Azure Sphere MT360 Module with Chip Antenna

The sale of Azure Sphere MT360 Module with Chip Antenna (“Product”) is subject to the terms and conditions of this Avnet Sales Agreement including any applicable attachments (collectively “Agreement”) which is the sole and complete agreement between the purchaser of the Product (“Customer”) and Avnet, Inc. and its subsidiaries and affiliates (“Avnet”) regarding such sale.  Any additional or different terms in any order or communication from Customer shall not be binding on Avnet unless signed by an authorized representative of Avnet.  This Agreement shall apply to all purchase orders issued by Customer to Avnet unless Customer and Avnet agree otherwise.  A Product is subject to this Agreement when Avnet accepts Customer’s order by shipping the Product or making the Product available for pickup by Customer.  Confirmation of receipt of Customer’s order shall not constitute acceptance of Customer’s order.  

1. ORDERS. Unless otherwise stated on the quote, Avnet quotes are invitations to tender and are subject to change at any time without notice. All orders are subject to acceptance by Avnet. Contracts between Customer and Avnet are formed upon Avnet's written acceptance, Electronic Data Interchange (“EDI”) acknowledgment, or execution of Customer's order. All orders for Products that Avnet identifies as non-standard or "NCNR" are non-cancelable and non-returnable. Avnet may identify a Product as non-standard or "NCNR" by various means including quotes, Product lists, attachments, or exhibits. Customer may not change, cancel, or reschedule orders for Products without Avnet's consent. Avnet reserves the right to allocate the sale of Products among its customers. If Avnet makes an error in pricing information, Avnet may nevertheless refuse or cancel an order placed for a Product quoted at such price, even if Avnet has confirmed the receipt of Customer’s order or charged Customer’s credit or debit card.  If Avnet has charged Customer’s credit or debit card, Avnet will promptly issue a credit to Customer’s credit or debit card account in the amount of the charge.

2.  PRICES.  Unless otherwise stated on Avnet's proposal, quote or invoice: (i) prices are for Products only and do not include taxes, freight, duties, tariffs or any other charges (collectively, "Additional Fees"); and (ii) Customer shall pay any Additional Fees. Prices may be changed by Avnet for any reason prior to delivery, including supplier price increase, change in exchange rate or quoting error.   

3.  TERMS OF PAYMENT.  Payment is due as stated on Avnet’s invoice without offset or any deduction for withholding taxes or otherwise. On any past due invoice, Avnet may charge interest from the payment due date to the date of payment at 18% per annum or the maximum amount allowed by applicable law, plus reasonable attorneys’ fees and collection costs, with a minimum fee of (forty) 40 Euros for sales in France. Avnet may change the terms of Customer's credit at any time. Avnet may apply payments to any of Customer's accounts. If Customer defaults on any payment, Avnet may reschedule or cancel any outstanding delivery or order and declare all outstanding invoices due and payable immediately. Unless otherwise provided by applicable law, Customer credits provided by Avnet will expire if unused within twelve (12) months from date of issuance.

4. DELIVERY. Unless otherwise stated by Avnet in writing, all deliveries by Avnet from within the European Union are CPT Customer's delivery location, and all deliveries by Avnet from outside the European Union are FCA Avnet's warehouse or, for drop shipments, FCA the manufacturer's warehouse (INCOTERMS 2010). Avnet's delivery dates are estimates only and subject to Avnet's timely receipt of supplies. Avnet is not liable for delays in delivery or for partial or early deliveries. Customer shall accept all deliveries and may not cancel orders based on delayed delivery, whether in whole or in part.

5. TITLE.  For sales from outside the European Union or Australia, title shall pass to Customer upon delivery of the Product to the carrier. For sales from within the European Union or Australia, as a form of payment security, title shall pass to Customer upon payment in full for the Product by Customer. In case of onward sale, Customer assigns all rights in the related receivables to Avnet until Customer has made payment in full. Once a Product is processed or combined with other items ("Processed Product"), Avnet's retained title transfers to a share in the title in the Processed Product reflecting the value of the Product relative to the value of the Processed Product.

6.  SOFTWARE.  Software is not sold or licensed to Customer under this Agreement.  Any software is subject to the terms of a separate license agreement.  Software embedded in or bundled with a Product must be used solely with the device for which it was intended and may not be transferred separately.  

7.  LIMITED WARRANTY.  Avnet warrants that each Product purchased by Customer for Customer’s own use is free from defects in materials and workmanship under normal use for a period of twelve (12) months from the date of delivery by Avnet.  This warranty shall not apply to any Product which has been subjected to misuse, accident, unauthorized modification; operation in an unsuitable environment; or unauthorized maintenance.  If a defect in material or workmanship is discovered during the warranty period, Avnet shall repair the defect. If Avnet determines that it is unable to repair the Product, Avnet will replace it with a product that is functionally equivalent. If Avnet determines that it is unable to either repair or replace the Product, Customer’s sole remedy under this Limited Warranty is to return the Product to Avnet for a refund of the purchase price. When warranty service involves the replacement of a Product or part, the replaced Product or part becomes Avnet property. Only unaltered Products and parts are eligible for replacement.  The replacement Product or part shall be warranted for the balance of the period remaining on the original Product.  In no event shall this warranty include liability for uninterrupted or error-free operation, correction of all defects; or loss or damage to data. This warranty shall be voided by the removal or alteration of identification labels on a Product or its parts.  THIS LIMITED WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.  ALL SOFTWARE AND SERVICES ARE PROVIDED AS IS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND.

8. INTELLECTUAL PROPERTY INFRINGEMENT PROTECTION.  If a third party claims that a Product sold to Customer by Avnet under this Agreement infringes that party’s patent or copyright, Avnet will defend Customer against that claim at Avnet’s expense, including attorneys’ fees, and pay all costs, penalties, damages, and attorney’s fees that a court finally awards against Customer or that are included in a settlement approved by Avnet, provided that Customer: (i) promptly notifies Avnet in writing of the claim; (ii) allows Avnet to control the defense of the claim; and (iii) cooperates with Avnet in the defense and any related settlement negotiations.  The foregoing is Avnet’s entire obligation to Customer and Customer’s sole and exclusive remedy regarding any claim of infringement.  If such a claim is made or appears likely to be made, Customer shall permit Avnet to enable Customer to continue to use the Product; to modify it; or to replace it with a product that is at least functionally equivalent.  If, in its sole discretion, Avnet determines that none of these alternatives is reasonably available, at Avnet’s request, Customer shall return the Product to Avnet and receive a credit equal to the net book value of the Product according to generally accepted accounting principles.  Avnet shall have no obligation regarding any claim based upon: (i) anything Customer provides which is incorporated into, or combined with a Product; (ii) Customer’s unauthorized modification of a Product; (iii) the combination, operation, or use of a Product with any product not provided by Avnet as a system, or the combination, operation, or use of a Product with any product, data, apparatus or business method that Avnet did not provide; or (iv) Avnet’s compliance with Customer’s specifications or requirements.

9. PRODUCT RETURN. Customer may return a Product to Avnet only with a return material authorization (“RMA”) number issued by Avnet.

(A) Returns for Visual Defect: Customer must notify Avnet in writing of any damage to the outer packaging or the Product, shortage, or other discrepancy (collectively “Visual Defect”) within three (3) business days after receipt of the shipment; otherwise, Customer is deemed to have accepted the Product.

(B) Returns for Product Warranty: Customer must notify Avnet in writing stating the specific Product defect within the warranty period.

Avnet will only issue an RMA if the defect (either for Visual Defect or for Product Warranty) was caused solely by Avnet and only if Customer meets the notice requirement. Avnet will not issue an RMA for damages, shortages, or other discrepancies created by Customer, the carrier or freight forwarder, or any other third party. Upon receiving the RMA, Customer must return the Product to Avnet in compliance with Avnet’s instructions in the RMA. Avnet may assess all Products returned by Customer pursuant to an RMA. If Avnet determines a Product is not eligible for return, Avnet will return such Product to Customer on freight collect basis or hold such Product for Customer’s collection at Customer’s expense.

10. LIMITATION OF LIABILITY. 

10.1  In any action under or related to this Agreement, Avnet shall not be liable to Customer for any of the following whether informed of their possibility or not; notwithstanding the failure of essential purpose of any remedy in this Agreement; and whether arising in contract, tort, (including negligence), strict liability or otherwise: (i) special, incidental, indirect, punitive or consequential damages; or (ii) loss of profits, business, revenue, goodwill, data, information or anticipated savings. 

10.2 The maximum cumulative liability of Avnet for all actions arising out of or related to this Agreement, regardless of the form of the action or the theory of recovery, shall be limited to the purchase price paid or payable by Customer to Avnet under this Agreement.

10.3 This Section 10 shall survive the termination or expiration of this Agreement.

11. USE OF PRODUCT. Products are not authorized for use in life support systems, human implantation, nuclear facilities or any other application where a Product failure could lead to loss of life or property damage. If Customer uses or sells Products for use in such applications or fails to comply with the Product specifications, Customer acknowledges that any such use, sale, or non-compliance is at Customer's sole risk. Customer shall indemnify, defend and hold Avnet, its directors, officers, employees, affiliates and subsidiaries, harmless from and against any and all claims, actions, proceedings, costs, losses and damages arising out of, related to, or based on: (i) Avnet's compliance with Customer's designs, specifications, or instructions: (ii) modification of any Product by anyone other than Avnet; or (iii) use of Product in combination with other product or in violation of this clause.

12. EXPORT/IMPORT. Products and related technology sold by Avnet may subject to export control regulations of the United States, the European Union, and/or other countries (collectively "Export Laws"). Customer shall comply with such Export Laws and obtain any license or permit required to transfer, export, re-export or import Products and related technology. Customer shall not export or re-export 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 Product 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. DATA PROTECTION.  Customer represents and warrants to Avnet that: (i) it has, and shall cause any third party which provides personal data to Avnet, the right to share personal data with Avnet in compliance with applicable data protection laws as necessary for Avnet to process and transfer the data overseas as contemplated by this Agreement; and (ii) Avnet’s processing of the shared personal data shall not cause Avnet to violate any data protection laws applicable to such shared personal data. Customer shall indemnify, defend and hold Avnet, its directors, officers, employees, affiliates and subsidiaries, harmless from and against any and all claims, actions, proceedings, fines, costs, losses and damages arising out of, related to, or based on Customer’s breach of this Section 13.

14.  DATA COLLECTION.  Avnet and its affiliates may store, use and process contact information and other information about Customer, including names, phone numbers, addresses, and e-mail addresses, necessary to perform under this Agreement, including but not limited to warranty service.  Such information will be processed and used in connection with this Agreement and the Products.  It may be transferred by Avnet to any country where Avnet does business; and may be provided to entities acting on Avnet’s behalf in relation to this Agreement and the Products.  Avnet may also disclose such information where required by law.

15.  U.S. GOVERNMENT CONTRACTS. Products are "Commercial Items" as defined in Section 2.101 of the Federal Acquisition Regulation ("FAR"). Avnet does not intend to sell Product to the U.S. Government or a higher-tier contractor that fail to meet the “commercial item” definition in FAR 2.101. Accordingly, Avnet agrees only to the clauses in the FAR and agency FAR supplements (as applicable based on the U.S. Government customer) that are expressly required to be included in a subcontract for commercial items as set forth in FAR 52.244-6(c)(1) or an agency supplement. In accordance with FAR 12.211, Customer will receive only those rights in technical data customarily provided by a product manufacturer. Nothing herein shall be interpreted as providing to Customer unlimited rights in data, software, or intellectual property rights by Avnet or any third party. Avnet specifically rejects the flow down of the requirements of the: (i) Trade Agreements Act, FAR 52.225-5 or DFARS 252.225-7021; and (ii) the Buy American Act, FAR 52.225-1 or DFARS 252.225-7001. Avnet does not 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 Product are compliant.

16. GENERAL.

1. This Agreement shall be governed, construed, and enforced in accordance with the laws of the country where the Avnet entity that accepted Customer's order ("Governing Country") is located without reference to its conflict of laws principles. If the Governing Country is the United States of America, the laws and courts of the State of Arizona shall apply. The United Nations Convention for the International Sale of Goods shall not apply to this Agreement. The courts of the Governing Country shall have jurisdiction and venue over all disputes arising out of, or relating to, this Agreement.
2. Customer may not assign this Agreement without Avnet's prior written consent. Avnet's affiliates may perform Avnet'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 enforceability of any other terms or conditions.
4. Customer shall comply with all applicable laws, including anticorruption laws such as U.S. Foreign Corrupt Practices Act and UK Bribery Act.
5. The parties agree that electronic signatures may be used and shall be valid, effective, and enforceable for all purposes related to this Agreement.
6. Product information, advertisements, statements or advice related to a Product’s specifications, features, export/import control classifications, uses or conformance with legal or other requirements is provided by Avnet.
7. Neither party shall be deemed to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by the waiving party. A waiver of a right or remedy on one occasion shall not be construed as a waiver on any other occasion.
8. If any part of the purchase and sale of a Product, including Customer’s NCNR acknowledgment or demand forecast, uses EDI, Customer’s internal portal, third party portal, or any other electronic means, this Agreement shall continue to apply to the purchase and sale of Product between Customer and Avnet. Customer’s acceptance of Avnet’s acknowledgment request or Avnet’s specification of details with respect to orders via writing, email, or EDI is binding on Customer.
9. Nothing in this Agreement shall create any right enforceable by any party not a party to this Agreement.
10. Except for payment obligations, neither party shall be liable to the other for any failure or delay in the performance of its obligations, to the extent such failure or delay is caused by fire, flood, earthquakes, other elements of nature; acts of war; terrorism, riots, civil disorders, rebellions or revolutions; epidemics, communication line or power failures; governmental laws, court orders or regulations; or any other cause beyond its reasonable control. 
11. This Agreement and the License Terms for Azure Sphere OS and Azure Sphere Security Service (“License Terms”) are the sole and complete understanding of the parties regarding the subject matter hereof, superseding all prior or contemporaneous agreements and understandings, whether written or oral. In the event of conflicting terms, the order of precedence is as follows: (i) the License Terms; then, (ii) this Agreement.