1. GENERAL: These standard terms and conditions and the Avnet, Inc. (“Avnet”) written specifications, quotations, proposals, or Statement of Work to which these standard terms and conditions are attached (collectively “Agreement”) shall apply to and are automatically incorporated in, all quotations, orders, agreements and contracts for goods (including without limitation, hardware, firmware and software products and parts, and design service deliverables) (collectively, “Products”) and services (including without limitation, services training, programming, design, consulting, maintenance, engineering, parts and repair services) (collectively, “Service”) purchased or received by any and all customers or recipients (collectively, the “Customer”) from Avnet. No addition to or modification of this Agreement will be accepted by or binding upon Avnet unless consented to in writing and signed by an authorized Avnet representative (and such consent may be withheld by Avnet for any reason or no reason). Any and all terms and conditions that may be proposed by the Customer or appear in any Purchase Order (“PO”) and/or any document or instrument from the Customer, shall automatically be deemed to be objected to and not accepted by Avnet unless consented to in writing and signed by an authorized Avnet representative (and such consent may be withheld by Avnet for any reason or no reason), and this Agreement shall take precedence, prevail, control and solely govern in all instances. The Agreement contains the entire understanding and agreement of Avnet and the Customer concerning the subject matter thereof, and there are no promises, agreements, conditions, understandings, warranties or representations (oral or written, express or implied) regarding the subject matter of this Agreement other than as set forth in this Agreement. Any and all prior agreements with respect to the subject matter of this Agreement are hereby revoked and forever terminated. The Agreement is, and is intended by Avnet and the Customer to be, an integration of any and all prior agreements or understandings (oral or written) with respect to the subject matter of this Agreement, and this Agreement shall not be amended or modified except upon the written agreement of Avnet. The Agreement shall survive the delivery and/or completion of the Product and any Services described in this Agreement. THE CUSTOMER acknowledges that IT has read the AGREEMENT, understands THE AGREEMENT, and agrees to be bound by THE AGREEMENT.
2. ACCEPTANCE: All POs are subject to acceptance by Avnet. POs are not binding upon Avnet until accepted by an authorized Avnet representative. Avnet reserves the right to refuse service, terminate accounts or cancel orders in its sole discretion.
3. ORDERS: Unless otherwise stated on the quote, Avnet quotes are invitations to tender and are subject to change at any time without notice. All POs for Products that Avnet identifies as non-standard or "NCNR" are non-cancelable and non-returnable. Avnet may identify Products as non-standard or "NCNR" by various means including quotes, Products lists, attachments or exhibits. Customer may not change, cancel or reschedule POs for standard Products without Avnet's consent. If Avnet consents to Customer’s request to terminate or cancel a PO or reduce the quantities or scope of Product or Service for such PO, then in addition to (and not in limitation of) any and all rights and/or remedies provided in this Agreement, at law or in equity, the Customer shall be liable for and shall promptly pay and reimburse Avnet for, all costs incurred by Avnet associated with such purchase, including but not limited to: materials purchased that are non-returnable and non-cancelable, back-charges from vendors, labor expended including time spent in the process of terminating the project, NRE costs, liabilities and obligations incurred by Avnet, plus cancellation charges equal to fifteen percent (15%) of the cancelled portion of the project cost, in relation to such purchase. Avnet reserves the right to allocate the sale of Products among its customers.
4. SCOPE CHANGES: The purchase price and delivery cost charged by Avnet to the Customer for the Product or Services ordered by the Customer, may be increased by Avnet as a result of the Customer’s changes to the requirements, specifications, or assumptions set forth in Avnet’s written specifications, quotation, or order acknowledgement, and the Customer shall pay such increased purchase price and costs within thirty (30) days of the date of Avnet’s invoice therefor.
5. DELIVERY: Shipping dates are merely estimates, but every reasonable effort will be made to ship according to schedule. Delivery times do not include time for Customer to provide technical or requirements data or information necessary for Avnet’s performance, nor time for Customer’s review and approval of interim milestone deliverables. Delivery times may vary depending on component availability. Customer agrees that Avnet shall not be responsible or liable for any damages arising out of or related to any failure to deliver Product within the time prescribed therefor. Avnet is not liable for delays in delivery, for partial or early deliveries and Customer shall accept delivery. Customer may not cancel any other POs based on delayed delivery of any part of a PO.
6. PRODUCT RETURN: PCustomer may return Products to Avnet only with a return material authorization ("RMA") number issued by Avnet. (A) Returns for Visual Defect: Customer must notify Avnet in writing of any damage to the outer packaging or the Products, shortage, or other discrepancy ("Visual Defect") within three business days after receipt of the shipment; otherwise, Customer is deemed to have accepted the Products. (B) Returns for Product Warranty: Customer must notify Avnet in writing stating the specific Product defect within the warranty period. Avnet will only issue an RMA if the defect (either for Visual Defect or for Product Warranty) is created solely by Avnet or the original manufacturer, and only if Customer meets the notice requirement. Avnet will not grant RMAs for damage, shortage, or other discrepancy created by Customer, the carrier or freight provider, or any other third party. Upon receiving the RMA, Customer must return the Products to Avnet in compliance with Avnet's instructions in the RMA. Avnet may assess all Products returned by Customer via RMA. If Avnet determines such Products are not eligible for return, Avnet will send such Products back to Customer on freight collect basis, or hold such Products for Customer's collection and on account at Customer's expense.
7. PRODUCT INFORMATION: Product information (for example, statements or advice (technical or otherwise) advertisement content, and information related to a Product's specifications, features, export/import control classifications, uses or conformance with legal or other requirements) is provided by Avnet on an "AS IS" basis and does not form a part of the properties of the Product. Avnet 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. Avnet recommends Customer validate any Product information before using or acting on such information. All Product information is subject to change without notice. Avnet is not responsible for typographical or other errors or omissions in Product information.
8. INSURANCE: At all times during the term of this Agreement, Customer shall maintain the following insurance coverages in such amounts as provided herein:
(i) worker’s compensation and disability insurance coverage in statutory form; (ii) commercial general liability insurance with coverage for bodily injury, property damage and personal and advertising injury with limits of $2,000,000 per occurrence and $4,000,000 in the aggregate, such insurance shall include coverage for the products-completed operations hazard; (iii) employers liability insurance with limits of not less than $1,000,000 for bodily injury by accident and $1,000,000 for bodily injury by disease, with an aggregate limit of $1,000,000; (iv) commercial automobile liability insurance with Symbol 1 (any auto) covering owned, non-owned, and hired vehicles with limits of $1,000,000; (v) Commercial Umbrella Liability Insurance, with minimum limits of $20,000,000 per occurrence, $20,000,000 for the products-completed operations hazard, and $20,000,000 in the aggregate, with the insurance required under clauses (i), (ii), and (iii) above scheduled as underlying insurance; (vi) Errors and Omissions Insurance, including Network Security and Privacy coverage, with a minimum limit of $5,000,000; (vii) Professional Liability Insurance in an amount of not less than $5,000,000 per occurrence and in the aggregate; and (viii) Network Security and Privacy Liability Insurance (extending such coverage to the services contemplated by this Agreement) with a $5,000,000 limit of liability on a claims made basis.
All policies obtained by Customer shall be written by companies which are reasonably acceptable to Avnet and have an AM Best rating of A VIII or higher. The insurance coverage under each policy maintained by Customer shall be primary and non-contributory with respect to insurance written in the name of Avnet and the insurer shall be liable up to and including the total limit of liability set forth in the declaration without right of contribution from Avnet or any other insurance company. None of the policies obtained by Customer shall have a self-insured retention.
All policies obtained by Customer shall include a waiver of subrogation in favor of Avnet. Customer’s insurance policies must: (i) provide that Avnet will receive at least thirty (30) days’ prior written notice of any material changes or cancellation thereof; and (ii) include Avnet, its officers, directors and employees as additional insureds on a primary and non-contributory basis as respects any insurance under which Avnet and/or its affiliates are first named insureds.
Customer shall deliver duly issued certificates of insurance evidencing such coverage to Avnet prior to any performance under this Agreement, and thereafter on the annual anniversary of the Agreement. The amount and coverage of such insurance will not limit Customer’s liability nor relieve Customer of any other obligation under this Agreement.
If Customer fails to obtain or maintain any of the foregoing insurance coverages, it will assume and hereby assumes liability and risk for any and all damages, demands, claims, losses, actions, liabilities, lawsuits, judgments, and expenses (including without limitation, reasonable attorney’s fees and expenses) to the extent that same would have been covered as if the foregoing insurance coverage had been obtained and maintained.
9. EXPORT CONTROL: The Product and technology purchased or received under this Agreement are subject to export control laws, restrictions, regulations and orders of the United States. The Customer shall adhere to all United States export laws, rules and regulations, including the U.S. Export Administration Regulations and the International Traffic in Arms Regulations, and shall not export or re-export any Product or technology received from Avnet without the appropriate licenses from the United States government and the government of any destination country. Customer shall be responsible to obtain any license to export, re-export or import as may be required. Customer shall not export or re-export Product or technology to any restricted country and/or to any company, individual or government entity listed on the Denied Persons, Specially Designated Nationals, Entity, Unverified, or Debarred Parties Lists, or similar lists promulgated by the United States. Customer represents and warrants that it is not on the Denied Persons, Specially Designated Nationals, Entity, Unverified, or Debarred Persons Lists and is not otherwise prohibited by law from purchasing the Product and technology hereunder. Customer shall inform Avnet in writing if the Product or technology being contracted is subject to control under the EAR or ITAR.
10. DISCLAIMER. CUSTOMER ASSUMES TOTAL RESPONSIBILITY FOR USE OF THE PRODUCT HEREUNDER AND USES THE SAME AT ITS OWN RISK. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE PRODUCTS AND THEIR DESIGN ARE PROVIDED “AS‐IS”, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, SYSTEM INTEGRATION, DATA ACCURACY, QUIET ENJOYMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION GIVEN BY AVNET, ITS AFFILIATES, CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE ANY ADDITIONAL WARRANTY. AVNET DOES NOT REPRESENT THAT THE PRODUCTS WILL PREVENT UNAUTHORIZED ACCESS BY THIRD PARTIES, BE UNINTERRUPTED, SECURE OR ERROR FREE.
THE PRODUCTS ARE NOT DESIGNED, RECOMMENDED OR AUTHORIZED FOR ANY OF THE FOLLOWING APPLICATIONS: HIGH‐RISK APPLICATIONS SUCH AS SAFETY, LIFE SUPPORT, SURGICAL IMPLANT, NUCLEAR, OR AIRCRAFT APPLICATIONS, OR FOR ANY USE OR APPLICATION IN WHICH THE FAILURE OF A SINGLE COMPONENT COULD CAUSE SUBSTANTIAL HARM TO PERSONS OR CATASTROPHIC PROPERTY LOSS; OR FOR ANY MILITARY OR WEAPONRY USE, INCLUDING BUT NOT LIMITED TO CHEMICAL, NUCLEAR, BIOLOGICAL, AIRCRAFT, MISSILE, AND SIMILAR MILITARY APPLICATIONS. CUSTOMER ASSUMES ALL RISK AND LIABILITY FOR USE OF THE PRODUCTS IN ANY SUCH APPLICATIONS AND AGREES TO DEFEND, INDEMNIFY AND HOLD AVNET, ITS AFFILIATES AND THE MANUFACTURER OF THE PRODUCTS HARMLESS AGAINST ALL LOSSES, LIABILITIES, CLAIMS AND DAMAGES IN CONNECTION WITH THE USE OF THE PRODUCTS IN ANY OF THESE PROHIBITED APPLICATIONS.
11. INDEMNIFICATION. Customer agrees to defend, indemnify and hold harmless Avnet and its subsidiaries, affiliates, directors, officers, employees, agents and subcontractors against all claims, damages, losses and liabilities (including reasonable and documented costs, expenses and attorney’s fees, and costs of establishing rights to indemnification) (collectively “Losses”), to the extent arising out of or resulting in whole or in part from any actual or alleged claim (each, a “Claim”) of any of Customer’s customers or any third party (including employees of Customer or Avnet), (i) for breach of this Agreement or a Statement of Work by Customer, (ii) for death or personal injury, (iii) for property damage arising out of, or in any way connected with, Product or the sale, distribution use or operation thereof, (iv) for product liability or violation of environmental, health, medical or safety standards, (v) that Customer or the Product failed to comply with any applicable rules, laws, or regulations (except to the extent such compliance is being provided by Avnet as specified in a Statement of Work), (vi), if the Product is a prototype, that the Product is not a commercial device or suitable for sale or (vii) for willful misconduct or negligent act or omission of Customer, its employees or its agents; provided that Customer shall not indemnify any such parties set forth above to the extent that the applicable Claim is a result of willful misconduct or grossly negligent act or omission of Avnet or the applicable affiliates, in which case Avnet shall fully indemnify Customer for any and all Losses with respect to such Claim.
12. LIMITATION OF LIABILITY: AVNET’S LIABILITY ON ANY ACTIONS, CLAIMS, OR CAUSES OF ACTION ARISING FROM OR RELATED TO THE AGREEMENT, THE PERFORMANCE OR BREACH OF THE AGREEMENT OR CONNECTED IN ANY MANNER WITH THE SUPPLYING OF ANY PRODUCTS OR SERVICES HEREUNDER, THE DESIGN, THE SALE, RESALE, OPERATION OR USE ALLOCABLE TO SUCH PRODUCTS, PART OR SERVICES THEREOF INVOLVED IN THE CLAIM, WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND FOR PROPERTY DAMAGE, PERSONAL INJURY AND DEATH) OR OTHER GROUNDS, SHALL NOT IN ANY EVENT EXCEED THE PURCHASE PRICE OF THE PRODUCT, PARTS OR SERVICES INVOLVED IN THE CLAIM, REGARDLESS OF CAUSE OR FAULT. IN NO EVENT SHALL AVNET BE LIABLE FOR CLAIMS BASED UPON BREACH OF CONTRACT, BREACH OF EXPRESS OR IMPLIED WARRANTY, OR NEGLIGENCE FOR ANY DAMAGES, WHETHER DIRECT, IMMEDIATE, OR FORESEEABLE FOR ANY EXPENSES INCURRED BY REASON OF THE USE OR MISUSE, DESIGN, SALE OR PRODUCTION OF THE PRODUCT, THE COMPONENTS THEREFOR, OTHER PRODUCTS OR SERVICES, WHICH DO OR DO NOT CONFORM TO THE AGREEMENT. AVNET SHALL NOT BE RESPONSIBLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, REVENUES, SALES, DATA, BUSINESS, GOODWILL OR USE, EVEN IF AVNET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THESE DISCLAIMERS AND LIMITATIONS OF LIABILITY WILL APPLY REGARDLESS OF ANY OTHER CONTRARY PROVISION IN ANY OTHER AGREEMENT OR DOCUMENT. Any cause of action against Avnet must be instituted within one (1) year from the date of purchase or provision of the Products or Services.
13. FORCE MAJEURE: Avnet shall not be liable or responsible for any losses or damages caused by any detentions, delays or failures to perform resulting in whole or in part from accidents, fires, Acts of God, severe weather conditions, labor disruptions, government decrees or controls, insurrections, war, risks, shortages, inability to procure or ship product or obtain permits and licenses, insolvency or other inability to perform by the manufacturer or supplier, delay in transportation, any other commercial impracticability and/or any circumstances beyond the control of Avnet in its business operations.
14. INTELLECTUAL PROPERTY RIGHTS:
a) Unless otherwise expressly agreed between the parties, all ownership, rights, title and interest to or in all rights, title or interest for or associated with the Product or Services (including but not limited to intellectual property therefor; collectively, the “IP Rights”) shall be the sole and exclusive property of Avnet. Upon the Customer’s payment in full to Avnet of the total purchase price and related project costs incurred by Avnet, Avnet will assign all such IP Rights exclusively and royalty-free to the Customer. Avnet shall retain its rights to the underlying engineering knowledge, design practices, technology, processes, etc. that were utilized by Avnet in creating the Product per the specifications of Customer. The Products offered for sale by Avnet may be subject to patent, trademark, copyright, design and other rights of third parties. Avnet shall in no event whatsoever be responsible or liable in the event of any claim of infringement of any such rights.
b) Customer will indemnify, defend and hold Avnet and its affiliates, agents, officers, directors, employees and subcontractors harmless from and against all claims, damages, losses and reasonable expenses (including but not limited to reasonable attorneys’ fees), to the extent arising out of or resulting in whole or in party from i) any claim that the design of the products provided by Customer infringe a third party patent, copyright, trademark, trade secret or other intellectual property right, or ii) any claims arising out of the design of the product provided by Customer for death, personal injury, property damage, product liability or violation of environmental, health or safety standards.
15. WARRANTY. Subject to Section 12, Avnet provides the following warranties:
a) Component portions of the Product that were purchased by Avnet and re-sold to Customer may be covered by warranties originating with the original manufacturer. Such warranties, in whatever form they may exist, shall be transferred (to the extent transferable) by Avnet to the Customer upon the Customer’s full payment to Avnet of the purchase price invoiced by Avnet to the Customer for or related to the Product.
b) Avnet shall carry out the Services in a workmanlike and professional manner. If the Customer notifies Avnet in writing, within ninety (90) days from the date of Avnet’s shipment of the Product to the Customer, of any claimed defect in the Services, and such claim by Customer is verified by Avnet after Avnet’s appropriate inspection, Customer’s sole and exclusive remedy shall be limited to Avnet’s correction of the claimed defect at the design and documentation level, excluding repair or replacement of materials or purchased parts.
c) Production of Product beyond the engineering prototype level shall be free from defects in workmanship for a period of ninety (90) days from the date of Avnet’s shipment of the Product to the Customer, excluding defects in the design or engineering of the Product. Customer's sole and exclusive remedy shall, at the sole discretion of Avnet, be limited to either: i) repair or replacement of the defective Product, or ii) refund of the purchase price in exchange for return of the defective Product.
No warranty will apply if the Products are in any way altered or modified after delivery by Avnet.
16. AGENCY CERTIFICATION AND APPROVAL: Avnet makes no claims, representations or warranties with respect to agency certifications or approval unless otherwise specifically stated in Avnet 's proposal or quotation; such filings or agency approval are the sole and exclusive responsibility and obligation of Customer.
17. SHIPMENTS: Unless otherwise stated by Avnet in writing, all Avnet deliveries from the European Union are CPT Customer's delivery location, and all Avnet deliveries from outside the European Union are FCA Avnet's warehouse or, for drop shipments, FCA the manufacturer's warehouse (INCOTERMS 2010). For sales from outside the European Union or Australia, title shall pass to Customer upon delivery of the Products to the carrier. For sales from the European Union or Australia, as a form of payment security, title shall pass to Customer upon payment in full for the Product by Customer. In case of an onwards sale, Customer assigns all rights in the related receivables to Avnet until Customer has made payment in full. Once the Product is processed or combined with other items (the "Processed Product"), Avnet's retained title transfers to a share in the title in the Processed Product reflecting the value of the Product relative to the value of the Processed Product. This Section does not apply to sales of software.
18. TERMS OF PAYMENT: Payment is due as stated on Avnet's invoice without offset or any deduction for withholding taxes or otherwise. On any past due invoice, Avnet may charge interest from the payment due date to the date of payment at 18% per annum or the maximum amount allowed by applicable law, plus reasonable attorneys' fees and collection costs, with a minimum fee of 40 Euros for sales in France. At any time, Avnet may change the terms of Customer's credit. Avnet may apply payments to any of Customer's accounts. If Customer defaults on any payment, Avnet may reschedule or cancel any outstanding delivery or PO and declare all outstanding invoices due and payable immediately. Unless otherwise provided by applicable law, Customer credits provided by Avnet will expire if unused within 12 months.
19. TAXES. Avnet prices and/or quotations do not include sales, use, excise or similar taxes. All applicable taxes must be paid by Customer to Avnet, or Customer shall provide Avnet with a tax-exempt certificate acceptable to the appropriate taxing authorities.
20. GOVERNING LAW: This Agreement shall be governed, construed, and enforced in accordance with the laws of the country where the Avnet entity that accepted Customer's Purchase Order ("Governing Country") is located without reference to the conflict of laws principles. If the Governing Country is the United States of America, the laws and courts of the State of Arizona will apply. The United Nations Convention for the International Sale of Goods shall not apply. The courts of the Governing Country shall have jurisdiction and venue over all controversies arising out of, or relating to, this Agreement.
21. RESTRICTIVE COVENANTS: For a period of three (3) years commencing on the date of this Agreement (as set forth in written specifications, quotations or proposals to which these standard terms and conditions are attached), the Customer agrees and covenants to Avnet that the Customer shall not hire, employ, contract with, retain, or otherwise induce (or attempt any of the foregoing) any employee or independent contractor of Avnet (collectively, "Worker") to leave or terminate such Worker’s employment, relationship or service with or to Avnet or directly or indirectly assist any other person or entity in requesting or inducing any Worker to leave or terminate the employ, relationship or service of or with Avnet. If the Customer breaches any of the foregoing provisions of this Section, then the Customer shall promptly pay to Avnet liquidated damages equal to fifty percent (50%) of such Worker's then-current annual salary or compensation. This provision for liquidated damages shall be in addition to, and not in limitation of, any and all rights and/or remedies provided in this Agreement, at law or in equity (including but not limited to Avnet’s right to injunctive relief).
22. ASSIGNMENT: Neither this Agreement nor any interest herein shall be assignable by the Customer without the prior written consent of Avnet (which consent may be withheld for any or no reason).
23. SEVERABILITY: If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable, such provision(s) shall be enforced to the fullest extent permitted by applicable law, and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
24. WAIVER: Avnet’s failure to insist on performance of any term or condition contained in this Agreement, or failure to exercise any of Avnet’s rights hereunder, shall not constitute a waiver of any of Avnet s rights or remedies under this Agreement.
25. NO THIRD PARTY BENEFIT: The provisions set forth in this Agreement are for the sole benefit of the parties hereto, and confer no rights, benefits or claims upon any person or entity not a party hereto.
26. GOVERNMENT CONTRACTS: Avnet is a distributor of "Commercial Items" as defined in FAR 2.101. Avnet does not intend to sell Products to the U.S. Government or a higher-tier contractor that fail to meet the "commercial item" definition in FAR 2.101. Accordingly, Avnet agrees only to the clauses in the Federal Acquisition Regulation ("FAR") and agency FAR supplements (as applicable based on the U.S. Government customer) that are explicitly required to be inserted in a subcontract for commercial items, as set forth in FAR 52.244-6(c)(1) or an agency FAR supplement. In accordance with FAR 12.211, Customer will receive only those rights in technical data customarily provided to Avnet by the manufacturers. By no means will this be interpreted as providing to Customer unlimited rights in data, software, or intellectual property rights provided by the manufacturers or any other third party. Avnet specifically rejects the flow down of the requirements of the: (i) Trade Agreements Act, FAR 52.225-5 or DFARS 252.225-7021; and (ii) the Buy American Act, FAR 52.225-1 or DFARS 252.225-7001. Avnet cannot comply with any Preference for Domestic Specialty Metals regulation unless (A) there is an applicable exception or (B) the manufacturer represents and warrants that the Products are compliant.