1. Applicability. These Terms and Conditions and the terms set forth on the “Purchase Order” set forth above (collectively, this “Agreement”) are the only terms which govern the purchase of goods and products under the Purchase Order (the “Goods”) by Buyer from Seller (as each Buyer and Seller are named in the Purchase Order). This Agreement constitutes the sole and entire agreement of the parties with respect to the Agreement, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the Agreement. This Agreement prevails over any of Seller’s general terms and conditions of sale. Execution of the Purchase Order or fulfilment of goods identified therein by Seller constitutes acceptance of the Agreement. In the event of any conflict between these Terms and Conditions and the terms set forth on the Purchase Order, the terms of the Purchase Order shall govern. This Agreement applies to any repaired or replacement Goods provided by Seller hereunder. Buyer is not obligated to any minimum purchase or future purchase obligations under this Agreement.
  2. Delivery Date. Seller shall deliver the Goods in the quantities and on the date(s) specified in this Purchase Order or as otherwise agreed in writing by the parties (the “Delivery Date”). Timely delivery of the Goods is of the essence. If Seller fails to deliver the Goods in full on the Delivery Date, Buyer may terminate the Agreement immediately by providing written notice to Seller and Seller shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller’s failure to deliver the Goods on the Delivery Date.
  3. Delivery Location. All Goods shall be delivered to the address specified in the Purchase Order (the “Delivery Location”) during Buyer’s normal business hours or as otherwise instructed by Buyer.
  4. Title and Risk of Loss. Title passes to Buyer upon delivery of the Goods to the Delivery Location. Seller bears all risk of loss or damage to the Goods until delivery of the Goods to the Delivery Location.
  5. Packaging. All goods shall be packed for shipment according to Buyer’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition.
  6. Amendment and Modification. No change to this Agreement is binding upon Buyer unless it is in writing, specifically states that it amends this Agreement and is signed by an authorized representative of Buyer.
  7. Inspection and Rejection of Nonconforming Goods. Unless otherwise stated in a Purchase Order, the Buyer has thirty (30) days from date of receipt of the Goods to inspect and test the Goods on or after the Delivery Date. Buyer, at its sole option, may inspect and test all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective. If Buyer rejects any portion of the Goods, Buyer has the right, effective upon written notice to Seller, to: (a) rescind the Agreement in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods. If Buyer requires replacement of the Goods, Seller shall, at its expense, promptly replace the nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Goods. If Seller fails to timely deliver replacement Goods, Buyer may replace them with goods from a third party and charge Seller the cost thereof and terminate this Agreement for cause pursuant to Section 16.
  8. Price. The price of the Goods is the price stated in the Purchase Order (the “Price”). If no price is included in the Purchase Order. Unless otherwise specified in the Agreement, the Price includes all packaging, transportation costs to the Delivery Location, insurance, customs duties, and fees and applicable taxes, including, but not limited to, all sales, use or excise taxes. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Buyer.
  9. Most Favored Customer. Seller represents and warrants that the price for the Goods is the lowest price charged by Seller to any of its external buyers for similar volumes of similar Goods. If Seller charges any other buyer a lower price, Seller must apply that price to all Goods under this Agreement. If Seller fails to meet the lower price, Buyer, at its option, may terminate this Agreement without liability pursuant to Section 16.
  10. Setoff. Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Buyer to Seller.
  11. Warranties.
    (a) Unless otherwise agreed in a Purchase Order, Seller warrants to Buyer that for a period of twelve (12) months from the Delivery Date, all Goods will: (a) be free from any defects in workmanship, material and design; (b) conform to Seller’s applicable specifications, drawings, and designs, samples applicant for the Goods, or other requirements as specified by Buyer; (c) be fit for their intended purpose and operate as intended; (d) be merchantable; (e) be free and clear of all liens, security interests or other encumbrances; and (f) not infringe or misappropriate any third party’s patent or other intellectual property rights. These warranties survive any delivery, inspection, acceptance or payment of or for the Goods by Buyer. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer’s discovery of the noncompliance of the Goods with the foregoing warranties. If Buyer gives Seller notice of noncompliance with this Section, Seller shall, at its own cost and expense, promptly replace or repair the defective or nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods to Seller and the delivery of repaired or replacement Goods to Buyer.

    (b) To the extent the Goods are regulated under the U.S. Department of Defense (“DoD”) Federal Acquisition Regulations Supplement (“DFARS”) regulations, Seller warrants that it maintains acceptable counterfeit electronic part detection and avoidance systems, and that any “covered defense information,” as contemplated under the DFARS regulations, Seller is in compliance with all such applicable regulations for the Goods. Failure to maintain an acceptable counterfeit electronic part detection and avoidance system and compliance, as applicable, may result in disapproval of the Goods by Buyer and/or withholding of payments for any counterfeit electronic parts or suspect counterfeit electronic parts, and the cost of rework or corrective action that may be required to remedy the use or inclusion of such parts.

  12. Indemnification.
    (a) General Indemnification. Seller shall defend, indemnify and hold harmless Buyer and Buyer’s subsidiaries, affiliates, successors or assigns, and their respective directors, officers, shareholders and employees and Buyer’s customers (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with the products purchased from Seller or Seller’s negligence, willful misconduct or breach of the Terms. Seller shall not enter into any settlement without Buyer’s or Indemnitee’s prior written consent.

    (b) Intellectual Property Indemnification. Seller shall, at its expense, defend, indemnify and hold harmless Buyer and any Indemnitee against any and all Losses arising out of or in connection with any claim that Buyer’s or Indemnitee’s use or possession of the Goods infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. In no event shall Seller enter into any settlement without Buyer’s or Indemnitee’s prior written consent.

  13. Intellectual Property. Seller grants Buyer a royalty-free, worldwide, transferable, sub-licenseable, irrevocable, perpetual license to use, modify, and enhance the intellectual property, if any, associated with the Goods. Any modifications or enhancements to the Goods are owned by Buyer and protected by intellectual property rights law. Buyer does not transfer any ownership rights in any modification or enhancement to the Goods to Seller. As between the Parties, it is agreed and understood that to the extent Buyer contributes any expertise, feedback, or consultation with respect to modification or improvement of the Goods prior to shipment for purposes of customizing the Goods, Buyer will be the sole owner of such Contributions and all intellectual property rights therein.

  14. Insurance. During the term of the Agreement and for a period of twelve (12) months thereafter, Seller shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, (a) comprehensive general liability insurance in an amount of at least two million dollars ($2,000,000) combined single limit for bodily injury and property damage and a two million dollar ($2,000,000) annual aggregate; (b) comprehensive automobile liability insurance in an amount of at least two million dollars ($2,000,000) combined single limit for bodily injury and property damage and a two million dollar ($2,000,000) annual aggregate; (c) workers’ compensation insurance in accordance with such laws as may be applicable to the work to be performed hereunder; (d) employer’s liability insurance in an amount of at least one million dollar ($1,000,000) combined single limit for bodily injury and property damage and a two million dollar ($2,000,000) annual aggregate; and (e) if an aviation good or service, aviation liability insurance in an amount of at least two million dollar ($2,000,000) limit of liability per occurrence and in the aggregate, with financially sound and reputable insurers. Upon Buyer’s request, Seller shall provide Buyer with a certificate of insurance from Seller’s insurer evidencing the insurance coverage specified in this Agreement. Seller shall provide Buyer with ten (10) days’ advance written notice in the event of a cancellation or material change in Seller’s insurance policy. Except where prohibited by law, Seller shall require its insurer to waive all rights of subrogation against Buyer’s insurers and Buyer or the Indemnitees.

  15. Compliance with Law. Seller is in compliance with and shall comply with all applicable laws, regulations and ordinances. Seller has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Agreement.

  16. Termination. Buyer may terminate this Agreement, in whole or in part, at any time with or without cause for undelivered Goods on ten (10) days’ prior written notice to Seller. In addition to any remedies that may be provided under these Terms, Buyer may terminate this Agreement with immediate effect upon written notice to the Seller, either before or after the acceptance of the Goods, if Seller has not performed or complied with any of these Terms, in whole or in part. If the Seller becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then the Buyer may terminate this Agreement upon written notice to Seller. If Buyer terminates the Agreement for any reason, Seller’s sole and exclusive remedy is payment for the Goods received and accepted by Buyer prior to the termination.

  17. Waiver. No waiver by any party of any of the provisions of the Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

  18. Confidential Information. All non-public, confidential or proprietary information of the Buyer, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Buyer to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the Agreement is confidential, solely for the use of performing the Agreement and may not be disclosed or copied unless authorized by Buyer in writing. Upon Buyer’s request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Seller at the time of disclosure; or (c) rightfully obtained by the Seller on a non-confidential basis from a third party.

  19. Force Majeure. Neither party shall be liable to the other for any delay or failure in performing its obligations under the Agreement to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party’s fault or negligence, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable (“Force Majeure Event”). Force Majeure Events include, but are not limited to, acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemic, war, invasion, hostilities, terrorist acts, 4 riots, strike, embargoes or industrial disturbances. Seller’s economic hardship or changes in market conditions are not considered Force Majeure Events. Seller shall use all diligent efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized and resume performance under the Agreement. If a Force Majeure Event prevents Seller from carrying out its obligations under the Agreement for a continuous period of more than twenty (20) business days, Buyer may terminate this Agreement immediately by giving written notice to Seller.

  20. Assignment. Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under the Agreement without the prior written consent of Buyer. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder. Buyer may at any time assign, transfer or subcontract any or all of its rights or obligations under the Agreement without Seller’s prior written consent.

  21. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from this Agreement.

  22. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.

  23. Governing Law; Venue. All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of Nevada without giving effect to any choice or conflict of law provision or rule (whether of the State of Nevada or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Nevada. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Nevada in each case located in the City of Reno and County of Washoe, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.

  24. Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of this Agreement or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.

  25. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

  26. Survival. Provisions of this Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Setoff, Warranties, Indemnification, Intellectual Property, Insurance, Compliance with Laws, Confidentiality, and Governing Law; Venue.

  27. Changes. Buyer shall have the right at any time to make changes in drawings, designs, specifications, materials, packaging, time and place of delivery and method of transportation. If any such changes cause an increase or decrease in the cost, or the time required for the performance, an equitable adjustment shall be made and this agreement shall be modified in writing accordingly. Seller agrees to accept any such changes subject to this paragraph.