LEADING EDGE METALS & ALLOYS, INC. (“LEMA”)

LEMA PURCHASE ORDER – TERMS AND CONDITIONS. 

  1. CONTRACT OF PURCHASE. Subject to the terms and conditions stated herein and, on an Order, (as defined below) (including all drawings, specifications and other documents attached to or referred to in the Order), Seller agrees to sell and LEMA agrees to purchase from Seller, the goods and/or services described in the Order (a “PO” or “Purchase Order” or “Order”). If, for any reason, Seller shall fail to return to the LEMA the signed acknowledgement copy of the Order, any conduct by Seller which recognizes the existence of a contract pertaining to the subject matter of the Order shall constitute unqualified acceptance by Seller of the Order and all of its terms and conditions, including the terms herein. The terms of the Order, including the terms herein, shall constitute the complete and exclusive statement of the terms and conditions of the contract between the parties and may be modified only by written instrument executed by the authorized representatives of both parties. Any terms proposed by the Seller which add to, vary from or conflict with the terms of the Order, including the terms herein, shall be null and void.
  2. PRICE; TAXES. The price for the goods and/or services shall be the price as shown on the Order. If prices are not stated herein, Seller shall offer its lowest published prices. All duties and taxes which Seller is required by law to collect from LEMA are included in the price stated on the Order; any such items included in the prices or otherwise payable by LEMA shall be separately identified on Seller’s invoice.
  3. PACKING AND SHIPPING. Unless otherwise provided herein, no charge shall be made by Seller for containers, crating, boxing, storage or other packing requirements. All goods shall be packed, packaged and otherwise prepared for shipment in accordance with sound commercial practices to properly protect the contents, or as otherwise specified Order and the goods shall be stacked at least five layers high in transit. All goods must be marked with the country of origin, the packaging must be marked with the same country of origin and the invoice must state the country of origin for each line item and must match the marking on the goods.
  4. INVOICES. Payment of an invoice shall not constitute acceptance of supplies or services. Invoices will be emailed, faxed or mailed to LEMA’s accounting department when items are shipped. The time payment terms of Seller’s invoice(s) shall commence with the date of actual receipt and acceptance of the goods or services. Payments of invoices shall be subject to adjustment for shortages, defects and other failures of Seller to meet the requirements of the Order. LEMA shall have the right to reduce and set-off against amounts payable hereunder any indebtedness or other claims which LEMA may have against Seller however and whenever arising.
  5. DELIVERY. Unless otherwise agreed in writing, the goods shall be delivered to LEMA assembled, completed, and ready for use, and the LEMA shall accept delivery of such goods or performance of any required services at the location designated on the Order. The obligation by Seller to meet the delivery or performance date is material; time is of the essence. If any goods are not delivered on the date when due, Seller shall be responsible for all freight costs and costs to expedite the delivery, as well as any other costs or damages incurred by LEMA as a result of such delay. Delivery of goods or performance of any required services is not complete until goods or services have been actually received and accepted by LEMA.
  6. RISK OF LOSS. Seller will bear all risk of loss on goods until final acceptance by LEMA or its customer at destination, unless otherwise specified in the Order and excluding losses caused by the gross negligence of LEMA or its customer.
  7. EXCUSABLE DELAY. Seller shall not be deemed to be in default on account of delays in the delivery of goods or in the performance of services to the extent it is beyond Seller’s control and not occasioned by Seller’s fault or negligence, provided that promptly upon the occurrence of any event which may result in a delay, Seller shall give notice thereof to LEMA, which notice shall identify such occurrence and specify the period of delay which may be reasonably expected to result therefrom. In the event delivery of the goods or performance of services shall be delayed due to any cause beyond Seller’s control and not occasioned by Seller’s fault or negligence for a period of more than thirty (30) days after the end of the calendar month in which delivery is otherwise required, LEMA shall have the option to terminate the Order upon, and such termination shall discharge all obligations and liabilities of the parties hereunder with respect to undelivered goods, services, data or other items to be furnished hereunder.
  8. WARRANTY. Seller warrants to LEMA and its affiliates, its successors, assigns, customers, and users of the goods sold by LEMA that all goods provided hereunder shall be (i) merchantable; (ii) new; (iii) free from defects in material and workmanship; (iv) with regard to goods designed by Seller, free from defects in design; (v) in compliance with all applicable specifications, drawings, and performance requirements; (vi) fit for the purpose intended; (vii) free from liens and encumbrances; and (viii) free from infringement of third party intellectual property. Delivery, inspection, test, acceptance or use of, or payment for the goods furnished hereunder shall not affect Seller’s obligation under this warranty, and such warranties, and all other warranties, express or implied, shall survive delivery, inspection, test, acceptance, payment, and use. If defects are identified, Seller agrees, at LEMA’s option, to correct defects in or to replace any goods not conforming to the foregoing warranty promptly, but in no event, will repair or replacement and delivery be completed more than ten (10) days from notice of such nonconformity by LEMA. If Seller fails to correct defects in or replace nonconforming goods promptly, LEMA, after reasonable notice to Seller, shall have the right to correct or replace such goods and charge Seller for the cost incurred by LEMA in doing so, such right to include, without limitation, LEMA’s right to deduct or offset. If services or technical data are to be provided by Seller hereunder, Seller warrants to LEMA that such services and/or technical data have been performed or prepared in a professional and workmanlike manner and in compliance with LEMA’s instructions or other requirements. Seller further warrants that it has the requisite power, authority and ability to execute, deliver and perform its obligations hereunder.
  9. INDEMNIFICATION. Seller covenants and agrees at all times to protect, hold harmless and indemnify LEMA, its shareholders, directors, officers and employees, its affiliated companies, its customers and end users, and their respective directors, officers, employees, successors and assigns (“LEMA Indemnitees”) from and against any and all damages, losses, costs (including attorneys’ fees and costs), penalties, expenses and all other liabilities arising from (i) a breach of this Order by Seller, (ii) actual or claimed infringement or violation of intellectual property rights, patents, trademarks or copyrights, including, but not limited to, misappropriation of trade secrets, and (iii) from and against any suits, actions, or legal proceedings of any kind brought against any LEMA Indemnitee, or by such other parties by or on account of any person, persons, or entities, or on account of any injuries received or sustained by any person, persons, or entities in any manner (howsoever arising, including without limitation, by reason of negligence, breach of warranty, defect in design, material or workmanship or otherwise, and even though strict liability be claimed), directly or indirectly caused by, incident to, or growing out of a breach of this Order, defects in the design, manufacture, or materials used in the goods, negligence in the manufacture, or provision of the goods supplied, or performance of the services hereunder. If directed by LEMA, Seller shall take upon itself the defense and/or settlement of all such claims and the defense of any suit, suits or legal proceedings of any kind brought to enforce such claim or claims, and to pay all judgments entered in such suit, suits or legal proceedings, and all attorneys’ fees and other expenses. Seller agrees that in any instance where such claims in any way affect LEMA’s interest under the Order or otherwise, Seller shall not consummate any settlement without LEMA’s prior written consent. Seller’s covenants of indemnity herein shall continue in full force and effect notwithstanding the termination or expiration of the Order.
  10. INSPECTION AND ACCEPTANCE. All goods are subject to final inspection and acceptance at any time after delivery to LEMA, its customers, higher tier contractors and the U.S. Government, if applicable, at all times and places, as such persons may require. Seller shall provide, without additional charge, all reasonable facilities and assistance for the safety and convenience of the foregoing parties in performance of such inspects and tests. If any goods are defective in material or workmanship or otherwise not in conformity with the requirements of the Order, LEMA, without prejudice to any other rights or remedies, shall have the right to return any non-conforming goods to Seller for reimbursement, credit, replacement or correction as LEMA may direct, or LEMA may correct and/or replace such goods at Seller’s expense and offset such costs from amounts due to Seller. If Seller fails to correct or replace non-conforming goods, per LEMA’s direction, in a timely manner, LEMA may cancel the Order as to all such goods, and in addition, may cancel the then remaining balance of the Order. Any goods rejected by LEMA will be held by LEMA temporarily at Seller’s risk and expense. Seller will reimburse LEMA for any packaging, handling and transportation costs LEMA incurs with respect to rejected goods. LEMA may revoke its acceptance of goods at any time, whether or not a substantial modification to the goods has been made, if LEMA finds a previously undiscovered defect in the goods which substantially impairs the value of the goods to LEMA. Without limiting any of the other rights and remedies of LEMA with respect to non-conforming goods, LEMA shall have a right to recover all damages and other costs incurred by LEMA as a result of Seller supplying non-conforming goods.
  11. LEMA’S CHANGES. LEMA shall have the right at any time prior to the delivery date of the goods or services to cancel, make changes to an Order, suspend all or any portion of the Order, including, without limitation, the drawings, designs, specifications, packaging, time and place of delivery, nature and duration of services, and method of transportation. Within ten (10) days after receipt of a cancellation or change notice, Seller shall notify LEMA of its proposed pricing for the change, including a cost breakdown and substantiation for the change, whether by way of increase or decrease, and the parties shall negotiate an equitable adjustment in the corresponding prices.  
  12. CANCELLATION/TERMINATION. In addition to its other rights hereunder, LEMA reserves the right upon written notice to Seller to cancel the Order or any part thereof without further cost or liability if Seller breaches any of the provisions of this Order, or if Seller becomes insolvent or the subject of any proceeding under the law relating to bankruptcy or the relief of debtors. LEMA further reserves the right to terminate the Order or any part thereof for the sole convenience of the LEMA. If such termination right for the convenience of LEMA is invoked, all reasonable costs incurred up to the date of termination will be reimbursed, provided Seller establishes an entitlement thereto.
  13. RIGHT OF ENTRY. Upon written notification, LEMA shall have the right of entry to seller’s facilities to verify the quality of its work, records and materials.
  14. RECORDS RETENTION. Seller shall maintain records related to an Order for a period of fifteen (15) years, unless otherwise specified on an Order.
  15. SUBCONTRACTING. Seller shall ensure flow down and compliance with an Order by its subcontractors and sub-tier suppliers.
  16. ASSIGNMENT. No right or interest in this contract shall be assigned by Seller without the written permission of the LEMA. Any attempted assignment or delegation shall be wholly void and totally ineffective for all purposes.
  17. CONFIDENTIAL AND/OR PROPRIETARY INFORMATION.

(A) “Confidential Information” and/or “Proprietary Information” (hereinafter referred to collectively as “Proprietary Information”) shall, for the purpose of this Order, mean: (i) information, knowledge or data disclosed by LEMA to Seller, including, without limitation, all drawings, prints, specifications, processes, manufacturing techniques, and schedules, regardless of whether disclosed in written, tangible, oral, visual or other form, (ii) information, knowledge or data which was obtained from facility visits. In the event LEMA furnishes sample products, equipment, or other objects or material, including software, to Seller, the items so received and any information contained therein shall be treated as Proprietary Information disclosed to Seller under this Order. Furthermore, any and all information obtained or derived from said items, including results from testing, shall be treated as if they were Proprietary Information disclosed pursuant to this Order. All Proprietary Information disclosed in any documentary or tangible form, whether in written or electronic form may be marked “Proprietary” or “Confidential” and if the Proprietary Information is not so identified, it will be considered proprietary if by its very nature or the circumstances under which it is disclosed one would reasonably consider it to be proprietary. Seller shall use LEMA’s Proprietary Information solely for the purposes of supporting the current business relationship with LEMA and not for any other purpose. Seller shall not disclose LEMA’s Proprietary Information to any third party without LEMA’s express written consent. Seller may disclose LEMA’s Proprietary Information to contract workers, consultants and agents of Seller who have a need to know and who have executed Orders with Seller obligating them to treat such information in a manner consistent with the terms of this Order. Seller shall not (a) sell LEMA parts or components incorporating or containing LEMA Proprietary Information to any third party, or (b) sell any goods to any third party which have been produced using LEMA Proprietary Information.

(B) Notwithstanding the foregoing provisions, Proprietary Information does not include information: (1) which is or may hereafter be in the public domain through no fault of Seller; or (2) which Seller can show, as reflected by its written documents, was known to it prior to the disclosure by LEMA; or (3) which is disclosed to Seller by a third party, without restrictions similar to those herein imposed, subsequent to disclosure by LEMA; or (4) which Seller can show, as reflected by its documents, was independently developed by Seller without the use of the Proprietary Information.

  1. INTELLECTUAL PROPERTY. All inventions, patents, copyrights, trade secrets, know-how, test results, tooling, jigs and fixtures, or other industrial or intellectual property, associated with, or used in or for, the manufacturing of products under an Order shall be identified herein as “Intellectual Property”. Unless otherwise agreed in writing, if the work performed by Seller under an Order is funded wholly or in part by LEMA or utilizes or is derived from LEMA Proprietary Information or LEMA Intellectual Property, the resulting Intellectual Property shall belong exclusively to and is hereby assigned to LEMA (“LEMA Project Intellectual Property”). Seller shall not have any rights in LEMA Project Intellectual Property except as LEMA may grant for the purposes of manufacturing products for LEMA. Seller shall execute assignments and other documents which, in the opinion of LEMA, are necessary to secure LEMA’s rights hereunder.
  2. 19. EEO CLAUSES: If applicable, Seller shall comply with the following requirements and shall flow down these requirements to relevant sub-tier suppliers:
  • 41 CFR 60-1.4 Equal Opportunity Clause
  • 41 CFR 60-300.5 Equal opportunity for veterans
  • 41 CFR 60-300.44 Affirmative action programs
  • 41 CFR 60-741.5, Equal opportunity for workers with disabilities.
  • 41 CFR 60-741.44, Required contents of affirmative action programs [for workers with disabilities].
  • 29 CFR 471 Appendix A to Subpart A, Text of Employee Notice Clause.
  1. 20. COUNTERFEIT PARTS – (a) For purposes of this Clause, the term “Parts” consists of those parts delivered under an Order that are the lowest level of separately identifiable items (e.g., articles, components, goods, and assemblies). The term “Counterfeit Part” means a Part that fulfills any or all of the following: 1) is or contains items misrepresented as having been designed, produced and/or tested under an approved system or other acceptable method; 2) is an item altered to resemble a product without authority or right to do so, or is an imitation of another product, with the intent to mislead or defraud by presenting the imitation as original or genuine; 3) is an approved Part that has reached a design life limit or has been damaged beyond possible repair, but is altered and misrepresented as acceptable; or 4) is a used, refurbished, sample, or reclaimed item passed off as a new one.

(b) Seller agrees and shall ensure that Seller shall deliver no Counterfeit Parts to LEMA. Seller shall only purchase items to be delivered or incorporated as Parts directly from the original component manufacturer /original equipment manufacturer, or through an authorized distributor. Parts shall not be acquired from independent distributors or brokers unless approved in advance in writing by LEMA. Seller shall, at its expense, promptly replace any delivered Counterfeit Part with a genuine Part conforming to the requirements of an Order. Notwithstanding any other provision herein, Seller shall be liable for all costs relating to the removal and replacement of Counterfeit Parts, including costs borne by LEMA, its customer or subcontractor associated with removing Counterfeit Parts, of reinserting replacement Parts and of any testing necessitated by the need to identify the Counterfeit Parts and the reinstallation of Parts after Counterfeit Parts have been exchanged. The remedies contained in this Clause are in addition to any remedies LEMA may have at law, equity or under other provisions of an Order.

  1. COMPLIANCE WITH LAWS. Seller warrants that all goods and/or services supplied hereunder will have been produced or provided in compliance with, and Seller agrees to be bound by, all applicable federal, state and local laws, Orders, rules, regulations, guidelines, standards, limitations, controls, prohibitions, or other requirements which are contained in, issued under, or otherwise adopted pursuant to such laws. Seller further acknowledges and warrants that it will comply with the United States Foreign Corrupt Practices Act, 15 U.S.C. Section 78, et. Seq. (“FCPA”), the anti-corruption laws, regulations and policies of the home country of the Seller, the United States and/or the anti-corruption laws, regulations and policies of any other country with jurisdiction over the activities performed pursuant to an Order. Seller will not employ forced, slave or convict labor or other exploitive forced labor practices.
  2. INDEPENDENT CONRACTOR. Seller agrees that any services it performs constitute work in its status as an independent contractor. Seller confirms that it exercises control over its employees, contractors, and agents, and that none are acting under the control of LEMA. Seller agrees to indemnify and hold LEMA Indemnitees harmless against any claim by its employees, contractors or agents that they are acting under LEMA’s control and qualify in any way as LEMA’s employees.
  3. LEMA CUSTOMERS. Seller shall not communicate, directly or indirectly, with any LEMA customers without LEMA’s written authorization.
  4. REMEDIES CUMULATIVE. LEMA’s remedies shall be cumulative and remedies herein specified do not exclude any remedies allowed by law or equity.
  5. TITLE/LIENS. Title to all goods shall vest in LEMA at the point the goods are delivered to LEMA and have been accepted by LEMA. Seller shall pay for labor, services, materials, equipment and parts thereof, and other expenses incurred by it or its Sellers in connection with the Order and indemnify and defend LEMA Indemnitees against all claims and liens arising out of unpaid account.
  6. GOVERNING LAWS; VENUE. The Order shall be construed and enforced according to the laws of the state of California. Any dispute relating to the Order shall be held in the state or federal courts located in Los Angeles Count, California.  If either party seeks legal recourse to enforce its rights hereunder, the prevailing party shall be entitled to recover its attorneys’ fees and expenses.
  7. SEVERABILITY. If any provision of the Order shall be held by a court of competent jurisdiction to be contrary to law, the remaining provisions of the Order shall remain in full force and effect.
  8. NO WAIVER. The failure of a party to enforce any provision of the Order promptly shall not be construed as a waiver of such provision or of the right of such party to enforce such provision at a later time. Acceptance of any goods or services or payment thereof shall not waive any breach.
  9. CONFLICT MINERALS. Seller agrees to undertake reasonable due diligence to determine if any conflict minerals, as defined in U.S. Securities and Exchange Commission regulations, are necessary to the functionality or production of any products supplied to LEMA under the Order.. Seller will disclose the scope of and results of this due diligence to LEMA and will provide any and all reasonable assistance to LEMA related to any conflict minerals disclosures required by the US Securities and Exchange Commission. All 3TG materials shall be certified conflict fee. RoHS and REACH certificates shall be available upon LEMA’s request.
  10. HAZARDOUS MATERIALS. Prior to shipment of any hazardous material or chemical (as determined by OSHA regulation at 29 CFR § 1910.1200[d], Federal Standard No. 313, or the Hazardous Materials table under 49 CFR 172.101) onto LEMA property or work sites, Seller shall provide to LEMA one copy of Safety Data Sheet or equivalent, for each such material or chemical. The form shall include the LEMA stock number or the material specification number as defined in the PO and all of the information required by 29 CFR §1910.1200(g). The packaging, labeling, handling, and shipping of all hazardous items must conform to all laws, including Title 49 of the CFR Hazardous Material Regulations and carrier regulations. In addition to application of proper shipping labels on the outside container, each container of hazardous items shall be marked with the appropriate precautionary label according to the Code of Federal Regulations.

 

LEADING EDGE METALS & ALLOYS, INC.

Terms and Conditions of Sale

Leading Edge Metals & Alloys, Inc. (“Seller”) and the party purchasing Products and/or materials (“Customer””) hereby agree to the following Terms and Conditions of Sale (“Terms and Conditions”):

  1. Customer’s Acceptance of Terms and Conditions.
    These Terms and Conditions of Sale constitute the final and entire understanding and agreement between Seller and Customer relating to the products and/or materials (“Products’) sold by Seller to Customer.

    Customer’s acceptance of the Products is expressly conditioned on Customer’s acceptance of these Terms and Conditions. No different, inconsistent and/or additional terms and conditions submitted by Customer in acknowledging or accepting these Terms and Conditions or in issuing any purchase orders, releases, shipping instructions or other documents in connection with the Products shall modify or amend these Terms and Conditions or be valid or binding against Seller, unless specifically accepted by Seller in writing.

    In the event of any conflict, discrepancy or inconsistency between these Terms and Conditions and the terms and conditioned contained in any document submitted by Customer, these Terms and Conditions shall govern even if Customer’s document expressly limits acceptance to Customer’s terms and conditions.

    No course or pattern of dealing or conduct between Seller and Customer shall be relevant to determine the meaning or intent of these Terms and Conditions.

  1. Delivery.  
    Seller will use reasonable efforts to deliver the Products in accordance with a mutually agreed-upon delivery schedule. Seller shall not be liable for any delays, loss or damage in transit or expedited delivery costs unless the delay is due solely to Seller’s gross negligence.  Delivery dates are approximate and estimated and based on Seller’s prompt receipt of all necessary information from Customer.  In the event that Customer reschedules deliveries or modifies quantities during an established firm order period, Customer shall compensate Seller for all costs associated with the change in schedule or modification, including, but not limited to, overtime and expedited freight costs.

    (b)  Unless otherwise agreed in writing by the parties, Seller shall deliver the Products to the location specified by Customer using Seller’s standard methods for packaging and shipping such Products.  Seller may, in its sole discretion, without liability or penalty, make partial shipments of Products to Customer. Each shipment will constitute a separate sale, and Customer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Customer’s order.

    All prices quoted by Seller are FOB Seller’s loading dock unless otherwise noted on Seller’s invoice or any written quotation issued by Seller. [Risk of loss shall pass to Customer at the time of delivery to a third party carrier. Title shall pass to Customer upon payment in full for the Products.]

    (d)  Customer shall inspect all Products and shipping documents upon delivery.   A claim for Products shortages must be submitted in writing to Seller within five (5) days of the date of delivery.

  1. Prices and Payment.
    Seller’s price is subject to Customer purchasing the entire quantity of Products identified in Seller’s quotation. If Customer purchases less than the entire quantity, Seller may, in its sole discretion, adjust the price of the Products.

    (b)  Payment shall be due no later than 30 days after delivery unless otherwiseagreed in writing by Seller. Any overdue payments shall bear interest at the rate of 1.5% per month or the maximum rate under applicable usury laws, whichever is less. All prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Customer.  Customer shall not withhold payment of any amounts due and payable for any reason including any set-off of any claim or dispute with Seller. 

  1. Suspension of Delivery.
    In addition to all other remedies available under these Terms and Conditions, Seller shall be entitled to suspend the delivery of any Products if Customer fails to pay any amounts when due hereunder or otherwise breaches these Terms and Conditions.
  1. 5. Non Conforming Material/Changes/Cancellation/Returns.
    Any engineering or technical changes requested by Customer in connection with the Products are subject to approval by Seller taking into account the feasibility and practicality of the requested change. If Seller agrees to implement such requested change, then Customer shall be liable to Seller for any cost increase incurred as a result of such change.

    Any purchase order issued by Customer may be canceled upon the earlier of two (2) business days after the order is placed or prior to Customer’s receipt of Seller’s acceptable of the purchase order. Cancellation beyond the time frames in the preceding sentence shall incur the greater of a $250 or 3% of the order total processing fee.

    No Product shall be returned to Seller without prior written authorization of Seller. Product returns are subject to the following conditions: (1) all Products must be returned in their original packaging and in new condition, (2) only complete package quantities will be accepted and (3) all returns must be made within thirty (30) days following delivery and are subject to a restocking fee of fifteen percent (15%) of the original purchase price.

  1. Limited Warranty.
    Seller warrants that its Products shall be free of defects in material and
    workmanship and meet the written specifications for the Products established by Seller and Customer.  Subject to Sections 6(c) and (d) below, for a period of sixty (60) days after delivery, or such other period as is mutually agreed upon by Seller and Customer in writing (the “Warranty Period”), Seller agrees, at its discretion, to repair, replace or refund the cost of any Product or part thereof, which is proved to not meet the agreed upon written specifications or which is proved to be defective in material or workmanship under normal use.

    EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THIS SECTION 6(A), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY;  or (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

    (b) Products manufactured using components that Seller has been directed to use by Customer that are manufactured by a directed third party (“Third Party Directed Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Products.  Directed Third Party Products are not covered by the warranty in Section 6(a). For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY DIRECTED THIRD PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

    (c) Seller shall not be liable for a breach of the warranty set forth in Section 6(a) unless: (i) Customer gives written notice of the nonconformance, reasonably described, to Seller within ten (10) days of the time when Customer discovers or should have discovered the nonconformance; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Products and, if requested to do so by Seller, Customer returns such Products to Seller’s place of business at Seller’s cost for examination; and (iii) Seller reasonably verifies Customer’s claim that the Products do not conform to the specifications or are defective in material or workmanship.

    (d) Seller shall not be liable for a breach of the warranty set forth in Section 6(a) if: (i) Customer makes any further use of such Products after giving such notice; (ii) the nonconformance arises because Customer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Products; or (iii) Customer  alters or repairs such Products without the prior written consent of Seller.

    (e)   THE REMEDIES SET FORTH IN SECTION 6(a) SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 6(a).

 

  1. Limitation of Liability.
    IN NO EVENT SHALL SELLER BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL,  SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE ASSOCIATED WITH THE PROUDCTS OR PERFORMANCE HEREUNDER, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

  1. Force Majeure.
    Seller shall not be liable or responsible to Customer, nor be deemed to havedefaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances reasonably unforeseeable by Seller or beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor shortages or disputes (whether or not relating to either party’s workforce), or restraints  or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, including without limitation raw materials on terms acceptable to Seller, shortage of materials or equipment, or telecommunication contingencies occur, 
  1. Confidentiality.
    All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Customer, 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 this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Customer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to  information that is: (a) in the public domain; (b) known to Customer at the time of disclosure; or (c) rightfully obtained by Customer on a non-confidential basis from a third party.
  1. Notices.
    Any notice will be sufficiently given when duly mailed, addressed to Seller or to Customer at their respective addresses appearing herein, or to such other address for either party as that party may designate by written notice.

11 Successors and Assigns.
This Agreement shall bind the respective successors and assigns of the parties hereto, but none of Customer’s rights or obligations hereunder shall be assigned without Seller’s prior written consent.

  1. Waiver.
    No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller.  No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof.  No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other right or remedy.

[13. Intellectual Property.
(a) Seller warrants, to the best of its knowledge, that the Products are free of rightful claims for infringement of any United States patent or trademark, provided, however, that this warranty shall not apply to claims for patent infringement to the extent that any Products are (i) manufactured to Customer’s specifications, (ii) used in combination with Products not purchased from Seller in a manner which infringes a patent covering the combination, or (iii) used in a manner not reasonably anticipated by Seller.]

  1. Indemnification.
    (a) Customer shall indemnify, defend, and hold harmless Seller and Seller’s owners, officers, directors, employees, agents, subsidiaries, affiliates, and contractors(collectively, the “Seller Indemnitees”) from and against any and all liabilities, claims, costs, fees, damages, losses, and expenses (including without limitation reasonable attorneys’ fees and court costs) (collectively, “Losses”) which a Seller Indemnitee may incur or suffer as the result of (i) Customer’s failure or omission to comply with the terms of this Agreement, including any actual or alleged infringement of any patents, copyrights or trademarks arising from the manufacture or sale of Products in accordance with patterns, designs, specifications, drawings, directions, technical information, or data furnished to Seller by Customer
  1. 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.
  1. Choice of Law and Venue.
    (a) These Terms and Conditions shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of California.
    (b) Any claim or dispute arising out of or relating to these Terms and Conditions or the Products shall be resolved exclusively in the federal or state courts situated in Los Angeles County, California and Customer irrevocably consents to the jurisdiction of said courts. Prior to commencing any litigation, the parties shall endeavor to resolve any disputes through amicable commercial negotiations although neither party shall be precluded from seeking injunctive relief if circumstances warrant. 
  1. Assignment.
    Neither party shall be entitled to assign its rights or obligations hereunder without the other party’s prior written consent. A corporate reorganization, which does not result in a change of control or beneficial owner, shall not be deemed an assignment.
  2. Termination.
    Either party may terminate this Agreement: (a) upon breach of any material term of this Agreement by the other party which is not remedied within 30 days after written notice of such breach; or (b) if a party becomes insolvent or makes an assignment for the benefit of creditors, or such party institutes any voluntary proceeding under bankruptcy, reorganization, arrangement, readjustment of debt or insolvency law of any jurisdiction. In the event of a termination for any reason, Customer shall compensate Seller for all costs of raw materials, work-in-process or finished Products that have been acquired or manufactured on Customer’s behalf prior to the date of the termination.

Optional Provisions:

EXPORT RESTRICTION; FOREIGN CORRUPT PRACTICES ACT.

Customer acknowledges that the Products are subject to the U.S. Export Administration Regulations, as amended, and other applicable laws and regulations (collectively, “Regulations”), Customer agrees that any U.S. origin technical data provided by Seller with respect to the Products that Customer shall comply with the Regulations, and agrees that it shall not sell, transfer or deliver, directly or indirectly, any part or portion of the Products or related documentation supplied by Seller under this Agreement to any person or organization in violation of the Regulations. 

Each party acknowledges that it will (i) not engage in any activity that would violate the U.S. Foreign Corrupt Practices Act, and (ii) indemnify and hold harmless the other party from and against any and all damages, liabilities, penalties and expenses, including attorney’s fees, arising out of claims, suits or allegations of a party’s failure to comply with this paragraph.  The parties further agree that a failure of either party to comply with the requirements of this paragraph shall be a material breach of this Agreement.

WARRANTIES.

  • Customer represents and warrants that any financial information provided to Seller will be true and correct in all material respect and shall fairly and accurately present the financial condition of Customer as of the date of such financial statement.  Seller agrees to treat such financial statements as confidential and shall not disclose such information to any third party.
  • The parties agree to perform their obligations under these Terms and Conditions in accordance with applicable laws, regulations and rules.