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1. AGREEMENT. These Purchase Terms and Conditions shall apply to any Purchase Order (a “P.O.”) issued to you (“Seller”) by Avnet Asia Pte. Ltd., or by any affiliate, including without limitation its Taiwan branch hereinafter referred to as “Buyer” as of the Effective Date. Unless otherwise provided in a written agreement executed by Seller and Buyer, each P.O. accepted by Seller, together with all documents expressly referenced in such P.O., and these Terms and Conditions, shall constitute the entire agreement (the “Agreement”) between Buyer and Seller with respect to the purchase, sale and delivery of the products described in such P.O. (the “Products”) and the performance of any work described in the P.O. and shall supersede all prior agreements, understandings and representations between Seller and Buyer with respect thereto. Buyer may exercise any of its rights or obligations under this Agreement through an affiliate. Buyer and Seller are individually referred to as a “Party” and collectively as the “Parties”.
Any additional or different terms stated by Seller in any proposal, quotation, confirmation, acknowledgment, invoice, or otherwise shall be of no force and effect, and no course of dealing, usage of trade, or course of performance shall be relevant to explain or supplement any term expressed in the Agreement.
Buyer expressly disclaims any other new or supplemental terms and conditions.
Buyer may distribute or resell Products purchased under this Agreement worldwide through its affiliates or through third party representatives appointed by Buyer.
2. DELIVERY. Time is of the essence for delivery of Products. All Products will be delivered DAP Buyer's destination (Incoterms 2010). Seller agrees to deliver Products ordered by Buyer to the location and within the time specified in Buyer’s Order pursuant to the terms of this Agreement. Seller may not ship before the promised ship date without Buyer's prior written approval. Seller agrees to pay premium freight when its delivery will miss the acknowledged ship date. Buyer may designate the carrier to be used, and, in absence of such specification by Buyer, Seller shall select a carrier in its reasonable discretion. For the avoidance of any doubt, under no circumstance shall Buyer be the importer of record for this engagement.
3. TITLE AND RISK OF LOSS. Seller warrants that it has good and clear title, free from any security interest, lien, or other encumbrance, to all Products delivered to Buyer. Title and risk of loss or damage to the Products shall pass to Buyer upon delivery to the destination point as stated in Section 2 above, subject to Buyer’s right to reject non-conforming Products. Notwithstanding the foregoing, risk of loss of any non- conforming Products shall remain with Seller unless and until Buyer finally accepts such Products.
4. INSPECTION; ACCEPTANCE. Buyer shall accept or reject shipments from Seller within sixty (60) days from the Due Date. If defective Products are rejected by Buyer, then Seller shall issue a return material authorization (RMA) number for their return. Rejected shipments shall be the property of Seller at the original place of delivery, and Seller shall use its designated freight forwarder to pick up the rejected shipment. In no event may Seller sell, loan or otherwise make available the Products, whether conforming or non-conforming, to any party other than Buyer without Buyer’s prior written approval.
5. PRICE, PAYMENT AND TAXES. Seller shall be paid net sixty (60) days after Buyer’s receipt of invoice. All amounts payable under this Agreement (e.g., proposals, quotations, changes, invoices) shall be stated and paid in US dollars. Prices do not include goods and services taxes, value-added tax (VAT)
sales, use, excise or similar taxes, duties, or other charges. To the extent such taxes or other charges are required by law to be
collected by Seller, such taxes shall be separately itemized on
the invoices to which they apply.
Each Party shall bear and pay all taxes required to be paid by such Party under applicable law, including those imposed by its own national government and any political subdivision
thereof, as the result of the existence of the Agreement or the exercise of rights hereunder.
Notwithstanding the foregoing, however, if any Party (the “Payer”) is required under applicable law (including by its national government or any political subdivision thereof) to pay any withholding or other tax in respect of any of the payments and/or royalties made by it to the other Party under this Agreement, then
Payer shall pay such tax on behalf of said other Party and may deduct such tax from said payments and/or royalties otherwise due and shall furnish said other party, within a reasonable time after its receipt of any tax certificates from the applicable government entity, such certificates and other evidence of deduction and payment thereof as the other Party may properly and reasonably require.
Each Party shall provide each other with reasonable assistance in seeking all exemptions, rebates, and similar reimbursements related to such tax if and as may be reasonably requested by the other Party.
Buyer shall have no obligation to pay for any Products that are rejected or as to which acceptance is revoked in accordance with Section 4 above.
6. WARRANTIES. Seller warrants to Buyer that at the time of delivery of Products to Buyer and for a period of three (3) years following such date, all Products delivered to Buyer under this Agreement (a) shall be manufactured in a professional and workmanship like manner, (b) shall be free, and shall remain free, from any defects in workmanship and materials (except for any materials supplied by Buyer), (c) shall fully conform in all respects to Seller’s or agreed specifications, (d) shall contain all new materials,(e) shall comply in all respects with all requirements of any statutory regulation, order, contract or any other instrument having the force of law, which may be in operation at the time when the Products are supplied, (f) shall be new and unused, and (g) shall not be included any gold, tantalum, tin or tungsten originated in the Democratic Republic of the Congo or an adjoining country. Seller will provide information and supporting documents to this effect as reasonably requested by Buyer. Seller represents and warrants that it is either the original equipment manufacturer (“OEM”), original component manufacturer (“OCM”), or a franchised or authorized distributor of the OEM/OCM for the Products; or if Seller is not the OEM/OCM or a franchised or authorized distributor of the OEM/OCM, then Sell confirms by acceptance of orders hereunder that the Products have been procured from the OEM/OCM or a franchised or authorized distributor of the OEM/OCM.
Seller shall use best efforts to mitigate any impact on Buyer due to its breach of the above warranties. With respect to any Products which fail to meet the warranty in this Section, Seller shall, at Buyer’s option and Seller’s sole expense, (i) re-perform any non- conforming service of the Products, (ii) replace the non- conforming or defective Products with conforming and non- defective Products as soon as reasonably possible, or (iii) promptly refund to Buyer the purchase price paid therefore, including the cost of any Buyer-consigned materials incorporated in the Products.
7. INDEMNIFICATION. In addition to the warranties set forth in Section 6 above, Seller warrants that all Products delivered and work performed shall be free of any claim that such Products or work infringes any patent, copyright, trade secret, or other intellectual property right of any third party, except insofar as such claims are based solely on Seller’s specific compliance with Buyer’s written design specifications for such Products or work with which Seller could not comply in a non-infringing manner.
Seller shall indemnify, defend and hold Buyer and its customers harmless against any losses, damages, liabilities, costs and expenses (including reasonable attorneys’ fees), arising out of or resulting from any claim alleging facts that, if true, would constitute a breach of the warranty stated in this Section 7. Buyer will notify Seller of any such claim and at Buyer’s option Seller will, at Seller’s sole expense, either (i) defend or settle such claim, or (ii) allow Buyer to defend itself, provided, however, any settlement requires the other Party’s consent. In the event that any Product or work is determined to infringe any intellectual property right of any third party, in addition to the obligations set forth above, Seller shall, at Buyer’s option, either:
(i) obtain from such third party, at Seller’s
(ii) sole expense, the right for Buyer
(iii) and Buyer’s customers to continue using the infringing Products and/or work, (ii) modify the Products and/or work at Seller’s sole expense so as to render them non- infringing, while maintaining substantially identical fit, form and function, or (iii) refund to Buyer the aggregate purchase prices paid for all infringing Products and work. Seller shall also indemnify, defend and hold Buyer harmless of and from any and all liabilities, losses and damages (including costs, expenses and attorneys' fees, and costs of establishing rights to indemnification) resulting from any claim of any Buyer’s customers or any third party (including employees of Buyer or Seller), for any claim including: (a) death or personal injury; (b) breach by Seller of any warranty, representation, or covenant under this Agreement; (c) non-compliance with requirements hereunder or applicable laws, regulations, directives, or ordinances; or (d) damage to property arising out of, or in any way connected with, the Products or the sales, distribution, use or operation thereof.
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8. PASS THROUGH WARRANTIES. Buyer may pass the warranties and remedies under Section 6 and 7 through to Buyer's customers and to Buyer's customer’s end users. It shall commence upon delivery of Product to Buyer's customers. Section 6 and 7 are not confidential information and Buyer may disclose them to its customers.
9. CONFIDENTIALITY; PUBLICITY. Buyer and Seller are subject to the terms and conditions of the mutual non-disclosure agreement between the Parties (the “NDA”). The terms, except any termination clause, of the NDA are incorporated into this Agreement by this reference. Further, Seller shall not issue any news release, advertisement, publicity, or promotional material regarding the Agreement or Seller’s relationship with Buyer without Buyer’s prior written consent which may be withheld in Buyer’s sole discretion. The provisions of this Section 9 shall survive the termination or cancellation of any or all P.O.’s under the Agreement.
10. CHANGES; END OF LIFE.. Buyer may at any time instruct Seller to make changes within the general scope of the P.O. in any of the following: (i) Seller’s method of shipment or packing; (ii) the quantities of Products ordered; (iii) the place of delivery; and/or (iv) the delivery schedule. If such changes do not require Seller’s expenditure of materially more time, effort and/or cost, then Seller shall implement such changes at no additional charge to Buyer and with no change to the delivery schedule. If such changes will require materially more time, effort and/or cost (a “Material Change”), and Buyer agrees to such Material Change, then Buyer and Seller will negotiate in good faith an amendment to the P.O., if any, necessitated by such Material Change.
If Seller discontinues Products or makes Products obsolete, Seller will notify Buyer at least ninety (90) business days prior to the effective date of such change. Buyer will then notify Seller of the affected Products in its inventory for Seller’s repurchase. All end of life Products will be subject to the return policy in Section 4 INSPECTION; ACCEPTANCE. Furthermore, the Seller will grant Buyer the right of a life time buy upon request.
11. EXPORT. Seller agrees to notify Buyer prior to delivery if Products to be delivered or sold to Buyer are subject to the International Traffic in Arms Regulations (“ITAR”, 22 CFR 120 et seq., http://pmddtc.state.gov/) or the Wassenaar International Munitions List (“IML”, http://www.wassenaar.org/). Seller will notify Buyer’s Global Trade Compliance Department via email at emily.chu@avnet.com with the Product part number, P.O. number, Export Control Classification Number (ECCN) and ITAR/IML control number. Additionally, any Products controlled under the ITAR or IML delivered to Buyer shall be marked in accordance with US export law. Seller agrees that all information provided to Buyer shall be current, accurate, and complete, and further Seller agrees to indemnify Buyer against any and all financial responsibility arising from Seller’s failure to supply such accurate information. Such indemnity shall include, without limitation, any fines, penalties, forfeitures, or counsel fees incurred or imposed as a result of actions taken by the importing country’s government.
12. ENVIRONMENTAL AND SOCIAL RESPONSIBILITY. As a member of the Electronic Industry Citizenship Coalition (“EICC”), the Buyer requires Seller’s adoption of the EICC Code of Conduct and cooperation with audits, if necessary. More information on the EICC Code of Conduct is found atwww.eicc.info. Buyer requires Seller’s support for conflict-free sourcing of minerals. Buyer requires Seller source metals to be incorporated into Product(s) from smelters and refiners that are identified as conflict-free by internationally recognized audit programs (e.g., Conflict Free Smelter Program). Seller is required to provide Buyer the conflict minerals sourcing information upon request via the EICC-GeSI Conflict Minerals Reporting Template. Both the compliant smelter list under the Conflict Free Smelter Program, and the EICC-GeSI Reporting Template can be found at www.conflictfreesmelter.org.
Seller must also comply with applicable Product environmental regulations including, but not limited to, the ozone depleting chemicals (ODC) provision of the U.S. Clean Air Act, Restriction of Hazardous Substances (RoHS) and European Union Registration, Evaluation, Authorization and Restriction of Chemical substances (EU REACH), where applicable.
13. TERMINATION; CANCELLATION. Unless otherwise provided in a written agreement executed by Seller and Buyer, Buyer may terminate any P.O. or any portion thereof upon giving notice to Seller of such termination not less than two (2) business days prior to the applicable Due Date set forth in the original P.O. Within ten (10) business days after receiving notice of such termination, Seller shall advise Buyer in writing of any cancellation charges which may be due as a direct result of such termination. To the extent such charges are deemed reasonable in Buyer’s reasonable discretion, Buyer will pay such cancellation charges within sixty (60) days after the date of the Seller’s written request therefor. Any request by Seller for cancellation charges shall be deemed waived if not asserted in writing within ten (10) business days after receipt of Buyer’s termination notice.
Notwithstanding the foregoing, Buyer may cancel any P.O. or portion thereof without charge at any time upon notice to Seller if Seller fails to timely perform any of its obligations under the Agreement and such failure is not cured within ten (10) days after written notice of such failure is delivered to Seller.
14. ASSIGNMENT. Buyer may assign all or a portion of its rights, duties, and obligations under this Agreement to any entity (i) with which Buyer is affiliated (ii) into which Buyer may be merged or reorganized, (iii) which is a Buyer “spin-off,” or (iv) to which all or a portion of Buyer’s capital stock or assets or those of a relevant business unit may be sold or assigned. For the purposes of this Agreement, a spin-off means when a corporation takes a subsidiary, division, or part of its business and separates it from the parent company by creating a new, independent, free-standing company. There shall be no charge to Buyer or Seller or the assignee of either for any assignment hereunder.
Seller may not assign, delegate, or otherwise transfer any of its rights, interests, or obligations under this Agreement, without the prior written consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed provided.
15. SUBCONTRACTING. If approved by Buyer, the Seller may subcontract a portion of its responsibilities under this Agreement provided that any subcontractor retained shall be obligated in writing to the same confidentiality and ownership obligations and restrictions as set forth herein with respect to the Seller. If the Seller subcontracts certain portions of its responsibilities, the term “employee” as used herein shall be deemed to include such subcontractor and its employees. Seller shall be responsible for all acts and/or omissions of any subcontractor as if such acts or omissions had been performed by Seller.
16. INSURANCE. Whenever Seller has in its possession Property of Buyer, Seller shall be deemed an insurer thereof and shall be responsible for its safe return to Buyer. Seller shall be liable in the event there is any loss, damage or injury due to the (a) negligence, (b) gross negligence, (c) willful misconduct, (d) intentional or fraudulent acts, or (e) failure to
follow Seller’s internal written policies and/or procedures by any party other than Buyer or Buyer’s affiliates. Seller shall also maintain at all times during performance of its work related to this P.O. Commercial General Liability insurance that shall specifically include contractual liability coverage. Seller shall have all insurance policies endorsed to waive the insurer’s rights of subrogation in favor of Buyer.
17. APPLICABLE LAW. The Agreement shall be governed by the laws of the country where the Buyer’s entity (“Governing Country”) that placed the Order is located regardless of any conflict of law provisions. All disputes arising in connection therewith shall be heard only by a court of competent jurisdiction in Governing Country, and the prevailing party in any legal proceeding shall be entitled to recover court costs and its reasonable attorneys’ fees incurred in connection therewith. The
U.N. Convention on Contracts for the International Sale of Goods shall not apply to the purchase of Products or services by Buyer.
18. BUSINESS DOCUMENTATION. Documentation necessary for performance under the Agreement, other than Seller’s documentation, shall be provided by Buyer. All documentation, which includes, but is not limited to quotations, proposals, correspondence, specifications, and reports, shall be in the English language.
19. CORRESPONDENCE. All invoices, with Buyer’s applicable P.O. number, shall be sent to the attention of the _________ Department via email at @avnet.com. Any notice, demand, acknowledgement, or other communication made or given by Seller to Buyer in accordance with this Agreement, other than invoices, shall be in writing, and sent (i) via facsimile or email (with confirmation of receipt) or (ii) by registered or certified mail, return receipt requested; postage prepaid, or (iii) by overnight courier, next business day delivery service and addressed to the following:
Avnet Asia Pte Ltd.
Address: 151 Lorong Chuan, New Tech Park #05- 03, Singapore 556741.
Attention: Gina Teo, Sr. Director & General Counsel, APAC
Email: Gina.Teo@Avnet.com
20. MISCELLANEOUS PROVISIONS. No addition or modification of the Agreement shall be effective unless made in writing and signed by the respective representatives of Seller and Buyer. Any delay or failure to enforce at any time any provision of the Agreement shall not constitute a waiver of the right thereafter to enforce each and every provision thereof. If any of the provisions of the Agreement is determined to be invalid, illegal, or otherwise unenforceable, the remaining provisions shall remain in full force and effect. The rights and remedies expressly provided to Buyer herein are not exclusive but are cumulative and in addition to any other rights and remedies available at law or in equity.
21. COUNTERPARTS AND FACSIMILES. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Delivery of an executed counterpart of this Agreement by facsimile or other standard means of electronic transmission is deemed effective as delivery of an originally executed counterpart of this Agreement.
22. SURVIVABILITY. The following sections shall survive any expiration or termination of this Agreement: Section 5 (Price, Payment and Taxes), Section 6 (Warranties), Section 7 (Infringement), Section 8 (Buyer Property), Section 9 (Confidentiality; Publicity), Section 11 (Export), Section 13 (Termination; Cancellation), Section 16 (Insurance), Section 17 (Applicable Law), Section 19 (Correspondence), Section 20 (Miscellaneous Provisions), Section 22 (Survivability) and Section 23 (Personal data protection).
23. PERSONAL DATA PROTECTION. Seller and Buyer will comply with applicable laws and regulations. Seller shall collect, process, and transfer all personal data in connection with this Agreement in accordance with the applicable privacy laws and regulations.
24. COMPLIANCE WITH ANTI-CORRUPTION LAWS. Seller represents and warrants to Buyer that, in connection with the transactions contemplated by this Agreement or in connection with any other business transactions involving Buyer, Seller and everyone acting on its behalf, will comply with and will not violate any anti-corruption law or international anti-corruption standards, including but not limited to the U.S. Foreign Corrupt Practices Act, in connection with the services it has agreed to perform under this Agreement. Seller represents and warrants to Buyer, that Seller has not, and covenants and agrees that it will not, in connection with the transactions contemplated by this Agreement or in connection with any other business transactions involving Buyer, make promise, or offer to make any payment or transfer anything of value, directly or indirectly, to any individual to secure an improper advantage. It is the intent of the parties that no payments or transfer of value shall be made which have the purpose or effect of public or commercial bribery, acceptance of or acquiescence in extortion, kickbacks, or other unlawful or improper means of obtaining or retaining business.
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