you (“Buyer”) that result in a sales order and related invoice and are the exclusive binding agreement between the parties regarding the purchased products (“Products”) and services (the “Services”). THE ACCEPTANCE OF ANY OR ALL OF THE BUYER’S PURCHASE ORDERS IS CONDITIONAL UPON BUYER’S ASSENT TO THE TERMS AND CONDITIONS, IN LIEU OF ANY TERMS CONTAINED IN BUYER’S PURCHASE ORDER. Seller hereby rejects all provisions contained in communications from Buyer that conflict with or are inconsistent with the terms contained herein. Seller’s failure to object to any of the provisions contained in Buyer’s documentation shall not be deemed a waiver of these provisions.
By submitting a Purchase Order, Buyer agrees to be bound by and accept such Terms. Seller 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 Buyer has provided in writing to Seller notifying Buyer of such changes. In the event of modifications by Seller to these Terms, the Terms posted on the Site at the time Buyer places a Purchase Order or signs a Statement of Work (as defined below) will govern the Purchase Order or Statement of Work in question, unless otherwise agreed by the parties in writing.
Buyer agrees to provide accurate, current and complete information as necessary for Seller to communicate with Buyer from time to time regarding these Terms, the Products and Services, issue invoices or accept payment, or contact Buyer for other account-related purposes. Buyer agrees to keep any account information current and inform Seller of any changes in Buyer’s legal business name, address, email address and phone number. Buyer consents to receiving electronic records and notices, and agrees to accept emails from Seller at the e-mail addresses specified by Buyer in Buyer’s account information.
1. Prices/Taxes. All Purchase Orders are subject to acceptance by Seller. Buyer will be billed at the prices stated at the time of Purchase Order or Statement of Work (as defined below) acceptance by Seller. Unless otherwise specified or required by law, all prices will be quoted and billed exclusive of customs, duties or taxes, and Buyer shall be responsible for all such applicable duties and taxes (exclusive of taxes on Seller’s income).
2. Terms of Payment. Payment is due as stated on Seller’s invoice without offset or deduction for withholding taxes or otherwise. Any late payments are subject to a finance charge of the lesser of 1.5% per month or the maximum amount allowed by law. Buyer agrees to accept partial shipments in satisfaction of a single Purchase Order; when partial shipments are made, pro-rata payments shall become due in accordance with the designated terms for each shipment. If Seller accepts partial payment in an amount less than the full amount of any invoice, such acceptance shall neither constitute a waiver of Seller’s right to collect the balance nor an accord and satisfaction, notwithstanding Seller’s endorsement of a check or other instrument. In the event of Buyer’s bankruptcy or insolvency, Seller shall be entitled to cancel any order then outstanding without waiving any claims in law or equity. If Buyer fails to comply with these payment terms, Seller reserves the right to withdraw credit, suspend or cancel performance under any or all Purchase Orders, Statements of Work, or other agreements and all Buyer’s obligations to Seller shall become immediately due and payable.
3. Title and Delivery of Products. Shipment shall be F.O.B. shipping point and the manner of shipment shall be at Seller’s option. Buyer shall be responsible for all shipping charges unless otherwise agreed upon. All claims for loss or damage during shipment must be filed by Buyer with the carrier. Claims against Seller for shortages occurring before delivery to carrier are subject to Buyer’s compliance with Seller’s RMA policy, incorporated by reference herein. The sale of any of Seller’s products to Buyer in no way conveys to Buyer, either expressly or by implication, any intellectual property license whatsoever, except as may be granted by the Seller in the materials which accompany the Products upon delivery. Seller expressly reserves its rights under any such claim, and asserts that additional restrictions may apply to the use of the Products, as set forth in the materials which accompany the Products. It is the responsibility of Buyer to arrange for and obtain insurance coverage for the Products, if so desired.
4. Services. From time to time, Buyer may request that Seller perform certain services, including but not limited to professional services, cloud services, or managed IT related services. Subject to the terms and conditions set forth in these Terms, Provider shall use commercially reasonable efforts to perform such services as may be set forth in Statement of Works separately executed by the parties (the “Services”). Seller may provide such Services to Buyer by performing such Services directly, by reselling such Services from third parties or subcontracting with third parties to provide such Services. In addition to the terms and conditions set forth in the applicable Statement of Work, if applicable, such Services may also be subject to separate terms and conditions as specified by the service provider, which terms (i) will be provided or made available to Buyer, and (ii) shall be incorporated into and made a part of the applicable Statement of Work.
4.1 Issuance of Statements of Work. Buyer may request that Seller perform services by delivering a written request describing the proposed Services. Seller shall provide to Buyer a statement of work (each, a “Statement of Work”) setting forth the fees, costs and expenses payable by the Buyer to Seller in connection with the performance of such Services. The Buyer, within a reasonable amount of time after receipt of the proposed Statement of Work, shall notify Seller 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, provided that these Terms shall remain in full force and effect in accordance with Section 15 (Term; Termination). The parties may from time to time enter into additional Statements of Work. 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.
4.2 Modifications. 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.
4.3 Buyer Responsibilities. Buyer shall make available in a timely manner at no charge to Seller all technical data, computer facilities, programs, files, documentation, test data, sample output, or other information and resources of Buyer required by Seller for the performance of the Services as specified in the applicable Statement of Work. Buyer shall be responsible for, and assumes the risk of, any problems resulting from, the content, accuracy, completeness and consistency of all such data, materials and information supplied by Buyer. Buyer shall provide, at no charge to Seller, office space, services and equipment (such as copiers, fax machines and modems) as Seller reasonably requires to perform the Services.
4.4 Subcontracting. Seller reserves the right to employ agents and subcontractors to assist Seller when providing any part or all of the Services. Any reference to Seller’s personnel in this Agreement includes agents and subcontractor staff. Seller will remain liable to Buyer with respect to any Services provided, subject to the other provisions of this Agreement. Where Buyer requires Seller to contract the services of a subcontractor specified by Buyer, Buyer will be responsible for the work to be performed by such subcontractor. Sellers’ agreement to integrate the work to be performed by such subcontractor for the purposes of this Agreement is on the basis that Seller will not be responsible for, or liable to Buyer or to any other third party for the work performed by, or any acts, omissions, or defaults of, such subcontractor(s), or Sellers’ reliance thereon. In such circumstances, Buyer will be responsible and liable for, and will indemnify and hold harmless Seller against and from, all claims, demands, proceedings, damages, losses, costs and expenses (including reasonable attorneys’ fees and costs), made against, suffered or incurred by Seller, directly or indirectly as a result of or in connection with the work performed by any such subcontractor.
4.5 Nonsolicitation. Buyer acknowledges and agrees that the employees and consultants of Seller who perform the Services are a valuable asset to Seller and are difficult to replace. Accordingly, Buyer agrees that, during the performance of a Statement of Work or for a period of one (1) year after the termination or expiration of a Statement of Work, it shall not offer employment or engagement (whether as an employee, independent contractor or consultant) to any Seller employee or consultant who performs any of the Services set forth in the applicable Statement of Work without Seller’s prior written approval. If Buyer hires any Seller personnel during the aforementioned period, and prior written authorization has not been obtained, Buyer shall owe and pay a conversion fee equal to the then current annual salary of each of such Seller personnel hired in contradiction of this Section.
5.1 Ownership of Confidential Information. The parties acknowledge that during the performance of these Terms, each party will have access to certain of the other party’s Confidential Information or Confidential Information of third parties that the disclosing party is required to maintain as confidential. For purposes of these Terms “Confidential Information” means any material or information relating to a party’s research, development, products, product plans, services, customers, customer lists, markets, software, developments, inventions, processes, formulas, technologies, designs, drawings, marketing, finances, or other business information or trade secrets that such disclosing party treats as proprietary or confidential. Without limiting the foregoing, the software and any databases (including any data models, structures, non-Buyer specific data and aggregated statistical data contained therein) of Seller shall constitute Confidential Information of Seller. Both parties agree that all items of Confidential Information are proprietary to the disclosing party or such third party, as applicable, and shall remain the sole property of the disclosing party or such third party.
5.2 Mutual Confidentiality Obligations. Each party agrees as follows: (i) to use the Confidential Information only for the purposes described herein; (ii) that such party will not reproduce the Confidential Information and will hold in confidence and protect the Confidential Information from dissemination to, and use by, any third party; (iii) that neither party will create any derivative work from Confidential Information disclosed to such party by the other party; (iv) to restrict access to the Confidential Information to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of these Terms; and (v) to return or destroy all Confidential Information of the other party in its possession upon termination or expiration of these Terms.
5.3 Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Sections 5.1 and 5.2 shall not apply to Confidential Information that (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient; or (vi) is approved for release or disclosure by the disclosing party without restriction. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (y) to establish a party’s rights under these Terms, including to make such court filings as it may be required to do.
6. Proprietary Rights. Buyer shall own any deliverable that embodies its Confidential Information to the extent that it embodies Buyer’s Confidential Information. Unless otherwise expressly agreed in any particular Statement of Work, except to the extent that the same constitutes or embodies Buyer’s Confidential Information, ownership of all work product, developments, inventions, technology or materials provided under these Terms shall be solely owned by Buyer, subject to the usage rights granted to Buyer under the relevant Statement of Work.
7.1 Services. Seller represents and warrants that all Services shall be provided in a professional and workmanlike manner, in accordance with industry standards.
7.2 Products. Buyer acknowledges that Seller is not the manufacturer of the Products. To the extent legally and contractually permitted, Seller shall pass through to Buyer any transferable Product warranties, indemnities, and remedies provided to Seller by the manufacturer, including those for intellectual property infringement. If required by law, Seller warrants that at the time of delivery, Products will conform to the specifications stated by the manufacturer in its published data sheet for the Products.
7.3 Disclaimer. EXCEPT AS PROVIDED FOR IN THESE TERMS, SELLER EXPRESSLY DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING ALL WARRANTIES WHICH, BUT FOR THIS PROVISION, MIGHT ARISE FROM COURSE OF DEALING, CUSTOM OR TRADE AND INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS WITH RESPECT TO THE PRODUCTS AND SERVICES FURNISHED BY SELLER HEREUNDER. SELLER DOES NOT WARRANT THAT THE SERVICES OR ANY OTHER INFORMATION, MATERIALS, OR TECHNOLOGY PROVIDED UNDER THESE TERMS WILL MEET BUYER’S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. For the sake of clarity, unless it is otherwise specifically stated in the Software’s applicable license agreement, SOFTWARE IS PROVIDED “AS IS” WITH NO ADDITIONAL WARRANTY.
8. Limitation of Liability. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL OR OTHER DAMAGES WHATSOEVER RESULTING FROM SELLER’S PERFORMANCE OR FAILURE TO PERFORM UNDER THESE TERMS OR ANY STATEMENT OF WORK OR THE FURNISHING, PERFORMANCE OR USE OF ANY GOODS OR SERVICES SOLD OR DELIVERED PURSUANT HERETO, WHETHER DUE TO BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, PRODUCT LIABILITY, THE NEGLIGENCE OF SELLER OR OTHERWISE. IN NO EVENT SHALL SELLER’S LIABILITY EXCEED THE U.S. DOLLAR AMOUNT EQUAL TO THE AMOUNT PAID BY BUYER FOR THE COST OF THE PRODUCTS OR THE SERVICES PAID BY BUYER UNDER THE APPLICABLE INVOICE. THE DAMAGE LIMITATIONS PROVIDED IN THIS AGREEMENT AND THE REMEDIES STATED HEREIN SHALL BE EXCLUSIVE AND SHALL BE BUYER’S SOLE REMEDY. The disclaimers, exclusions and limitations of liability set forth in these Terms form an essential basis of the bargain between the parties, and, absent any of such disclaimers, exclusions or limitations of liability, the provisions of these Terms, including, without limitation, the economic terms, would be substantially different.
9. Software. Software is the machine readable (object code) version of computer programs (“Software”). Buyer’s use of Software and any related documentation shall be governed by the Software’s applicable license agreements. Software embedded in or bundled with hardware must be used solely with the device for which it was intended and may not be transferred separately.
10. Use of Products. Buyer shall comply with the manufacturer’s Product specifications. If Buyer fails to comply with the manufacturer’s Product specifications, Buyer acknowledges that such use, sale, or non-compliance is at Buyer’s sole risk. Buyer shall indemnify, defend and hold Seller harmless from any claims based on a breach of this Section 7.
11. Returns. Buyer may return Products to Seller only with a return material authorization (“RMA“) number issued by Seller. Buyer may only return Products to Seller in accordance with the return policies and specifications provided by the applicable manufacturer. Seller will only issue an RMA if the defect is created solely by Seller or the original manufacturer, and only if Buyer meets the requirements of the original manufacturer. Seller will not grant RMAs for damage, shortage, or other discrepancy created by Buyer, the carrier or freight provider, or any other third party. Upon receiving the RMA, Buyer must return the Products to Seller in compliance with Seller’s instructions in the RMA. Seller or the original manufacturer may assess all Products returned by Buyer via RMA. If Seller or the original manufacturer determines such Products are not eligible for return, Seller will send such Products back to Buyer on freight collect basis, or hold such Products for Buyer’s collection and on account at Buyer’s expense. An unresolved RMA does not relieve the Buyer from his obligation to pay his invoices timely.
12. Product Information. Unless otherwise expressly provided, Seller shall retain title to and possession of any statements or advice (technical or otherwise), advertisement content, and information related to a Product’s specifications, features, related to the Products hereunder (“Product Information”). Product Information is provided by Seller on an “AS IS” basis and does not form a part of the properties of the Product. Seller makes no representation as to the accuracy or completeness of the Product information, and DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND LIABILITIES UNDER ANY THEORY WITH RESPECT TO THE PRODUCT INFORMATION. Seller recommends that Buyer validates any Product Information before using or acting on such information. All Product information is subject to change without notice.
13. Indemnification. In the event of a claim by a third party of infringement of proprietary rights, trademarks, or patents, resulting from compliance with Buyer’s designs, specifications, or instructions, Buyer will defend, indemnify and hold Seller harmless against any expense or loss ensuing from such a claim.
14. Security Agreement. Buyer hereby grants to Seller, its successors and assigns, a security interest in the Products to secure payment of the purchase price of the Products. Default in payment of such price or any part of the price when due shall permit Seller, in its sole discretion, to declare all obligations of Buyer immediately due and payable, and in such event, Seller shall have all the rights and remedies of a secured party under applicable law. In connection with the security interest granted herein, Seller is expressly authorized, at its discretion, to file one or more financing statements or other notices under applicable law naming Buyer as debtor and Seller as secured party. Buyer agrees to execute such documents requested by Seller to record and otherwise perfect this security interest.
15. Term; Termination.
15.1 Term. These Terms shall commence on the Effective Date, which shall be the date of acceptance of the first Purchase Order or Statement of Work under these Terms, and shall remain in effect until termination in accordance with Section 15.2 (the “Term”). Notwithstanding the foregoing, the Term shall run for a period of not less than one (1) year from the Effective Date unless earlier terminated in accordance with Section 15.2. Unless otherwise stated in the applicable Statement of Work, the term of each Statement of Work shall last until performance thereunder is completed.
15.2 Termination for Breach. Either party may, at its option, terminate these Terms in the event of a material breach by the other party. Such termination may be effected only through a written notice to the breaching party, specifically identifying the breach or breaches on which such notice of termination is based. The breaching party will have a right to cure such breach or breaches within thirty (30) days of receipt of such notice, and these Terms shall terminate in the event that such cure is not made within such thirty (30)-day period. Without limiting the foregoing, Seller may immediately terminate these Terms upon written notice in the event that Buyer becomes insolvent or enters bankruptcy during the Term.
15.3 Termination of Individual Statements of Work. Each Statement of Work shall terminate upon the earliest to occur of the following: (i) the completion of all Services specified in the Statement of Work; (ii) the date upon which any stated limitation on the scope or duration of Service(s) has been reached, whether expressed in labor-hours, scope of project, or otherwise; (iii) the date of expiration, if any, set forth in the Statement of Work; or (iv) the termination of these Terms. Except as otherwise provided in these Terms, neither party shall have any further rights or duties under any Statement of Work upon its expiration or termination.
15.4 Termination for Convenience. Seller shall have the right to terminate any Statement of Work for convenience on at least thirty (30) days prior written notice to Buyer. If Seller exercises such termination right, Seller shall refund to Buyer the amount of any pre-paid amounts for the terminated Statement of Work.
15.5 Effect of Termination. Upon any termination of these Terms or a Statement of Work, each Party shall (i) immediately discontinue all use of the other party’s Confidential Information; (ii) 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; (iii) shall 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; and (iv) shall promptly pay all amounts due and remaining payable hereunder.
15.6 Survival. The provisions of this Section and Sections 5 (Confidentiality), 7 (Warranty/Disclaimers), 13 (Indemnification), 16 (Force Majeure) and 17 (General) will survive the termination of this Agreement.
16. Force Majeure. Seller shall not be liable for any loss, delay or failure to perform resulting from any force majeure event, including but not limited to Acts of God, fire, natural disaster, labor stoppage, government intervention, war or military hostilities, inability of carriers to make scheduled deliveries, or any act beyond the reasonable control of the Seller. Any delivery date may be extended, at Seller’s option, to the extent of any delay resulting from any force majeure event.
17. General. Buyer shall not assign these Terms, or any interest or any rights herein, or delegate its obligations under these Terms without the prior written consent of the other party. Any notice or report required or permitted by these terms and conditions shall be in writing and shall be deemed given (i) on the next business day after being sent by confirmed email or facsimile; or (ii) if delivered personally or if sent by either party to the other by confirmed overnight delivery or by certified or registered mail, return receipt requested, postage prepaid, addressed to the other party to its address as set forth on the Purchase Order or Statement of Work, or at such other address as such party shall designate by notice hereunder. Where Buyer is giving notice to Seller, all notices shall be sent to the attention of Seller’s account representative or representative corporate officer. The terms and conditions of sale stated herein shall be governed by and construed according to the laws of the State of Arizona without regard to conflict of laws provisions. Each party consents to jurisdiction in the courts located in the state of Arizona. No modifications to these terms and conditions herein shall be enforceable except when in writing and signed by both parties, unless otherwise expressly stated herein. Any provision hereof which is prohibited or unenforceable shall, as to such jurisdictions, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity of such provision in any other jurisdiction. No waiver of any breach of any provision of these terms and conditions shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. The terms and conditions contained herein constitute the entire agreement between Buyer and Seller with respect to the Products purchased and the Services, and supersede all prior or contemporaneous negotiations, understandings and agreements. Buyer and Seller acknowledge and agree that the relationship arising from these Terms or any Statement of Work does not constitute or create any joint venture, partnership, employment relationship or franchise between them, and the parties are acting as independent contractors in making and performing these Terms or any Statement of Work. In the event that a conflict is deemed to arise between the provisions of these Terms and the provisions of any Statement of Work, the provisions of these Terms shall govern.