LEGAL TERMS AND CONDITIONS

These Terms and Conditions (“T&Cs”) apply to the purchase of professional services (“Services”) for the delivery of consulting, installation, education, and training and purchased products (“Products”) by Frontier Technology, LLC, an Arizona limited liability company doing business as MicroAge, and its respective affiliates, parents, subsidiaries, and subcontractors ( “MicroAge”) to the buyer (“Client”) (individually “Party” or collectively the “Parties”).  The Services and/or Products shall be described in a mutually agreed upon statement of work, scope of work, scope of services, services brief, or work order (“SOW”) and signed by both the buyer and MicroAge prior to or upon receipt of a Purchase Order procuring Services and/or Products.  By ordering or otherwise proceeding with any transaction with MicroAge, Client agrees to these T&Cs.  The T&Cs and the SOW together constitute the entire agreement between Client and MicroAge (the “Agreement”).  Each SOW may also specify, among other things, (i) the time for performance of the Services, (ii) Products, (iii) the applicable fees and expenses to be paid to MicroAge for the Products and performance of the Services (the “Fees and Expenses”), and (iv) any non-standard or exception to MicroAge’s payment terms.  In the event of any conflicts between the terms of a SOW and these T&Cs, the provisions of such SOW shall govern.  If the Parties enter into a separate written agreement for the Products and/or Services, then the terms of that separate written agreement, including Schedules, shall apply.

1. Scope of Services.

• Services provided under these T&Cs will be limited to Services specifically described in the SOW.
• MicroAge will provide personnel with the requisite qualifications, expertise, and knowledge to perform the Services in a professional and timely manner.
• MicroAge shall have sole discretion over the identity of the personnel delivering the Services and is entitled to replace personnel with equivalently qualified personnel as needed.
• MicroAge reserves the right to change amend and alter the Services with equivalent or otherwise equal services without prior notice to Client.
• MicroAge may provide such Services to Client by performing such Services directly, by reselling such Services from third parties, or subcontracting with third parties to provide such Services.  In addition to this Agreement, 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 Client, and (ii) shall be incorporated into and made a part of the applicable SOW.

2. Client Responsibilities.

Client acknowledges that MicroAge’s obligations and performance of the Services described in the SOW are contingent upon Client complying with the responsibilities set forth below.

Client will ensure that:

• All appropriate data backups are performed.
• For onsite services, security passes or other necessary documentation are provided to MicroAge representatives performing the Services permitting them to enter and exit Client’s premises with laptop personal computers and any other materials needed to perform the professional services for the duration of this engagement.
• For remote services, all necessary remote access and system connectivity and/or a Client resource is available with necessary system access to allow services to be completed via web meeting.
• If the performance of this engagement requires electronic/network transfer of data, Client will provision and enable any network components or services required to facilitate the data transfer.
• All environment and operational requirements are met prior to implementation including, but not limited to power, network connections, floor space, and cooling for the duration of this Service engagement.
• Client will provide MicroAge with documentation detailing physical and logistical network topology as needed to perform the Services.
• Client will provide knowledgeable personnel as required by MicroAge to perform the Services.
• Client will provide timely, accurate, complete, and up-to-date documentation and information required for the performance of the Services throughout the Service engagement.
• Client will participate in testing/validation as required by MicroAge.
• Client is responsible for all network connectivity, performance, and configuration issues not included in the Services.
• Client is responsible for providing and scheduling any system maintenance window(s) as needed by MicroAge.
• Client represents and warrants that it has obtained all necessary approvals and consents from third parties required for MicroAge and its subcontractors, and hereby grants MicroAge and its subcontractors all necessary licenses to perform the Services.
• Client 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 Client.  Client shall provide, at no charge to MicroAge, office space, services and equipment (such as copiers, fax machines and modems) as MicroAge reasonably requires to perform the Services.

3. Performance Conditions.

• MicroAge shall not be responsible for the loss or corruption of any Client data or for any system downtime.
• Except as may be purchased under a separate MicroAge support or service agreement, MicroAge will not be responsible for any application or host system access that encompasses coding, scripting, application analysis, system performance, troubleshooting, or applications logins unless expressly described in the SOW.
• MicroAge may subcontract any or all portions of the Services, provided that MicroAge shall impose on such subcontracted individuals or companies the same obligations as those under the SOW.
• Where Client requires MicroAge to contract the services of a subcontractor specified by Client, Client will be responsible for the work to be performed by such subcontractor.  MicroAge’s agreement to integrate the work to be performed by such subcontractor for the purposes of this Agreement is on the basis that MicroAge will not be responsible for, or liable to Client or to any other third party for the work performed by, or any acts, omissions, or defaults of, such subcontractor(s), or MicroAge’s reliance thereon.  In such circumstances, Client will be responsible and liable for, and will indemnify and hold harmless MicroAge against and from, all claims, demands, proceedings, damages, losses, costs, and expenses (including reasonable attorneys’ fees and costs), made against, suffered or incurred by MicroAge, directly or indirectly as a result of or in connection with the work performed by any such subcontractor.

4. Service Engagement Duration and Scheduling.

• All scheduling is dependent upon the availability of MicroAge resources and must be confirmed and finalized with the MicroAge project manager.
• MicroAge shall make reasonable efforts to meet Client’s requested time schedule, however MicroAge’s standard resource lead time is four (4) weeks from the later of the execution of the SOW or Purchase Order.
• If Client delays, cancels, or reschedules Services less than ten (10) business days prior to scheduled dates, Client may incur a delay of up to four (4) weeks to reschedule.  The risk of delay can progressively increase if additional resources are required.  Furthermore, Client may incur additional consulting time and travel expenses for the canceled/rescheduled Services dates.  Unless otherwise specified in the SOW, the implementation schedule contemplates consecutive business days during normal business hours (8:00 a.m. to 6:00 p.m. local time) weekdays.
• Services not requiring presence at Client’s facilities may be performed at MicroAge’s facilities by mutual agreement between Client and MicroAge.
• As it pertains to pre-paid future services, MicroAge reserves the right, if through no fault of MicroAge, the Client does not utilize Services within 12 months of purchase, to terminate said services without notice, refund, or liability to MicroAge.

5. Project Scope Exclusions / Changes.

• Any additions or changes to the project scope described in the SOW must be mutually agreed upon between Client and MicroAge in writing using a Change Request.
• The execution of the Change Request by the Parties will cause the Change Request to become part of and incorporated into the SOW.  Commencement of the performance of the requested addition or change is conditioned upon the mutual execution of the Change Request by the Parties, and MicroAge’s receipt of an additional Purchase Order authorization to cover any possible and agreed upon incremental costs, if applicable.

6. Travel and Expenses.

• For time and material (“T&M”) engagements, Client agrees to reimburse MicroAge for travel and related expenses (“T&E”) as outlined in the SOW.  MicroAge will invoice Client monthly for the T&E amount and Client will pay such fees in accordance with MicroAge’s payment terms.
• For fixed fee engagements, any related expenses are included unless otherwise outlined in the SOW.  If T&E fees are outlined and incurred for fixed fee engagements, MicroAge will invoice Client monthly for the expenses and Client will pay such fees in accordance with MicroAge’s payment terms.

7. Software.

Software is the machine readable (object code) version of computer programs (“Software”).  Client’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.

8. Use of Products.

Client shall comply with the manufacturer’s Product specifications.  If Client fails to comply with the manufacturer’s Product specifications, Client acknowledges that such use, sale, or non-compliance is at Client’s sole risk.  Client shall indemnify, defend and hold MicroAge harmless from any claims based on a breach of this Section 8.

9. Product Information.

Unless otherwise expressly provided, MicroAge 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 MicroAge on an “AS IS” basis and does not form a part of the properties of the Product.  MicroAge 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.  MicroAge recommends that Client validate any Product Information before using or acting on such information.  All Product information is subject to change without notice.

10. Product Title and Delivery.

Shipment shall be F.O.B. shipping point and the manner of shipment shall be at MicroAge’s option.  Client shall be responsible for all shipping charges unless otherwise agreed upon.  All claims for loss or damage during shipment must be filed by Client with the carrier.  Claims against MicroAge for shortages occurring before delivery to carrier are subject to Client’s compliance with MicroAge’s Return Materials Authorization (“RMA”) policy as referenced in Section 11, below.  The sale of any of MicroAge’s Products to Client in no way conveys to Client, either express or implied, any intellectual property license whatsoever, except as may be granted by the MicroAge in the materials which accompany the Products upon delivery.  MicroAge 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 Client to arrange for and obtain insurance coverage for the Products, if so desired.

11. Returns.

Client may return Products to MicroAge only with a Return Material Authorization (“RMA“) number issued by MicroAge.  Client may only return Products to MicroAge in accordance with the return policies and specifications provided by the applicable manufacturer.  MicroAge will only issue an RMA if the defect is created solely by MicroAge or the original manufacturer, and only if Client meets the requirements of the original manufacturer.  Special orders and customized products are generally non-returnable.  MicroAge will not grant RMAs for damage, shortage or other discrepancy created by Client, the carrier or freight provider, or any other third party.  Upon receiving the RMA, Client must return the Products to MicroAge in compliance with MicroAge’s instructions in the RMA.  MicroAge or the original manufacturer may assess all Products returned by Client via RMA.  If MicroAge or the original manufacturer determines such Products are not eligible for return, MicroAge will send such Products back to Client on freight collect basis, or hold such Products for Client’s collection and on account at Client’s expense.  An unresolved RMA does not relieve the Client from its obligation to pay its invoices timely.

12. Fees and Payment Terms.

Client agrees to pay the fees, charges, and other amounts in accordance with the applicable SOW.  Payment is due as stated on MicroAge’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.  Client 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 MicroAge accepts partial payment in an amount less than the full amount of any invoice, such acceptance shall neither constitute a waiver of MicroAge’s right to collect the balance nor an accord and satisfaction, notwithstanding MicroAge’s endorsement of a check or other instrument.  In the event of Client’s bankruptcy or insolvency, MicroAge shall be entitled to cancel any order then outstanding without waiving any claims in law or equity.  If Client fails to comply with these payment terms, MicroAge reserves the right to withdraw credit, suspend or cancel performance under any or all Purchase Orders, SOWs, or other agreements, and all Client’s obligations to MicroAge shall become immediately due and payable.

13. Warranty and Disclaimers. 

13.1 Services.  MicroAge represents and warrants that all Services shall be provided in a professional and workmanlike manner in accordance with industry standards.

13.2 Products.  Client acknowledges that MicroAge is not the manufacturer of the Products.  To the extent legally and contractually permitted, MicroAge shall pass through to Client any transferable Product warranties, indemnities, and remedies provided to MicroAge by the manufacturer, including those for intellectual property infringement.  If required by law, MicroAge 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.

13.3 Disclaimer.  EXCEPT AS PROVIDED FOR IN THIS AGREEMENT, MICROAGE 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 MICROAGE HEREUNDER.  MICROAGE DOES NOT WARRANT THAT THE SERVICES OR ANY OTHER INFORMATION, MATERIALS, OR TECHNOLOGY PROVIDED UNDER THIS AGREEMENT WILL MEET CLIENT’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.

14. Limitation of Liability.

NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS TO THE CONTRARY CONTAINED HEREIN OR IN THE APPLICABLE SOW, EACH PARTY’S MAXIMUM LIABILITY FOR DAMAGES TO THE OTHER PARTY IN CONNECTION WITH THE PERFORMANCE OF THE SERVICES OR FAILURE TO PERFORM OR THE FURNISHING, PERFORMANCE OR USE OF ANY GOODS OR SERVICES SOLD OR DELIVERED HEREUNDER, WHETHER IN CONTRACT OR IN TORT (INCLUDING, WITHOUT LIMITATION, FOR BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, PRODUCT LIABILITY, STRICT LIABILITY IN TORT, BY STATUTE OR OTHERWISE), WILL NOT EXCEED THE AGGREGATE AMOUNT OF PRODUCTS OR SERVICES PAID BY CLIENT UNDER THE APPLICABLE SOW.  IN NO EVENT, WILL MICROAGE BE LIABLE TO THE CLIENT FOR INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, OR FOR LOSS OF REVENUE, LOSS OF BUSINESS OR OTHER FINANCIAL LOSS, LOST OR CORRUPTED DATA, PUNITIVE LOSS, DAMAGE OR EXPENSE ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OF THE SERVICES UNDER THESE TERMS, EVEN IF THE CLIENT KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE.

15. Indemnification.

Each Party shall indemnify, defend and hold harmless the other Party, its officers, directors, managers, employees, principals (partners, shareholders or holders of an ownership interest, as the case may be) and agents, from and against any third party claims, demands, loss, damage, or expense relating to bodily injury or death of any person or damage to real and/or tangible personal property directly caused by the negligence or willful misconduct of the indemnifying Party, its personnel or agents in connection with the performance of the Services hereunder.

16. Term and Termination.

16.1 Term.  This Term of this Agreement shall commence on the Effective Date, which shall be the date of acceptance of the first Purchase Order or SOW under this Agreement, and shall run for a period of not less than one (1) year from the Effective Date, and shall automatically renew for consecutive one-year periods unless terminated by either Party with at least 30 days’ written notice prior to renewal date, or unless earlier terminated in accordance with the applicable SOW or the provisions in this Section 16 below.  Unless otherwise stated in the applicable SOW, the term of each SOW shall last until performance thereunder is completed.

16.2 Termination for Breach.  Either Party may, at its option, terminate this Agreement 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 in accordance with Section 20 below, 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 30 days of receipt of such Notice, and these Terms shall terminate in the event that such cure is not made within such 30-day period.  Without limiting the foregoing, MicroAge may immediately terminate this Agreement upon written Notice in the event that Client becomes insolvent or enters bankruptcy during the Term.

16.3 Termination of Individual SOWs.  Each SOW shall terminate upon the earliest to occur of the following:  (i) the completion of all Services specified in the SOW; (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 SOW; or (iv) the termination of this Agreement.  Except as otherwise provided herein, neither Party shall have any further rights or duties under any SOW upon its expiration or termination.

16.4 Termination for Convenience.  MicroAge shall have the right to terminate any SOW for convenience on at least 30 days’ prior written Notice to Client.  If MicroAge exercises such termination right, MicroAge shall refund to Client the amount of any pre-paid amounts for the terminated SOW.

16.5 Survival.  The provisions of this Section 16 and Sections 13 (Warranty/Disclaimers), 15 (Indemnification), 18 (Confidentiality), 19 (Non-Solicitation), 23 (Force Majeure) will survive the termination of this Agreement.

17. Security Agreement.

Client hereby grants to MicroAge, 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 MicroAge, in its sole discretion, to declare all obligations of Client immediately due and payable, and in such event, MicroAge shall have all the rights and remedies of a secured party under applicable law.  In connection with the security interest granted herein, MicroAge is expressly authorized, at its discretion, to file one or more financing statements or other notices under applicable law naming Client as debtor and MicroAge as secured party.  Client agrees to execute such documents requested by MicroAge to record and otherwise perfect this security interest.

18. Confidentiality. 

18.1 Ownership of Confidential Information.  The Parties acknowledge that during the performance of this Agreement, 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 this Agreement “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-Client specific data, and aggregated statistical data contained therein) of MicroAge shall constitute Confidential Information of MicroAge.  The 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.

18.2 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 this Agreement; and (v) to return or destroy all Confidential Information of the other Party in its possession upon termination or expiration of this Agreement.

18.3 Confidentiality Exceptions.  Notwithstanding the foregoing, the provisions of Sections 18.1 and 18.2 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 (a) 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 (b) to establish a Party’s rights under these Terms, including to make such court filings as it may be required to do.

18.4 Effect of Termination.  Upon any termination of this Agreement or SOW, 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.

19. Non-Solicitation.

During the Term of this Agreement and SOW and for an additional two (2) year period after termination, Client will not, without the prior written consent of MicroAge, solicit the employment (as employee, consultant or agent) of any director, officer, or employee of MicroAge; provided that the foregoing (i) shall not restrict general solicitations of employment through advertisements or other means that are not directed specifically at such directors, officers or employees, and (ii) shall not restrict hiring or retention of any such directors, officers or employees who have been terminated by MicroAge.

20. Notices. 

All notices, demands and other communications required or permitted hereunder or in connection herewith (“Notice”) shall be in writing and shall be deemed to have been duly given if delivered or mailed in the United States by first class mail, postage prepaid, to MicroAge at the following address, or to such other address it may hereafter specify by Notice:

Frontier Technology, LLC dba MicroAge
15210 South 50^th Street, Suite 180
Phoenix, AZ  85044
Attn: Larry Fulop
notices@microage.com

21. Choice of Law.

This Agreement shall be governed by and construed in accordance the laws of the State of Arizona without regard to principles of conflicts of laws.  Any and all disputes arising out of or relating to this Agreement shall be resolved in Maricopa County, Arizona, and each of the Parties waives any objection based on forum non conveniens and venue with respect to any action brought arising out of or relating to this Agreement.

22. Right to Preliminary and Injunctive Relief.

Each Party acknowledges and agrees that a breach or threatened breach by a Party of any of its obligations hereunder involving intellectual property rights, Confidential Information, Non-Solicitation, or compliance with applicable laws would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy.  Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

23. Force Majeure.

MicroAge 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 MicroAge.  Any delivery date may be extended, at MicroAge’s option, to the extent of any delay resulting from any force majeure event.

24. No Assignment.

This Agreement shall be binding upon the Parties and their respective successors and permitted assigns and may not be assigned by either Party without the written consent of the other Party, which consent will not be unreasonably withheld.