978.856.0111

Phoenics Electronics Terms & Conditions


Terms and Conditions of Sale

The sale of products and services ("Products") by Phoenics Electronics Corporation ("Phoenics") to a customer (“Customer”) are subject to these terms and conditions ("Agreement") regardless of other terms or conditions in any purchase order, document, or other communication of Customer ("Order") or Phoenics’s failure to object to such other terms. This Agreement may only be modified in writing signed by authorized representatives of both Phoenics and Customer.

  1. ORDERS. Unless otherwise stated on the quote, Phoenics quotes are invitations to tender and are subject to change at any time without notice. All Orders are subject to acceptance by Phoenics. Contracts between Customer and Phoenics are formed upon Phoenics's written acceptance, Electronic Data Interchange (“EDI”) acknowledgment or execution of Customer's Order and are subject to this Agreement. All Orders for Products that Phoenics identifies as non-standard or "NCNR" are non-cancelable and nonreturnable. Phoenics 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 Orders for standard Products without Phoenics's consent. Phoenics reserves the right to allocate the sale of Products among its customers.
  2. PRICES. Unless otherwise stated on Phoenics’s proposal, quote or invoice, prices are for Products only and do not include taxes, freight, duties or any other charges or fees for additional services (collectively, “Additional Fees”). Unless otherwise stated on Phoenics’s proposal, quote or invoice, Customer is responsible for any and all Additional Fees.
  3. TERMS OF PAYMENT. Payment is due as stated on Phoenics’s invoice without offset or any deduction for withholding taxes or otherwise. On any past due invoice, Phoenics may charge interest from the payment due date to the date of payment at eighteen percent (18%) per annum or the maximum amount allowed by applicable law, plus reasonable attorneys’ fees and collection costs. At any time, Phoenics may change the terms of Customer's credit. Phoenics may apply payments to any of Customer's accounts. If Customer defaults on any payment, Phoenics may reschedule or cancel any outstanding delivery or Order and declare all outstanding invoices due and payable immediately. Unless otherwise provided by applicable law, Customer credits provided by Phoenics will expire if unused within twelve (12) months.
  4. DELIVERY. Unless otherwise stated by Phoenics in writing, and all Phoenics deliveries from outside the European Union are FCA Phoenics's warehouse or, for drop shipments, FCA the manufacturer's warehouse (INCOTERMS 2010). Phoenics's delivery dates are estimates only and subject to Phoenics's timely receipt of supplies. Phoenics is not liable for delays in delivery, for partial or early deliveries and Customer shall accept delivery. Customer may not cancel any other Orders based on delayed delivery of any part of an Order.
  5. TITLE. Title shall pass to Customer upon delivery of the Products to the carrier. This section does not apply to sales of Software (as defined below).
  6. SOFTWARE. Software is the machine readable (object code) version of computer programs (“Software”). Customer’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.
  7. WARRANTY. Customer acknowledges that Phoenics is not the manufacturer of the Products. To the extent legally and contractually permitted, Phoenics shall pass through to Customer any transferable Product warranties, indemnities, and remedies provided to Phoenics by the manufacturer, including those for intellectual property infringement. If required by law, Phoenics 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. All warranty claims shall be time-barred twelve (12) months from the time of delivery of the nonconforming Products. If Phoenics performs value-added work such as integration work, tape-and-reel, or programming, Phoenics warrants such value-add work will conform to Customer’s written specifications accepted by Phoenics for ninety (90) days after Phoenics delivery. Customer will be deemed the manufacturer of such value-added Products. PHOENICS MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, SUCH AS WARRANTY OF MERCHANTABILITY, FITNESS FOR PURPOSE OR NONINFRINGEMENT. Customer’s sole remedies for breach of Phoenics’s warranty are, at Phoenics’s choice: (i) repair of the Products; (ii) replacement of the Products; or (iii) refund of Customer’s purchase price for the Products. Phoenics makes no representation or warranty with respect to Software and will have no liability in connection therewith. Unless it is specifically stated in the Software’s applicable license agreement, SOFTWARE IS PROVIDED “AS IS” WITH NO ADDITIONAL WARRANTY.
  8. PRODUCT RETURN. Customer may return Products to Phoenics only with a return material authorization (“RMA”) number issued by Phoenics. (A) Returns for Visual Defect: Customer must notify Phoenics in writing of any damage to the outer packaging or the Products, shortage, or other discrepancy (“Visual Defect”) within three (3) business days after receipt of the shipment; otherwise, Customer is deemed to have accepted the Products. (B) Returns for Product Warranty: Customer must notify Phoenics in writing stating the specific Product defect within the warranty period. Phoenics will only issue an RMA if the defect (either for Visual Defect or for Product Warranty) is created solely by Phoenics or the original manufacturer, and only if Customer meets the notice requirement. Phoenics 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 Phoenics in compliance with Phoenics’s instructions in the RMA. Phoenics may assess all Products returned by Customer via RMA. If Phoenics determines such Products are not eligible for return, Phoenics 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.
  9. LIMITATION OF LIABILITY. Phoenics’s liability to Customer is limited to Customer’s direct damages up to an amount not exceeding the price of the Product at issue. This limitation of liability does not apply in case of death or personal injury caused by Phoenics’s negligence. Phoenics is not liable for and Customer is not entitled to any indirect, special, incidental or consequential damages (for example, loss of profits or revenue, loss of data, loss of use, rework, repair, manufacturing expense, costs of product recall, injury to reputation or loss of customers). To the extent Phoenics cannot lawfully disclaim any implied or statutory warranties, Customer’s statutory warranty rights are not affected by this limitation of liability.
  10. FORCES BEYOND PHOENICS'S CONTROL. Phoenics is not liable for failure to fulfill its obligations under this Agreement due to causes beyond its reasonable control (for example, acts of nature, acts or omissions of Customer, operational disruptions, man-made or natural disasters, epidemic medical crises, materials or Product shortages, strikes, criminal acts, delays in delivery or transportation, or inability to obtain labor, materials or Products through regular sources).
  11. USE OF PRODUCTS. Customer shall comply with the manufacturer's Product specifications. Products are not authorized for use in life support systems, human implantation, nuclear facilities or any other application where Product failure could lead to loss of life or property damage. If Customer uses or sells the Products for use in such applications or fails to comply with the manufacturer's Product specifications, Customer acknowledges that such use, sale, or non-compliance is at Customer's sole risk. Customer shall indemnify, defend and hold Phoenics harmless from any claims based on: (i) Phoenics's compliance with Customer's designs, specifications, or instructions, (ii) modification of any Product by anyone other than Phoenics, or (iii) use of Products in combination with other products or in violation of this clause.
  12. EXPORT/IMPORT. Certain Products and related technology sold by Phoenics are subject to export control regulations of the United States, the European Union, and/or other countries, excluding boycott laws ("Export Laws"). Customer shall comply with such Export Laws and obtain any license or permit required to transfer, export, re-export or import the Products and related technology. Customer shall not export or reexport the Products and related technology to any country or entity to which such export or re-export is prohibited, including any country or entity under sanction or embargoes administered by the United States, European Union or other countries. Customer shall not use the Products and related technology in relation to chemical, biological or nuclear weapons, rocket systems (including ballistic missile systems, space launch vehicles and sounding rockets) or unmanned air vehicles capable of delivering same, or in the development of any weapons of mass destruction.
  13. ELECTRONIC ORDERS. If any part of the purchase and sale of Products, including Customer's NCNR acknowledgment or demand forecast, uses EDI, Customer's internal portal, third party portal or any other electronic means ("Electronic Purchase Order"), this Agreement will continue to apply to the purchase and sale of Products between Customer and Phoenics. Customer's acceptance of Phoenics's acknowledgment request or Phoenics's specification of details with respect to Electronic Purchase Orders via writing, email or other EDI is binding on Customer.
  14. ENVIRONMENTAL COMPLIANCE. Where applicable, Customer is responsible for all obligations and liabilities under the European Union’s (i) Waste Electrical and Electronic Equipment Directive (2012/19/EU), (ii) Packaging Waste Directive (94/62/EC) and (iii) Batteries Directive (2006/66/EC), all as amended and all related national implementing measures in force from time to time.
  15. GENERAL.
    1. This Agreement shall be governed, construed, and enforced in accordance with the laws and courts of the State of Arizona. The United Nations Convention for the International Sale of Goods shall not apply. The courts of Arizona shall have jurisdiction and venue over all controversies arising out of, or relating to, this Agreement.
    2. Customer may not assign this Agreement without Phoenics’s prior written consent. Phoenics's affiliates may perform Phoenics's obligations under this Agreement. This Agreement is binding on successors and assigns.
    3. The unenforceability or invalidity of any of these terms or conditions will not affect the remainder of the terms or conditions.
    4. Products, including software or other intellectual property, are subject to any applicable rights of third parties, such as patents, copyrights and user licenses, and Customer shall comply with such rights.
    5. Customer shall comply with all applicable laws, including anticorruption laws such as U.S. Foreign Corrupt Practices Act and UK Bribery Act.
    6. The parties agree that electronic signatures may be used and will be legally valid, effective, and enforceable.
    7. 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 Phoenics on an "AS IS" basis and does not form a part of the properties of the Product. Phoenics 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. Phoenics recommends Customer validate any Product Information before using or acting on such information. All Product information is subject to change without notice. Phoenics is not responsible for typographical or other errors or omissions in Product information.
  16. GOVERNMENT CONTRACTS. Phoenics is a distributor of "Commercial Items" as defined in FAR 2.101. Phoenics 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, Phoenics 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 Phoenics 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. Phoenics 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. Phoenics 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.

Terms and Conditions of Purchase

The purchase of products or services ("Products") by Phoenics Electronics Corporation and its divisions, subsidiaries, and affiliates ("Phoenics") are subject to these terms and conditions (“Agreement”) regardless of other or additional terms or conditions that conflict with or contradict this Agreement in any purchase order, non-negotiated document, quote, acknowledgement, or other communication. Preprinted terms and conditions on any document of supplier (“Supplier”) and/or Phoenics’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, such terms will govern and supersede these terms and conditions.

  1. ORDERS. Any order placed by Phoenics will be made with Phoenics’s standard purchase order form and submitted in writing by fax, or electronic means acceptable to Phoenics (“Order”). Supplier shall acknowledge Phoenics’s Orders in writing or via EDI within one (1) business day of receipt. Order acknowledgments shall contain Supplier’s promised ship date. All Orders will be deemed accepted by Supplier, per Phoenics’s requested ship date, if Supplier does not provide a written notice of rejection within three (3) business days of the receipt of the Order. Any partial fulfillment of an Order will also be deemed accepted by Supplier. Phoenics may cancel any Order having a clerical error within five (5) business days of placing such Order. Phoenics may change or cancel Orders or reschedule shipment dates for any Products ordered, provided that it notifies Supplier at least ten (10) business days prior to the latest confirmed ship date.
  2. APPOINTMENT. Supplier authorizes Phoenics to distribute or resell Products purchased under this Agreement worldwide through its Affiliates or through third party representatives appointed by Phoenics. “Affiliate” shall mean any person, partnership, joint venture, company, corporation or other form of enterprise, domestic or foreign, that directly or indirectly controls or owns, is controlled or owned by, or is under common control or ownership with Phoenics.
  3. PRICES. The price for any Products will be set forth in Phoenics’s Order. Phoenics shall not be liable for taxes with respect to any Order other than any sales tax which Supplier is required by law to collect from Phoenics.
    1. PRICE PROTECTION. In the event that Supplier decreases the price of any Product, Phoenics will be entitled to a credit equal to the difference between the net price paid by Phoenics, less any prior credits granted by Supplier, and the new decreased price for the Product multiplied by the quantity of such Product in Phoenics's inventory or in transit on the effective date of the reduction.
      1. Phoenics shall submit to Supplier, not later than sixty (60) business days after receiving notice of such price decrease, a Product inventory report as of the effective date, together with a debit memo reflecting the credit described above.
      2. Supplier shall be deemed to have verified the Product inventory report and debit memo unless Supplier contests the same in writing within sixty (60) business days after receiving such report and memo.
      3. Uncontested debit memos shall be credited to Phoenics's account as of the effective date of such price decrease.
    2. PRODUCTS SHIPPED AFTER PRICE DECREASE. Products shipped on or after the effective date of any price decrease will be shipped and invoiced at the price in effect at the time of shipment.
    3. PRODUCTS SHIPPED AFTER PRICE INCREASE. Products shipped after the effective date of any price increase will be shipped and invoiced at the price in effect at the time of Order placement.
  4. TERMS OF PAYMENT. Payment terms for Products purchased in Phoenics’s Order shall be net sixty (60) calendar days from date of invoice. Phoenics will also receive an additional 2% discount if payments are made within 10 calendar days of the invoice date. Phoenics has the right of offset against Supplier for programs, promotions, special pricing, rebates, and for any Phoenics returns as described herein.
  5. DELIVERY AND TITLE. Time is of the essence for delivery of Products. All Products will be delivered DDP Phoenics's destination (Incoterms 2010). Supplier agrees to deliver Products ordered by Phoenics to the location and within the time specified in Phoenics’s Order pursuant to the terms of this Agreement. Supplier may not ship before the promised ship date without Phoenics's prior written approval. Supplier agrees to pay premium freight when its delivery will miss the acknowledged ship date. Phoenics may designate the carrier to be used, and, in absence of such specification by Phoenics, Supplier shall select a carrier in its reasonable discretion. Supplier warrants the title to all Products sold to Phoenics and warrants that such Products are not subject to security interests, liens, or other encumbrances. Title and risk of loss shall pass at Phoenics’s destination. For the avoidance of any doubt, under no circumstance shall Phoenics be the importer of record for this engagement.
  6. ACCEPTANCE AND PRODUCT RETURN. All Products are subject to inspection and testing before acceptance. Phoenics will use reasonable efforts to give Supplier notice of any obvious defects, 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 Phoenics finds that the Products or any part thereof do not conform to the requirements of the Order, Supplier will, at Phoenics’s election either: replace such nonconforming Products, accept return for credit at the invoice price, or refund Phoenics’s purchase price for such nonconforming Products. Return of Products that are not in conformance with the Order (including DOA), overshipments, recalled products, and shipments rejected due to early or late delivery will be returned freight collect at Supplier’s risk and expense.
  7. DEFECTIVE PRODUCT. Notwithstanding any other provision of this Agreement, Phoenics may return for full credit of Phoenics’s cost of the Product (including, without limitation, cost of assembling, disassembling, transportation, and labor), less any prior credits issued by Supplier, any and all Products found to be defective upon delivery, or within a reasonable time thereafter; provided, however, that any such defective Products are returned to Supplier, freight collect, within ninety (90) business days of Phoenics’s discovery of the defect.
  8. END OF LIFE. If Supplier discontinues Products or makes Products obsolete, Supplier will notify Phoenics at least ninety (90) business days prior to the effective date of such change. Phoenics will then notify Supplier of the affected Products in its inventory for Supplier’s repurchase. All end of life Products will be subject to the return policy in Section 6 ACCEPTANCE AND PRODUCT RETURN. Furthermore, the Supplier will grant Phoenics the right of a life time buy upon request.
  9. WARRANTY.
    1. COMPLIANCE WITH LAW. Supplier guarantees Phoenics that the design, construction and quality of the Products 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.
    2. SUPPLIER’S MANUFACTURER’S WARRANTY. Supplier warrants the Products in accordance with the greater of the following: (i) the manufacturer’s standard warranty, (ii) the warranty that is publicly posted on manufacturer’s website, (iii) the warranty that is required by local law, or (iv) 24 months for those purchases originating from Asia or the European Union. Phoenics is authorized to pass this warranty through to Phoenics's customers and to end users. The warranty period as set forth in this Section 9 WARRANTY shall begin to run with respect to Phoenics’s customers and any end user upon delivery of the Product to the end user. Any Product to be returned under the terms of the warranty may be shipped to Supplier either from Phoenics or directly from Phoenics’s customers or end users. Supplier shall indemnify Phoenics for any liability related to a breach of warranty.
    3. NEW/UNUSED PRODUCT. Supplier warrants that the Products provided to Phoenics by the Supplier are new and unused.
    4. PRODUCT CONFORMANCE TO MANUFACTURER’S SPECIFICATIONS. Delivery of any Product by Supplier to Phoenics shall constitute a warranty by Supplier that the Product conforms to the manufacturer's specifications.
    5. CONFLICT MINERALS. Supplier represents and warrants that any gold, tantalum, tin or tungsten included in the Products provided to Phoenics by Supplier either (i) came from recycled or scrap sources or (ii) did not originate in the Democratic Republic of the Congo or an adjoining country. Supplier will provide information and supporting documents to this effect as reasonably requested by Phoenics.
  10. ORIGINAL MANUFACTURE 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 the Products; or if Supplier is not the OEM/OCM or a franchised or authorized distributor of the OEM/OCM, then Supplier 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.
  11. SERVICES PERFORMED ON SITE. Where applicable, any Supplier's equipment located on Phoenics’s site remains at all times the risk of the Supplier, which shall insure such equipment against all risk of loss or damage. Phoenics accepts no liability for any loss of or damage to Supplier’s equipment, however caused, including through Phoenics's negligence.
  12. INTELLECTUAL PROPERTY
    1. SUPPLIER INTELLECTUAL PROPERTY WARRANTY. Supplier warrants that any and all Product purchased hereunder, and the manufacture, sale, or use thereof, do not and will not violate or infringe upon any patent, copyright, trademark, trade secret, or other intellectual property right of any third party.
    2. INDEMNIFICATION. Supplier will indemnify, defend, and hold Phoenics, its successors, assigns, customers and end-users harmless against all losses, damages, costs and expenses (including reasonable attorneys’ fees and costs of establishing rights to indemnification and any settlement) based on any claims, demands, suits, proceedings and actions (“Claim”) in connection with any alleged infringement of any patent, copyright, trademark, trade secret or other intellectual property right of a third party, including any Claims that the Product, or the process, design, or methodology used to manufacture the Product, infringes any third party patent, copyright, trademark, trade secret or other intellectual property rights.
    3. PHOENICS’S OBLIGATION WITH RESPECT TO SUPPLIER’S IP INDEMNITY. Phoenics will provide Supplier with written notice of any such Claims, grant full authority to Supplier to defend and settle such Claims, and upon Supplier’s request, provide reasonable assistance and information, at Supplier’s cost and expense.
    4. SUPPLIER’S OBLIGATION IN EVENT OF IP CLAIM. If a Product becomes the subject of a Claim or Phoenics is enjoined from selling or using a Product, Supplier will:
      1. procure for Phoenics the right to sell and use the Product;
      2. provide Phoenics with replacement or modified Product that is non-infringing; or
      3. if Supplier is unable to provide the remedies above, refund the full purchase price for such Product.
    5. Intellectual Property Rights.
      1. Intellectual Property Rights (IPR) of either party or any third party used in performance of this Agreement shall remain the property of such party, and except as set forth in this section, nothing in this Agreement shall transfer or be deemed to transfer the intellectual property rights of either party or any third party.
      2. All documents, drawings, specifications, information, patents, patent applications, inventions, developments or processes or any copyrightable material originated and developed by Supplier specifically for Phoenics under this Agreement ("Work Product"), except for any Supplier IPR contained within such Work Product, shall be owned by Phoenics. Supplier hereby grants Phoenics a worldwide, non-exclusive, royalty-free, perpetual, without the right of sublicense, license to use Supplier's IPR, which is used in performing under this Agreement.
      3. All specifications provided by Phoenics, and all IPR in or arising out of them and from the Work Product, shall vest in and remain at all times the property of Phoenics. Such specifications may only be used by Supplier as necessary to perform under this Agreement.
      4. At the request of and at no additional cost to Phoenics, Supplier shall promptly do all such things and sign all documents necessary in the opinion of Phoenics (a) to vest all IPR in or arising out of any Work Product in Phoenics, absolutely and (b) to enable Phoenics to defend and enforce its IPR.
  13. GENERAL INDEMNIFICATION. Supplier will indemnify, defend and hold Phoenics 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 Phoenics’s customers or any third party (including employees of Phoenics 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) non-compliance with requirements hereunder or applicable laws, regulations, directives, or ordinances; or (e) damage to property arising out of, or in any way connected with, the Products or the sales, distribution, use or operation thereof.
  14. LIMITATION OF LIABILITY. PHOENICS WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY NATURE ARISING OUT OF OR RELATED TO THE ORDERS OR ANY TERMINATION, REJECTION, OR REVOCATION OF ACCEPTANCE OF THE ORDERS, INCLUDING WITHOUT LIMITATION, BUSINESS INTERRUPTION COSTS, REPROCUREMENT COSTS, LOSS OF PROFIT OR REVENUE, PROMOTIONAL OR MANUFACTURING EXPENSES, OVERHEAD, INJURY TO THE REPUTATION OF SUPPLIER, OR LOSS OF CUSTOMERS, EVEN IF PHOENICS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL PHOENICS’S LIABIITY EXCEED THE PRICE SET FORTH IN THE ORDER.
  15. USE OF TRADEMARKS/TRADENAMES. Phoenics is authorized to use Supplier’s trademarks, trade names and logos in connection with Phoenics’s sale of Products. Phoenics will have the right to pass on this right of usage to its reseller customers.
  16. CONFIDENTIALITY. If either party receives from the other party written information marked “Confidential” and/or “Proprietary”, the receiving party agrees not to use such information except in the performance of this Agreement, and to treat such information in the same manner as it treats its own confidential information. The obligation to keep information confidential shall not apply to any such information 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 an obligation of confidentiality; or is required to be disclosed by operation of law. Except as otherwise provided herein, the obligation not to disclose shall be for a period of one (1) year after the disclosure of the Confidential Information.
  17. EXPORT. Supplier acknowledges and agrees that Phoenics may export Products as allowed by the export control laws, regulations and 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 U.S. Foreign Corrupt Practices Act) and regulations in respect of import or export of Products.
  18. GLOBAL SUPPLY CHAIN SECURITY COMPLIANCE. Supplier warrants and represents to Phoenics as follows: (1) if eligible for Customs-Trade Partnership Against Terrorism (“C-TPAT”), or other comparable customs certification programs, Supplier will be certified and validated and Supplier will provide Phoenics with its Status Verification Interface (“SVI”) number(s), or other program identification information, to confirm the foregoing representation prior to shipment; (2) if not eligible for C-TPAT, or other comparable customs certification programs, Supplier fully understands the requirements for C-TPAT certification and will make all commercially reasonable efforts to comply to this certification program and assist Phoenics with maintaining its certification with this compliance request. Supplier will provide evidence of such compliance, including security certifications and results of internal security audits as Phoenics may reasonably require; (3) if Supplier’s status under this Subsection changes, Supplier will give prompt written notice to Phoenics; and (4) Supplier will comply with any prearranged visit Phoenics’s auditors may make to verify if Supplier’s procedures are in accordance with the criteria set forth by C-TPAT or other comparable customs compliance program.
  19. GOVERNMENT CONTRACTS. If Phoenics’s customers elect to sell Supplier’s Products (including supplies, software, documentations or services) to the U.S. Government or to a prime contractor selling to the U.S. Government, the Products are “commercial items” as that term is defined at 48 C.F.R. 2.101. Supplier will comply with provisions of FAR 52.244-6, Subcontracts 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 such terms are used in 48 C.F.R. 12.212, their rights will be consistent with those rights set forth in 48 C.F.R. 12.212 which generally limits their rights to the licenses customarily provided by Supplier to the public. Supplier will also comply with the provisions of DFARS 252.211.7003. Supplier will also provide the information necessary to assist Phoenics with analysis of DFARS 252.225-7014 (Alt 1), Preference for Domestic Specialty Metals (Berry Amendment) and other applicable federal statutes. Supplier will make a good faith effort to determine whether forced or indentured child labor was used to mine, produce or manufacture any Products furnished under this Agreement. Supplier may be required to certify that it is not aware of any such use of child labor.
  20. STATUTORY CONFORMANCE. With respect to the Products ordered under this Agreement, Supplier warrants and agrees that it has complied with all applicable federal, state and local laws, codes and requirements. Supplier especially warrants that all Products supplied to Phoenics comply with all applicable laws in the EU and transposed directives into national laws in the member states, e.g. environmental legislation such as substance regulation RoHS / REACH, technical conformity CE and waste management. Supplier shall undertake to comply and bear all costs for the compliance with the current and applicable EU legislation. Supplier agrees to indemnify and hold harmless Phoenics, its successors and assigns, and the customers of any of them, from all loss, damages, costs and expenses (including reasonable attorneys' fees and costs of establishing rights to indemnification) which may be incurred by non-compliance of Supplier with this paragraph. Phoenics reserves the right to return any non-compliant Product at the expense of Supplier.
  21. OZONE DEPLETING SUBSTANCES. Phoenics reserves the right to reject any Products containing or manufactured with substances identified as a Class I or Class II ozone depleting substances by the U.S. Environmental Protection Agency pursuant to Title VI of the Clean Air Act Amendments of 1990, and any amendments thereto, whether or not such Products shall be required to bear labeling.
  22. GENERAL
    1. This Agreement shall be governed, construed, and enforced in accordance with the laws of the country where the Phoenics entity that placed the Order (“Governing Country”) is located. The courts of the Governing Country shall have jurisdiction and venue over all controversies 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 will apply without reference to Arizona’s conflict of laws principles; and the state or federal courts of Arizona shall have jurisdiction and venue over all controversies arising out of, or relating to, this Agreement. The United Nations Convention for the International Sale of Goods shall not apply.
    2. Supplier may not assign this Agreement without the prior written consent of Phoenics, and Phoenics’s affiliates may perform Phoenics’s obligations under this Agreement. This Agreement is binding on successors and assigns.
    3. This Agreement can only be modified in writing signed by authorized representatives of both Phoenics and Supplier.
    4. Phoenics and Supplier are independent contractors and agree that this Agreement does not establish a joint venture, agency relationship, or partnership.
    5. Phoenics’s failure to object to any document, communication, or act of Supplier will not be deemed a waiver of any of these terms and conditions. Notwithstanding any other remedies provided in this Agreement, Phoenics retains all rights existing at law or equity, and Phoenics’s failure to affect cover does not bar it from any other remedy.
    6. The unenforceability of any of these terms or conditions will not affect the remainder of the terms or conditions.
    7. Phoenics is not liable for failure to fulfill its obligations under this Agreement due to causes beyond its reasonable control (for example: acts of nature, acts or omissions of the Supplier, operational disruptions, man-made or natural disasters, epidemic medical crises, strikes, criminal acts, delays in delivery or transportation, or inability to obtain labor or materials through its regular sources).
    8. Products, including software or other intellectual property, are subject to any applicable rights of third parties, such as patents, copyrights and/or user licenses, and Supplier will comply with such rights.
    9. Supplier and Phoenics will comply with applicable laws and regulations. Supplier shall collect, process, and transfer all personal data in connection with this Agreement in accordance with the applicable privacy laws and regulations.

Terms and Conditions of Service

Phoenics Services

Phoenics Electronics Corporation, Inc., and its divisions, subsidiaries, and affiliates ("Phoenics") will provide services ("Phoenics Services") and products associated with Phoenics Services ("Products"). Phoenics Services may (a) consist of a variety of services performed directly by Phoenics (or its subcontractor), such as performance of a task, assistance, support, access to resources that Phoenics makes available; or (b) creation of software or as otherwise defined on a Statement of Work ("SOW"). For avoidance of doubt, "Phoenics Services" excludes third-party services ("Third Party Services"), which may include but shall not be limited to software and other offerings provided solely by a third party. "Phoenics Services" as used in these terms and conditions does not include Third Party Services. Except for mutually agreed upon terms such as in an SOW or change order, Phoenics's provision of Phoenics Services, Third Party Services and Products are subject to only these terms and conditions of sale for Services ("Agreement"), regardless of any other additional terms or conditions that conflict with or contradict this Agreement in any purchase order, document, or other communication ("Order"), including any preprinted terms and conditions on any document of customer ("Customer"). Phoenics's failure to object to such conflicting or additional terms will not change or add to the terms of this Agreement.

  1. ORDERS.
    Quotes from Phoenics are invitations to tender and are subject to change at any time without notice. All Customer Orders are subject to acceptance by Phoenics. Contracts between Customer and Phoenics are formed upon Phoenics's written acceptance or execution of SOW or Customer's Order, which shall be governed only by the terms and conditions of this Agreement and SOW, if any. In the event of conflicting terms between the terms and conditions of this Agreement and SOW, the terms and conditions of this Agreement will control.
  2. CUSTOMER RESPONSIBILITIES.
    Phoenics will rely on the specific instruction and information provided by Customer in the applicable SOW. The scope of the work to be performed will be tentative until confirmed in writing by both parties in the applicable SOW. Phoenics is not responsible for any default or delays caused by Customer's failure to confirm applicable SOW in a timely manner, to provide accurate and timely instructions, comprehensive information, or necessary access to facilities or application environment.
  3. PRICES.
    Except as otherwise agreed in applicable SOW, prices are estimates and are subject to change at any time. Phoenics will use reasonable commercial efforts to notify Customer if estimates provided to Customer in writing will be exceeded. In such an event, (i) Customer may terminate the Services and pay only for the work performed through the effective date of termination, even though such amount may be less than or in excess of the estimate, or (ii) if Customer makes no such termination request, Phoenics will continue to perform services according to the existing work authorization, including all fees and expenses which may exceed the initial or revised cost estimate. Prices are for Products, Phoenics Services or Third Party Services only and do not include taxes, or other charges or fees, such as out of pocket expenses, permits, licenses, certificates, customs declarations and registration (collectively, "Additional Fees"). Customer is responsible for any Additional Fees as well as obtaining such licenses, permits or permissions on its own accord that may be needed for the performance of the Phoenics Services.
  4. TERMS OF PAYMENT.
    Payment of the total invoice amount, without offset or deduction, is due 30 days from the invoice date or as otherwise indicated and approved in writing by the parties in the SOW. On any past due invoice, Phoenics may charge (i) interest from the payment due date to the date of payment at 18% per annum, plus reasonable attorneys' fees and collection costs; or (ii) the maximum amount that is allowed under the applicable law if Phoenics's interest rate is deemed invalid. At any time, Phoenics may change the terms of Customer's credit, require financial data from Customer for verification of Customer's creditworthiness, require a bank guarantee or other security, or suspend any outstanding Orders of Customer. Phoenics may apply payments to any of Customer's accounts. If Customer defaults on any payment under this Agreement, Phoenics will provide notice to Customer and give Customer a reasonable time to cure. If Customer fails to provide payment within the reasonable time to cure period, Phoenics may postpone or cancel any pending or current Phoenics Services or Third Party Services to be performed, being performed or in any outstanding SOW, and declare all outstanding invoices due and payable immediately.
  5. OWNERSHIP OF DELIVERABLES AND DELIVERY.
    If Phoenics is providing only Services and Deliverables: Upon payment in full, Phoenics will transfer ownership of tangible product as a result of the Phoenics Services ("Deliverable") or Phoenics Service to the Customer.

    If Phoenics is providing Services, Deliverables and Products: All Products or Deliverables are FCA Phoenics’s Warehouse (INCOTERMS 2010). Phoenics will transfer title of Product upon shipment. Phoenics will transfer ownership of Deliverables or Phoenics Services to the Customer upon payment in full.

    Phoenics retains all rights, title and interest in any pre-existing materials and intellectual property that is owned by Phoenics. Phoenics will provide to the Customer a limited and revocable license to use the pre-existing intellectual property utilized in providing Phoenics Services or provided in a Deliverable at a fee to be mutually agreed. Phoenics Services and any Products, Deliverables, and Third Party Services, including software or other intellectual property, may be subject to any applicable rights of third parties, such as patents, copyrights or user licenses, and Customer will comply with such rights.
  6. PHOENICS'S LIMITED WARRANTY.
    Phoenics warrants that Phoenics Services will be performed in a reasonable and workmanlike manner. To the extent permitted by law, Phoenics makes no other warranty, express or implied, such as warranty of merchantability, fitness for purpose or non-infringement. In particular, Phoenics does not warrant that software provided as part of the Phoenics Services is uninterrupted or error-free. Customer's sole remedies for breach of this Phoenics Services warranty are, at Phoenics's sole discretion, to: (i) re-perform the Phoenics Services, or (ii) refund the portion of the fees paid by Customer that relate to the non-conforming Phoenics Services. Phoenics will have no obligation with respect to any warranty claim if the claim is the result of (i) damage caused by unauthorized modification by Customer or any third party not performing under the direction of Phoenics, (ii) any abuse or misuse by Customer or any third party not performing under the direction of Phoenics, or (iii) damage caused by disaster such as fire, flood, wind or lightning. Phoenics will pass through to Customer any transferable Third Party Services warranties and remedies provided by the third party service provider.
  7. LIMITATION OF LIABILITY.To the extent permitted by law, neither Phoenics nor any of Phoenics's successors or assigns shall be liable for and Customer is not entitled to any indirect, special, incidental, consequential, punitive or exemplary damages of any nature including without limitation removal, reinstallation costs, reprocurement costs, costs of cover, loss of use, loss of profit or revenue, business interruption, loss of data, promotional or manufacturing expenses, overhead, injury to reputation or loss of customers even if Phoenics has been advised of the possibility of such damages. To the extent permitted by applicable law, Customer's total recovery from Phoenics for any direct damages will not exceed the total amount paid by Customer for Phoenics Services or Third Party Services performed under the relevant SOW during the twelve month period immediately preceding the event giving rise to the liability. Phoenics will not be liable for any loss or damage arising out of significant changes to, or errors, omissions or inaccuracies in the information provided by Customer. Phoenics is also not liable for any claims based on Phoenics's compliance with Customer's designs, specifications, or instructions.
  8. FORCES BEYOND PHOENICS'S CONTROL.
    Phoenics is not liable for failure to fulfill its obligations under this Agreement due to causes beyond its reasonable control (for example: acts of nature, acts or omissions of Customer, operational disruptions, man-made or natural disasters, epidemic medical crises, materials shortages, strikes, criminal acts, delays in delivery or transportation, or inability to obtain labor or materials through its regular sources).
  9. NON-SOLICITATION.
    During the term of the SOW or Agreement and for one year from termination or expiration of this Agreement, Customer shall not, without the prior written consent of Phoenics, directly or indirectly offer employment or hire any current or former employee, subcontractor or consultant of Phoenics who was directly involved in the performance of this Agreement. This provision does not restrict the right of Customer to solicit or recruit generally in the media and does not prohibit Customer from hiring an employee of Phoenics who answers any advertisement or who otherwise voluntarily applies for hire without having been initially personally solicited or recruited by Customer or Customer's agents.
  10. EXPORT/IMPORT.
    Certain Products, Phoenics Services, Third Party Services, Deliverables and related technology and documentation sold by Phoenics are subject to export control laws, regulations and orders of the United States, the European Union, or other countries ("Export Laws"). Customer shall comply with such Export Laws and obtain any license, permit or authorization required to transfer, sell, export, re-export or import the Products, Phoenics Services, Third Party Services, Deliverables and related technology and documentation.

    Customer will not export or re-export the Products, Phoenics Services, Third Party Services, or Deliverables and related technology and documentation to any country or entity to which such export or re-export is prohibited, including any country or entity under sanction or embargoes administered by the United Nations, U.S. Department of Treasury, U.S. Department of Commerce or U.S. Department of State. Customer will not use the Products, Phoenics Services, Third Party Services, Deliverables, and related technology and documentation in relation to nuclear, biological or chemical weapons or missile systems capable of delivering same, or in the development of any weapons of mass destruction.
  11. GOVERNMENT CONTRACTS.
    Phoenics is a distributor of "Commercial Items" as defined in FAR 2.101 which includes installation services, maintenance services, repair services, training services and other services procured from Phoenics for support of a commercial item or services sold in the commercial marketplace. Therefore, Phoenics agrees only to the clauses in the Federal Acquisition Regulation ("FAR") and Defense Federal Acquisition Regulation ("DFAR") that are required to be inserted in subcontracts for commercial items as set forth in FAR 52.244-6(c)(1), FAR 52.212-5(e)(1), and DFAR 252.244-7000 if it is a subcontract under a Department of Defense prime contract. In accordance with FAR 12.211, Customer will receive only those rights in technical data customarily provided to Phoenics by the manufacturers or provided by Phoenics to other commercial customers. These rights will not be interpreted as providing to Customer unlimited rights in data, software, or intellectual property rights provided by the manufacturers or any other third party or for Phoenics's commercial software. Phoenics specifically rejects the flow down of any federal requirements which are inapplicable to services.
  12. ELECTRONIC ORDERS.
    In the event that any part of the provision of Phoenics Services and Third Party Services utilizes electronic data interchange, Customer's internal portal or third party portal, or any other electronic means ("Electronic Purchase Order"), this Agreement will continue to apply to the provision of Phoenics Services and Third Party Services between Customer and Phoenics. Customer's acceptance of Phoenics's acknowledgment request or Phoenics's specification of details with respect to Electronic Purchase Orders via writing, email or other electronic data interchange shall be binding on Customer.
  13. GENERAL.
    1. This Agreement shall be governed, construed, and enforced in accordance with the laws of the country where the Phoenics entity that accepted Customer's Order ("Governing Country") is located. The courts of the Governing Country shall have jurisdiction and venue over all controversies 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 will apply without reference to Arizona's conflict of laws principles. The United Nations Convention for the International Sale of Goods shall not apply.
    2. The prevailing party in any legal proceedings brought by or against the other party to enforce any provision or term of this Agreement shall be entitled to recover against the non-prevailing party the reasonable attorneys' fees, court costs and other expenses incurred by the prevailing party. No person who is not a party to this Agreement shall be entitled to enforce or take the benefit of any of its terms under the Contracts (Rights of Third Parties) Act of 1999 (UK) or under any other similar applicable law, statute or regulation.
    3. The Customer warrants that it has obtained all necessary approvals for Phoenics to process personal data. In addition the Customer warrants that the content, use or processing of the data is not illegal and does not infringe any rights of third parties or any statutory or regulatory provisions. The Customer shall protect Phoenics and hold Phoenics harmless against any legal claim which may result from a breach of the above warranties.
    4. Customer may not assign this Agreement without the prior written consent of Phoenics, and Phoenics's affiliates may perform Phoenics's obligations under this Agreement. This Agreement is binding on successors and assigns.
    5. Phoenics reserves the right to subcontract provision of Phoenics Services or Third Party Services to a third party organization to provide Phoenics Services or Third Party Services to Customer. Any such subcontract shall not relieve Phoenics of any of its obligations under this Agreement.
    6. This Agreement can only be modified in writing signed by authorized representatives of both Phoenics and Customer.
    7. Phoenics and Customer are independent contractors and agree that this Agreement does not establish a joint venture, agency relationship, or partnership.
    8. Phoenics's failure to object to any document, communication, or act of Customer will not be deemed a waiver of any of these terms and conditions.
    9. The unenforceability of any of these terms or conditions will not affect the remainder of the terms or conditions.
    10. To the extent that electronic signatures are available, the parties agree to use electronic signatures and agree that any electronic signatures will be legally valid, effective, and enforceable.
    11. Phoenics and Customer will maintain in confidence and safeguard all Confidential Information. "Confidential Information" means any information that is marked or otherwise identified as confidential or proprietary at the time of disclosure, or any information, by its nature, that should be deemed confidential and does not include information that is in the public domain. Each party agrees to use any Confidential Information only for the purpose of conducting business with each other under this Agreement. Customer or Phoenics may seek interim or temporary injunctive relief in any court of appropriate jurisdiction with respect to any alleged breach of each party's intellectual property or proprietary rights.
    12. Customer and Phoenics 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 U.S. Foreign Corrupt Practices Act and U.K. Bribery Act) and regulations in respect of import or export of Services.
    13. Phoenics may translate the Agreement into any language for ease of comprehension but, in the event of any conflict or inconsistency between the Agreement and the translated version, the English version shall prevail.