The purchase of products or services (“Products”) by ACDS, and its divisions, subsidiaries and affiliates (“ACDS”) are subject to these terms and conditions (“Agreement”) regardless of any other conflicting additional terms or conditions. with or contradict this Agreement in any purchase order, non-negotiated document, quotation, acknowledgment or other communication. The terms and conditions pre-printed on any Supplier (“Supplier”) document and/or ACDS’s failure to object to conflicting or additional terms will not change or add to the terms of this Agreement. If the parties have a negotiated agreement for the relevant Products, these Terms will govern and supersede these Terms and Conditions.
1. ORDERS. Any order placed by ACDS will be made on ACDS's standard purchase order form and submitted in writing by fax or electronic means acceptable to ACDS ("Order"). Supplier must acknowledge receipt of ACDS Orders in writing or via EDI within one (1) business day of receipt. Order acknowledgments must contain the shipping date promised by the supplier. All orders will be deemed accepted by Supplier, based on the ship date requested by ACDS, if Supplier does not provide written notice of rejection within three (3) business days of receipt of the order. Any partial execution of an Order will also be deemed accepted by the Supplier. ACDS may cancel any Order containing a clerical error within five (5) business days following the placement of the Order. ACDS may change or cancel orders or reschedule shipment dates for any ordered product, provided that it notifies Supplier at least ten (10) business days prior to the last confirmed shipment date.
2. APPOINTMENT. Supplier authorizes ACDS to distribute or resell Products purchased under this Agreement throughout the world through its Affiliates or third party representatives designated by ACDS. “Affiliate” means any person, partnership, joint venture, corporation, corporation or other form of business, domestic or foreign, that directly or indirectly controls or owns, is controlled or owned by, or is under common control or ownership with ACDS .
3. PRICE . The price of any product will be indicated in the ACDS order. ACDS will not be liable for any taxes relating to any order other than any sales taxes that Supplier is legally required to collect from ACDS.
(a) PRICE PROTECTION. In the event that Supplier reduces the price of a Product, ACDS will be entitled to a credit equal to the difference between the net price paid by ACDS, less previous credits granted by Supplier, and the new reduced price of the Product multiplied by the quantity of this product in ACDS inventory or in transit as of the effective date of the discount.
(i) ACDS will submit to the Supplier, no later than sixty (60) business days after receipt of notification of such a price reduction, an inventory report of the Product as of the effective date, accompanied by a debit note reflecting the credit described above.
(ii) Supplier shall be deemed to have verified the Product Inventory Report and Debit Note, unless Supplier disputes the same in writing within sixty (60) business days of receipt of such report and this note.
(iii) Undisputed debit notes will be credited to ACDS's account as of the effective date of such price reduction.
(b) PRODUCTS SHIPPED AFTER PRICE REDUCTION. Products shipped on or after the effective date of any price reduction will be shipped and billed at the price in effect at the time of shipment.
(c) PRODUCTS SHIPPED AFTER PRICE INCREASE. Products shipped after the effective date of any price increase will be shipped and billed at the price in effect at the time the Order is placed.
4. PAYMENT TERMS. Payment terms for Products purchased in the ACDS Order will be sixty (60) calendar days net from the invoice date. ACDS will also receive an additional 2% discount if payments are made within 10 calendar days of the invoice date. ACDS has the right to compensate Supplier for programs, promotions, special prices, discounts and for any ACDS returns as described herein.
5. DELIVERY AND TITLE. Time is of the essence for product delivery. All Products will be delivered to DDP ACDS (Incoterms 2010). Supplier agrees to deliver the Products ordered by ACDS to the location and within the time specified in the ACDS Order in accordance with the terms of this Agreement. Supplier may not ship prior to the promised ship date without prior written approval from ACDS. Supplier agrees to pay additional freight charges when its delivery misses the recognized shipping date. ACDS may designate the carrier to be used and, in the absence of such specification by ACDS, Supplier will select a carrier in its reasonable discretion. Supplier guarantees title to all Products sold to ACDS and warrants that such Products are not subject to any security interests, liens or other encumbrances. Title and risk of loss pass to ACDS. For the avoidance of doubt, ACDS will in no way be the importer of record for this commitment.
6. ACCEPTANCE AND RETURN OF PRODUCT. All products are subject to inspection and testing before acceptance. ACDS will use reasonable efforts to notify Supplier of any obvious defect, damage or discrepancy within thirty (30) business days of delivery. Acceptance will not be deemed a waiver of any warranty hereunder or otherwise provided by law. If ACDS finds that the Products or any part thereof do not conform to the requirements of the Order, the Supplier, at ACDS' option: will replace such non-conforming Products, accept the return for credit at the invoice price or refund the ACDS purchase price for these non-compliant products. Some products. Returns of products not as ordered (including DOA), excess, recalled products and rejected shipments due to early or late delivery will be returned freight collect at the risk and expense of the supplier.
7. DEFECTIVE PRODUCT. Notwithstanding any other provision of this Agreement, ACDS may refund for full credit the cost of the Product by ACDS (including, without limitation, assembly, disassembly, transportation and labor costs), less any previous credits issued by the Supplier, all Products. found defective upon delivery or within a reasonable time thereafter; provided, however, that such defective Products are returned to Supplier, freight collect, within ninety (90) business days of ACDS's discovery of the defect.
8. END OF LIFE. If Supplier discontinues the Products or renders the Products obsolete, Supplier will notify ACDS at least ninety (90) business days prior to the effective date of such change. ACDS will then inform the Supplier of the Products concerned in its inventory for the Supplier's repurchase. All end-of-life Products will be subject to the return policy in Section 6 PRODUCT ACCEPTANCE AND RETURN. Additionally, Supplier will grant ACDS lifetime purchasing rights upon request.
9. WARRANTY
(a) COMPLIANCE WITH THE LAW. The Supplier warrants to ACDS that the design, construction and quality of the Products shall comply in all respects with all the requirements of any statutory regulation, order, contract or other instrument having the force of law, which may be in force at the time. where the Products are supplied.
(b) SUPPLIER MANUFACTURER’S WARRANTY. Supplier warrants the Products in accordance with the greater of the following: (i) the manufacturer's standard warranty, (ii) the warranty publicly posted on the manufacturer's website, (iii) the warranty required by local law, or ( iv) 24 months for purchases from Asia or the European Union. ACDS is authorized to pass this warranty on to ACDS customers and end users. The warranty period as defined in this Section 9 WARRANTY will begin to run with respect to ACDS customers and any end user upon delivery of the product to the end user. Any product to be returned under warranty may be shipped to the supplier either by ACDS or directly by ACDS customers or end users. The Supplier will indemnify ACDS for any liability linked to a breach of warranty.
(c) NEW/UNUSED PRODUCT. The Supplier warrants that the Products supplied to ACDS by the Supplier are new and unused.
(d) CONFORMITY OF THE PRODUCT TO MANUFACTURER’S SPECIFICATIONS. Delivery of any Product by Supplier to ACDS shall constitute Supplier's warranty that the Product conforms to the manufacturer's specifications.
(e) CONFLICT MINERALS. Supplier represents and warrants that any gold, tantalum, tin or tungsten included in the Products supplied to ACDS by Supplier either (i) came from recycled sources or scrap metal or (ii) did not originate in the Democratic Republic of the Congo or a neighboring country. . Supplier will provide information and supporting documentation to this effect as reasonably requested by ACDS.
10. ORIGINAL MANUFACTURING PARTS. Supplier 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 products; or if the Supplier is not the OEM/OCM or a franchised or authorized distributor of the OEM/OCM, the Supplier confirms by acceptance of the orders below that the Products have been purchased from the OEM/OCM OCM or a franchised or authorized distributor of the OEM/OCM.
11. SERVICES PERFORMED ON THE SITE. Where applicable, any equipment of the Supplier located on the ACDS site remains at all times at the risk of the Supplier, who will insure this equipment against any risk of loss or damage. ACDS accepts no liability for any loss or damage to Supplier's equipment, howsoever caused, including by ACDS's negligence.
12. INTELLECTUAL PROPERTY
(a) SUPPLIER INTELLECTUAL PROPERTY WARRANTY. Supplier warrants that any Product purchased hereunder, and the manufacture, sale or use thereof, will not infringe or violate any patent, copyright, trademark, trade secret or other intellectual property right of a third party.
(b) COMPENSATION. Supplier will indemnify, defend and hold ACDS, its successors, assigns, customers and end users harmless from all losses, damages, costs and expenses (including reasonable attorneys' fees and costs of establishing rights indemnification and settlement) based on any claims, demands, suits, proceedings and actions (“Claim”) relating to any alleged infringement of any patent, copyright, trademark, trade secret or other right intellectual property rights of any third party, including any claim that the product or the process, design or methodology used to manufacture the Product infringes any patent, copyright, trademark, trade secret or other intellectual property right of any third party. 'a third.
(c) ACDS OBLIGATION WITH RESPECT TO SUPPLIER'S IP INDEMNITY. ACDS will notify Supplier in writing of such Claims, grant Supplier full authority to defend and settle such Claims, and, upon Supplier's request, provide reasonable assistance and information, at Supplier's expense and expense.
(d) SUPPLIER’S OBLIGATION IN CASE OF IP CLAIM. If a product is the subject of a complaint or if ACDS is prohibited from selling or using a product, the supplier:
(i) obtain for ACDS the right to sell and use the Product;
(ii) provide ACDS with a non-infringing replacement or modified product; Or
(iii) if Supplier is unable to provide the above remedies, refund the full purchase price for this product.
(e) INTELLECTUAL PROPERTY RIGHTS.
(i) The intellectual property rights (IPR) of either party or any third party used in the performance of this Agreement will remain the property of that party, and except as provided in this section, nothing herein Agreement will not transfer or be deemed to transfer the intellectual property rights of either party or any third party.
(ii) All documents, drawings, specifications, information, patents, patent applications, inventions, developments or processes or any copyrighted material created and developed by Supplier specifically for ACDS under this Agreement (“ work product"), except that any Vendor IPR contained in such work product shall be owned by ACDS. Supplier hereby grants to ACDS a worldwide, non-exclusive, royalty-free, perpetual, non-sublicensable license to use Supplier's IPR, which is used in the performance of this Agreement.
(iii) All specifications provided by ACDS, and all intellectual property rights arising therefrom and in the work product, shall be vested in and shall at all times remain the property of ACDS. These specifications may only be used by Supplier as necessary to perform this Agreement.
(iv). Upon ACDS's request and at no additional cost to ACDS, Supplier shall promptly do all such things and execute all documents necessary in ACDS's opinion (a) to assign all intellectual property rights in or arising out of any Product work at ACDS, absolutely and (b) enable ACDS to defend and enforce its IPR.
13. GENERAL COMPENSATION. Supplier will indemnify, defend and hold ACDS harmless from any liability, loss and damage (including costs, expenses and attorneys' fees, and costs of establishing indemnification rights) arising from any claim by any customer of ACDS or of any third party. (including employees of ACDS or Supplier), for any claim, including: (a) death or personal injury; (b) breach by Supplier of any warranty, representation or covenant under this Agreement; (c) breach of contract; (d) failure to comply with any requirements hereof or applicable laws, regulations, directives or orders; or (e) damage to property arising out of or in any way connected with the Products or the sale, distribution, use or exploitation thereof.
14. LIMITATION OF LIABILITY. ACDS WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO ORDERS OR ANY TERMINATION, REJECTION OR REVOCATION OF ACCEPTANCE OF ORDERS, INCLUDING WITHOUT LIMITATION, INTERRUPTION CHARGES BUSINESS, REFUND, LOSS OF PROFIT OR REVENUE, PROMOTION OR MANUFACTURING EXPENSES, ADDITIONAL, DAMAGE TO SUPPLIER’S REPUTATION OR LOSS OF CUSTOMERS, EVEN IF ACDS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ACDS’ LIABILITY EXCEED THE PRICE SET FORTH IN THE ORDER.
15. USE OF TRADEMARKS/TRADE NAMES. ACDS is authorized to use the brands, trade names and logos of the Supplier in connection with the sale of Products by ACDS. ACDS will have the right to transmit this right of use to its reseller clients.
16. CONFIDENTIALITY. If either party receives written information marked “Confidential” and/or “Proprietary” from the other party, the receiving party agrees not to use such information except in connection with the performance of this Agreement, and to treat this information in the same way as it treats it. its own confidential information. The obligation to keep information confidential does not apply to information of this type that has been disclosed in publicly available sources; is, through no fault of the party receiving the confidential information, disclosed in a publicly available source; is in the rightful possession of the party receiving the confidential information without obligation of confidentiality; or must be disclosed by law. Unless otherwise specified herein, the obligation not to disclose is valid for a period of one (1) year after disclosure of the confidential information.
17. QUALITY. The Supplier shall use reasonable efforts to achieve the objectives set out in the ACDS Global Supplier Quality Manual, which can be found at: www.acds-online.com
18. EXPORT. Supplier acknowledges and agrees that ACDS may export Products as permitted by the laws, regulations and export control orders of the United States and other countries to which it may ship Products. The parties shall observe and comply with all applicable laws, rules and regulations applicable to the performance of their respective obligations under this Agreement, including, but not limited to, anti-corruption laws (such as the United States Foreign Corrupt Practices Act) and regulations regarding the import or export of products.
19. GLOBAL SUPPLY CHAIN SECURITY COMPLIANCE. Supplier warrants and represents to ACDS that: (1) if eligible for the Customs-Trade Partnership Against Terrorism (“C-TPAT”) or other comparable customs certification programs, Supplier will be certified and validated and Supplier will provide ACDS with its Status Verification Interface Number(s) (“SVI”), or other program identifying information, to confirm the above representation prior to shipment; (2) if not eligible for C-TPAT or other comparable customs certification programs, Supplier fully understands the requirements of C-TPAT certification and will use commercially reasonable efforts to comply with this certification program and help ACDS maintain its certification with this compliance request. Supplier will provide evidence of such compliance, including such security certifications and results of internal security audits as ACDS may reasonably require; (3) if the Supplier's status under this subsection changes, the Supplier will promptly notify ACDS in writing; and (4) Supplier will comply with any pre-arranged visits that ACDS auditors may conduct to verify whether Supplier's procedures comply with the criteria set forth by C-TPAT or another comparable customs compliance program.
20. GOVERNMENT CONTRACTS. If ACDS customers elect to sell Supplier's products (including supplies, software, documentation, or services) to the U.S. Government or to a prime contractor selling to the U.S. Government, the products are "commercial items" within the meaning of 48 CFR 2.101. Supplier will comply with the provisions of FAR 52.244-6, Subcontracting for Commercial Items and Commercial Components. Should U.S. Government end users acquire Products that consist of “commercial computer software” and “commercial computer software documentation,” as those terms are used in 48 CFR 12.212, their rights will be consistent with the rights set forth in 48 CFR 12.212 which generally limits their rights to licenses customarily provided by Provider to the public. Supplier will also comply with the provisions of DFARS 252.211.7003. Supplier will also provide information necessary to assist ACDS in analyzing DFARS 252.225-7014 (Alternative 1), National Specialty Metals Preference (Berry Amendment), and other applicable federal laws. Supplier will use good faith efforts to determine whether forced or indentured child labor has been used to extract, produce or manufacture Products supplied under this Agreement. The supplier may be required to certify that it has no knowledge of any such use of child labor.
21. STATUTORY COMPLIANCE. With respect to Products ordered under this Agreement, Supplier warrants and agrees that it has complied with all applicable federal, state and local laws, codes and requirements. The Supplier warrants in particular that all Products supplied to ACDS comply with all applicable EU laws and directives transposed into the national laws of the Member States, e.g. environmental legislation such as RoHS/REACH regulation on substances, CE technical compliance and waste management. The supplier undertakes to comply with and bear all costs linked to compliance with current and applicable European legislation. Supplier agrees to indemnify and hold harmless ACDS, its successors and assigns, and the customers of any of them, from all losses, damages, costs and expenses (including attorneys' fees reasonable costs and costs of establishing compensation rights) which may be incurred by the supplier's non-compliance with this paragraph. ACDS reserves the right to return any non-compliant Product at the Supplier's expense.
22. OZONE DEPLETING SUBSTANCES. ACDS reserves the right to reject any product containing or manufactured with substances identified as Class I or Class II ozone-depleting substances by the United States Environmental Protection Agency pursuant to Title VI of the Amendments to the Clean Air Act of 1990, and any amendments thereto, whether or not these products shall not bear labeling.
23. GENERAL
(a) This Agreement will be governed, construed and enforced in accordance with the laws of the country where the ACDS entity that placed the Order is located (“Governing Country”). The courts of the governing country shall have jurisdiction and venue in all disputes arising out of or relating to this Agreement. If the governing country is the United States of America, the laws and courts of the State of Arizona shall apply without reference to Arizona's conflict of law principles; and the state or federal courts of Arizona shall have jurisdiction and venue in all controversies arising out of or relating to this Agreement. The United Nations Convention for the International Sale of Goods does not apply.
(b) Supplier may not assign this Agreement without the prior written consent of ACDS, and ACDS Affiliates may perform ACDS's obligations under this Agreement. This agreement is binding on successors and assigns.
(c) This Agreement may only be modified in writing signed by authorized representatives of both ACDS and Supplier.
(d) ACDS and Supplier are independent contractors and agree that this agreement does not establish a joint venture, agency or partnership relationship.
(e) ACDS's failure to object to any document, communication or act of Supplier shall not be deemed a waiver of any of these terms and conditions. remedies provided in this Agreement, ACDS retains all rights existing at law or in equity, and the fact that ACDS does not affect coverage does not preclude any other remedy.
(f) The unenforceability of any of these terms or conditions will not affect the remainder of the terms or conditions.
(g) ACDS is not responsible for failure to perform its obligations under this Agreement due to causes beyond its control (for example: acts of nature, acts or omissions of Supplier, operational disruptions, disasters of man-made or natural origin, epidemic medical crises, strikes, criminal acts, delays in delivery or transportation, or inability to obtain labor or materials through its usual sources).
(h) The Products, including software or other intellectual property, are subject to all applicable third party rights, such as patents, copyrights and/or user licenses, and Supplier will comply to these rights.
(i) Supplier and ACDS will comply with applicable laws and regulations. Supplier shall collect, process and transfer all Personal Data in connection with this Agreement in accordance with applicable privacy laws and regulations.