Terms and Conditions of Sale

NOTE: THESE TERMS AND CONDITIONS APPLY WHEN WE SELL GOODS/SERVICES TO YOU.

Sonepar Automation Solutions, LLC (“Seller”) is a distributor primarily engaged in the business of selling third-party manufactured goods and providing certain limited ancillary services (referred to in this paragraph as our “Traditional Sales”). From time to time, Seller also provides, within premises owned, leased, subleased, and/or licensed by Seller or its affiliates, certain more technical or space or labor intensive services, such as storage, kitting, assembly, staging, modification, and fabrication services, in each case, to the extent agreed to in writing between Seller and its customer (referred to in this paragraph as our “Warehousing Sales”). These Terms and Conditions of Sale (“T&Cs”) govern both Traditional Sales and Warehousing Sales, excluding Section 19, which only applies to Warehousing Sales. If there is a conflict between Section 19 and the remainder of these T&Cs: (i) the remainder of these T&Cs shall control for Traditional Sales; and (ii) Section 19 shall control for Warehousing Sales.

1.   Governing Terms. By accessing, browsing, or otherwise using our website, requesting a quote, establishing a line of credit, placing an order, issuing a release, or accepting products or services, including Warehousing Services, from Seller, you acknowledge and agree that all products and services provided by or on behalf of Seller to you and/or your subsidiaries or affiliates (collectively, “Customer”) shall be governed exclusively by: (i) these T&Cs; and (ii) the additional terms of any credit application provided by Seller and executed by Customer (each a “Credit Application”), which shall together control regardless of any additional or conflicting legal terms and/or conditions contained on or referenced in any quotation, order, acknowledgement, invoice, website, release, correspondence, request, proposal, or other document or form issued by or on behalf of Customer, including, but not limited to, at any time in the course of dealing or performance, all of which are hereby rejected and deemed void and of no force or effect. Seller’s acknowledgment and/or acceptance of an order shall not be deemed an acceptance of any such other terms and/or conditions or a waiver of the provisions hereof; instead, these T&Cs may only be modified, waived, supplemented, or superseded with the express prior written consent of an authorized officer of Seller (i.e., with title of Vice President or President or their designee). While the terms and conditions set forth in these T&Cs and a Credit Application are intended to supplement one another, in the event of a conflict between the terms and conditions set forth in these T&Cs and a Credit Application (if any), the terms and conditions that are more onerous on Customer, as determined by Seller in its sole discretion, shall control. Notwithstanding the foregoing, Seller reserves the right, in its sole discretion, to periodically revise these T&Cs on our website without further notice. Seller reserves the right to accept or reject any order.

2.   Bill of Material, Releases, Submittals and Designs. Any bill of material whether generated by Customer or Seller is not intended to be a definitive list of the required goods and Seller is not responsible for confirming that it represents the required counts per any plans, specifications, or other documents. A written purchase order is required before the release of any goods from Seller to Customer. Any documents with wording “Hold for Release Order” or similar language are not orders and will not be released to Customer or any third party until a bona fide purchase order is received. All releases on orders need to be made in writing with approval from Customer. All release or shipping dates are approximate and are subject to availability of goods, manufacturers’ production schedules, carrier schedules, and other unforeseen factors. Under no circumstances shall Seller be liable for any loss or consequential damages on account of any hindrance or delay, avoidable or unavoidable, for late delivery of any goods. A submittal package will be produced by Seller upon request by Customer, if Customer has submitted and Seller has accepted a purchase order. Seller will release goods for shipment only upon receipt of an approved submittal package. Seller shall not be responsible for errors in approved submittal packages.

3.   Cancellation. Special orders or orders for custom goods are non-cancellable. All other orders may only be cancelled or modified with Seller’s prior written consent, which may be withheld in its sole discretion, and any cancellation and/or alteration will be accepted only with the understanding that (i) mutually agreed cancellation fees may apply and, in the absence of such agreed upon fees, any deposit and/or milestone payment made in connection with such order may be non-refundable, (ii) Seller shall be reimbursed for expenses incurred as a result of such cancellation, and (iii) Customer shall be responsible for any goods (x) obtained by Seller to fulfill Customer’s order which are not otherwise returnable and (y) that have been delivered and services that have been performed and/or are in-progress but not paid for as of the effective date of cancellation.

4.   Payment Terms. Payment for all amounts due hereunder shall be due on the twenty-fifth (25th) day of the month following the month of purchase (the “Payment Date”) unless otherwise expressly agreed to by Seller and Customer in writing; provided, however, Seller may, in its sole discretion, require full payment in cash before order entry, shipment, or delivery. Customer may also be required to (i) pay a deposit prior to Seller’s commencement of order fulfillment or production and/or (ii) make milestone payments upon the attainment of certain order milestones, in each case as agreed upon between Customer and Seller and as set forth in Seller’s quote. Any required deposit and/or milestone payment shall be due and payable in accordance with Seller’s quote outlining the same. Seller reserves the right in its sole discretion to refuse to accept any payment by credit card and/or charge a 3% processing fee for payments made via credit card. Payments not received when due will be subject to a late fee of 1.5%, or the maximum lawful rate, whichever is lower, of the outstanding invoice balance for each 30-day period or portion thereof past due. All costs of collecting monies due from Customer, including, but not limited to, legal expenses, legal interest, attorneys’ fees and collectors’ expenses, shall be paid by Customer to Seller upon demand. Customer expressly waives presentment or demand for payment, notice of non-payment, protest, or any other notice or demand of any kind concerning the Customer’s account. Remittances are received by Seller’s bank that serves as a clearing agent and the bank has no authority to determine whether the amount remitted constitutes payment in full. Remittances indicating payment in full will be deposited by the bank notwithstanding any such restrictive endorsements and any deposit of such payment(s) will not waive or relinquish any rights that Seller may have to be paid in full of all sums owed by Customer. When Seller deems itself insecure with respect to Customer’s ability to pay, Seller may, in its sole discretion: (a) withhold, defer, or cancel shipments and/or orders; (b) require cash in advance; and/or (c) demand immediate payment of all amounts then owed and pursue collection actions (including attorneys’ fees and costs of collection). Seller may also impose, revoke, or revise Customer’s credit limits, if any, at any time and for any reason. Customer agrees to give Seller current credit information, current annual financial statements, and proper authorizations for Seller to request financial information on Customer (including its subsidiaries and affiliates) from third parties, in each case, within five (5) days of request from Seller as a condition to beginning and/or continued credit extension or for any other reasonable purpose. All amounts and payments are in U.S. dollars. Seller may set-off and/or deduct for any sums owed by Customer (including its subsidiaries and affiliates). Customer has no right to withhold or set-off amounts against Seller or its affiliates.

5.   Customer Default. If Customer breaches any of its obligations under these T&Cs (including, without limitation, failure to make payment for goods or services provided when due) or declares bankruptcy or is otherwise insolvent, in addition to any other rights or remedies described herein, at law or in equity, Seller shall have the right, at Seller’s sole discretion, to: (i) declare all of Seller’s invoices outstanding together with accrued interest thereon and any other sums due in connection with transactions between Seller and Customer, including all reasonable attorney’s fees, collection agency fees, costs and expenses incurred on behalf of Seller to collect amounts owed, immediately due and payable, (ii) keep all deposits and/or milestone payments made prior to the date of default,  and (iii) cancel or reject any and all of Seller’s purchase orders or scheduled delivery of goods to Seller at any time prior to delivery without any liability to Seller. Failure of Seller to exercise any of the options set forth in this paragraph shall not constitute a waiver of the right to exercise the same rights in the event of any subsequent default.

6.   Returns. Goods that were factory special orders or otherwise fabricated and altered to accommodate Customer are not returnable. Stock goods may be returned prior to the Payment Date if: (a) prior authorization is obtained from Seller, which authorization shall be in Seller’s sole discretion; and (b) the goods are in resalable condition and in the original, undamaged manufacturer’s package with sales receipt or invoice. Credit for returned stock goods will be issued, if at all, based on Customer’s purchase price for such stock goods less any vendor restocking charges, freight, insurance, and other expenses of disposal. Any such credit will be issued within thirty (30) days of Seller’s receipt of the returned stock goods conforming to the requirements of this Section.

7.   Substitutions of Like Items. Seller may furnish suitable substitutes, with Customer’s consent, for goods unobtainable because of regulations established by a governmental authority or non-availability of goods from manufacturers and assumes no liability for deviation from published dimensions and descriptive information not essential to proper performance of the goods.

8.   Deliveries. Unless otherwise agreed in writing, Customer shall be solely liable for all shipping, packaging, cargo insurance, and other charges. Customer shall accept partial or pro rata deliveries in commercial units as full performance under Customer’s order if Seller is unable to fill Customer’s entire order. All goods shall be shipped FCA SHIPPING POINT, prepaid and billed, unless otherwise agreed by Seller in writing. Title and risk of loss pass to Customer on tender of delivery to the carrier. If goods are damaged in transit, Customer’s sole recourse is to file a claim with the carrier. Customer understands that delivery dates are estimates only and Seller shall not be liable for any late or delayed delivery. If delivery is delayed or deferred by Customer beyond the scheduled ship date, payment will be due in full in accordance with these T&Cs and the delayed or deferred goods will be stored at the risk and expense of Customer.

9.   Inspection and Acceptance. Customer must report claims for damages, shortages or other discrepancies to Seller in writing within five (5) days of delivery and prior to installation or the goods shall be deemed irrevocably accepted and such claims shall be deemed waived. Customer is responsible for identifying an authorized representative and/or employee for delivery and receipt of all goods and services provided. Any shortages or overages of, and/or any damages to, any goods must be noted on the bill of lading. If Customer accepts delivery without noting any damage on the delivery record, any and all damage claims are waived. Customer shall make claims for loss or damage to goods while in transit solely against the carrier, and upon Customer’s request, Seller will endeavor to take commercially reasonable actions to assist Custom in such transit claim.

10. Warranties and Disclaimer; Product Limitations. Customer acknowledges that Seller is a distributor and not a manufacturer and that Seller is not, except as otherwise expressly provided in Section 19 below or otherwise agreed to by the parties, responsible for the design, fabrication, or manufacture of any materials, equipment, tools, or other goods provided by or on behalf of Seller, including for any defects therein. Seller is also not liable for defects in information, labeling, instructions, or packaging provided by the manufacturer or other secondary sources. Any warranty issued by the manufacturer shall be solely that of the manufacturer and not of Seller. To the extent Seller provides service(s), Seller warrants that such service(s) will be performed in a good and workmanlike manner and in accordance with industry standards. Seller warrants good title to Customer and otherwise Seller shall assign to Customer, effective upon transfer of title, all assignable warranties of the manufacturer. Seller authorizes Customer to make or settle any claims under such manufacturer’s warranties directly with any such manufacturer. Each warranty of Seller provided herein shall continue for a period of one (1) year from delivery of goods and/or completion of services. Each jurisdiction’s laws, regulations, codes, and standards may vary regarding product labeling, warnings, instructions, specifications, manufacture, and installation, as well as regarding construction, zoning, and/or use of goods for a specific purpose; thus, Customer agrees that certain goods may not be appropriate for all areas or applications and Customer hereby agrees that Customer is solely responsible for ensuring proper compliance with all such laws, rules, regulations, codes, and standards. Customer shall comply with all applicable laws, rules, codes, standards, and regulations including, but not limited to, those concerning exports, imports, anti-corruption, anti-bribery, child labor, affirmative action, conflict minerals, trade, economic or financial restrictions or trade embargoes and any amendments thereto (collectively, the “Laws”) imposed by any applicable governmental authority, including, where applicable, the United States and the European Union. Customer agrees to indemnify, defend, and hold harmless Seller, for any breach of Laws by Customer or its affiliates, subsidiaries, officers, directors, managers, shareholders, members, employees, contractors, or agents. Customer agrees that it shall not, except as otherwise permitted under applicable Laws, transship, re-export, or otherwise divert goods purchased from Seller. If applicable, Customer undertakes to timely provide all information and documentation necessary for export, shipment and import. Seller shall not be liable, and Customer shall hold Seller harmless, for delays or any other losses resulting from Customer’s failure to timely provide accurate information and documentation, export/import reviews, or any related permitting procedures. To the extent permitted by law, Customer shall, promptly upon becoming aware, provide to Seller details of any claim, action, suit, proceedings or investigation against it with respect to the Laws brought by any enforcement authority. In the event that Seller should believe, acting in good faith, that Customer has violated, or is under investigation for violating, any Laws, or if Customer is identified on any applicable sanctions list, Seller shall have the immediate right to terminate its relationship and/or any contract with Customer without liability.

EXCEPT FOR THE WARRANTY OF TITLE ABOVE, SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, AND DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ANY WARRANTY AGAINST DEFECTS IN DESIGN, MATERIALS OR WORKMANSHIP, AND ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE. CUSTOMER’S EXCLUSIVE REMEDIES AGAINST SELLER FOR BREACH OF WARRANTY ARE REPAIR OR REPLACEMENT OF GOODS, REPERFORMANCE OF SERVICES, OR CREDIT OF THE PURCHASE PRICE PAID, AT SELLER’S OPTION, WHICH MAY ONLY BE EXERCISED WITHIN ONE (1) YEAR OF PERFORMANCE (FOR SERVICES) OR SHIPMENT (FOR GOODS). SELLER’S OBLIGATIONS UNDER THIS SECTION SHALL BE VOID UNLESS CUSTOMER PROVIDES SELLER WITH WRITTEN NOTICE OF THE NON-CONFORMITY IN THE GOOD OR SERVICE WITHIN THIRTY (30) DAYS OF DISCOVERY.

The products sold by Seller hereunder are not intended for use in activity where failure of the products could lead directly to death, personal injury or severe physical or environmental damage, including, without limitation, any nuclear, chemical or weapons production facility or activity, aircraft control devices, aerospace equipment, central trunk data transmission (communication) devices or medical life support equipment. If used in such application, Seller and its affiliates disclaim all liability for any damage arising as a result of the nature of the business in question, including, without limitation, nuclear, chemical or environmental damage, injury or contamination, and Customer shall indemnify, hold harmless and defend Seller, its affiliates and their officers, directors, employees and agents against all such liability, whether based on contract, warranty, tort (including negligence), or any other legal theory, regardless of whether Seller had knowledge of the possibility of such damage.

11.  Indemnification. To the fullest extent permitted by Laws, Customer agrees to defend, indemnify and hold harmless Seller and its parent and affiliates and its/their respective officers, directors, members, managers, representatives, agents, employees, and subcontractors from and against any and all actual or alleged claims, demands, suits, losses, damages, costs, and expenses, including reasonable attorneys’ fees, (collectively, “Claims”) arising out of, in connection with, or related to: (i) Customer’s breach of these T&Cs and/or any Credit Application; (ii) Customer’s violation of Laws; or (iii) the negligence, willful misconduct, or other fault of Customer or any of its employees, agents, or subcontractors; or (iv) a claim that any designs and/or specifications provided by Customer infringe, misappropriate, or violate trademarks, service marks, copyrights, patents, patent rights, trade secrets or other intellectual property rights of a third party . To the fullest extent permitted by Laws, Seller agrees to defend, indemnify and hold harmless Customer and its parent and affiliates and its/their respective officers, directors, members, managers, representatives, agents, employees, and subcontractors from and against all third-party Claims on account of bodily injuries (including death) or tangible property loss or damage arising out of Seller’s services, but only to the extent caused by Seller’s gross negligence or willful misconduct.

12. LIMITATIONS OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES AGREE THAT IN NO EVENT SHALL SELLER BE LIABLE TO CUSTOMER OR ITS OWNERS OR AFFILIATES, OR ITS/THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CUSTOMERS, AGENTS, CONTRACTORS, ASSIGNEES, OR REPRESENTATIVES, FOR: (A) ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, LIQUIDATED, INCIDENTAL, OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, FOR LOSS OF PROFITS, USE, TIME, DATA, OR INCOME, WHETHER IN CONTRACT, TORT, OR OTHERWISE RESULTING FROM ITS PERFORMANCE, NON PERFORMANCE, OR DELAY HEREUNDER, AND WHETHER OR NOT SELLER HAD NOTICE OF THE POSSIBILITY THEREOF; AND/OR (B) CLAIMS ARISING FROM ORDINARY WEAR AND TEAR, MISUSE, ABUSE, MISREPAIR, MISAPPLICATION, MODIFICATION, UNAUTHORIZED COMBINATION, IMPROPER SELECTION, FAILURE TO MAINTAIN, AND/OR IMPROPER INSTALLATION OF GOODS.

13. SELLER’S MAXIMUM LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER EXPRESSLY AGREES THAT UNDER NO CIRCUMSTANCE SHALL SELLER’S TOTAL LIABILITY TO CUSTOMER EXCEED THE AMOUNT PAID FOR THE GOOD(S) OR SERVICE(S) GIVING RISE TO THE CLAIM(S) AT ISSUE.

14. Governing Law; Limitations; Dispute Resolution. SOME STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, AND/OR LIMITATIONS MAY NOT APPLY AND OTHER RIGHTS MAY BE AVAILABLE. The validity, interpretation, and performance hereof, and any dispute connected herewith, shall be governed and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to its conflict of laws principles. The provisions of the Uniform Commercial Code as adopted by the Commonwealth of Massachusetts shall apply, with no application of the 1980 United Nations Convention on Contracts for the International Sale of Goods. The parties shall exercise their best efforts to resolve by negotiation any and all disputes, controversies, or differences arising out of or relating to these T&Cs or the goods or services provided by or on behalf of Seller to Customer in connection herewith. All disputes, controversies or differences between the parties that are not settled by negotiation shall be decided by litigation in the appropriate State or Federal Courts located in the Commonwealth of Massachusetts. Notwithstanding the foregoing, any legal action by Customer concerning these T&Cs and/or any goods or services provided by or on behalf of Seller must be commenced within one (1) year after the cause of action has arisen. CUSTOMER HEREBY WAIVES TRIAL BY JURY IN ANY COURT AND IN ANY SUIT, ACTION OR PROCEEDING ON ANY MATTER ARISING IN CONNECTION WITH OR IN ANY WAY RELATED TO THESE T&CS AND/OR THE ENFORCEMENT OF ANY OF THE RESPECTIVE PARTIES’ RIGHTS AND REMEDIES. CUSTOMER ACKNOWLEDGES THAT IT MAKES THIS WAIVER KNOWINGLY, VOLUNTARILY AND ONLY AFTER CONSIDERATION OF THE RAMIFICATIONS OF THIS WAIVER.

15. Taxes and Other Governmental Amounts. Customer shall pay all taxes, duties, tariffs, import fees, export fees, penalties, and similar charges levied by any government authority or agency in connection with goods and/or services provided by or on behalf of Seller to Customer. Unless otherwise expressly agreed by Seller in writing, such charges are not included in the price of goods or services and will be added to amounts due by Customer. Customer is responsible for all additional taxes, fees, tariffs, duties, charges, and penalties from taxing or other governmental authorities or agencies, and all legal expenses incurred by Seller, where arising due to changes in such amounts between the date of order and shipping or from incorrect or incomplete documentation or other information furnished by or on behalf of Customer. To the extent taxes do not appear on the invoice, Customer certifies that the sale of the goods is exempt from such tax, and Customer assumes the liability for any such tax that may be due as a result of purchase and hereby agrees to indemnify and hold Seller harmless with respect to any claims by taxing agencies for such claims.

16. Force Majeure. Seller shall not be liable for any delay, impairment, or prevention of Seller’s performance, in whole or in part, due to any event, circumstance, or occurrence that is not within Seller’s control, including, but not limited to, acts of God, labor disruptions, acts of war, acts of terrorism (actual or threatened), governmental decrees or controls, imposition of or changes to tariffs or duties, changes to commodity markets, insurrections, epidemics, pandemics, quarantines, shortages, communication or power failures, fires, accidents, explosions, inability to procure or ship goods or obtain permits or licenses, inability to procure supplies or raw materials, severe weather, catastrophic events, or any other event, circumstance, or cause beyond Seller’s control within the normal conduct of its business (collectively, “Force Majeure”). If Seller’s performance is so delayed, impaired, or prevented by Force Majeure, Customer agrees that Seller may, at Seller’s option: (i) suspend or terminate performance; and/or (ii) increase pricing and/or schedules for delivery or performance, in each case, without liability or penalty to Seller.

17. Hazardous Substances. Customer acknowledges that Seller has neither created nor contributed to the creation or existence of any hazardous or otherwise dangerous substances or conditions at Customer’s or its client’s sites, and Seller’s compensation hereunder is not commensurate with the potential risk of injury or loss that may be caused by exposure to, contamination by, or the presence of such substances or conditions.

18. Product-Specific Clauses.

(a) ELECTRONIC AND PHOTOGRAPHIC CLEANING FLUIDS CUSTOMERS — It is a violation of federal law to sell, distribute, or offer to sell or distribute any chlorofluorocarbon (CFC) containing cleaning fluid for electronic and photographic equipment or aerosol hydrochlorofluorocarbon (HCFC) containing cleaning fluid for electronic and photographic equipment to anyone who is not a commercial user of this product. The penalty for violating this prohibition can be up to $25,000 per unit sold. Customers purchasing such products must present proof of their commercial status in accordance with 40 CFR 82.68(a) or (c). A "Commercial User," as defined in the regulation, means a person that uses the product in the purchaser's business, or sells it to another person and has one of the following identification numbers: (i) a Federal employer identification number; (ii) a State sales tax exemption number; (iii) a Local business license number; or (iv) a Government contract number.

(b) MOLD RELEASE AGENT CUSTOMERS – It is a violation of federal law to sell mold release agents containing hydrochlorofluorocarbon (HCFC) as propellants to anyone, except for use in applications where no other alternative except a class I substance is available. The penalty for violating this prohibition can be up to $25,000 per unit sold.

(c) WASP AND HORNET SPRAY CUSTOMERS – It is a violation of federal law to sell or distribute wasp and hornet sprays containing hydrochlorofluorocarbon (HCFC) as solvents to anyone, except for use near high-tension power lines where no other alternative except a class I substance is available. The penalty for violating this prohibition can be up to $25,000 per unit sold.

(d) REFRIGERANT CUSTOMERS — Effective November 14, 1994, in accordance with the Federal Clean Air Act, sale of class I (CFC) and class II (HCFC) refrigerant will be restricted to resale purchases and/or to certified professional service technicians. To purchase regulated refrigerant goods, Customer must present a certification card or sign a statement of resale to complete the purchase.

(e) OSHA HAZARDOUS SUBSTANCE & CALIFORNIA PROPOSITION 65 PRODUCT INFORMATION— MSDS for OSHA-defined hazardous substances are available at your local Seller branch, or by contacting Seller's U.S. corporate headquarters. Seller makes no warranty with respect to the accuracy of the information or the suitability of the recommendations in the MSDS, all of which are provided by the manufacturers at issue, and, to the maximum extent permitted by applicable law, Seller disclaims any and all liability to Customer or any user or consumer with respect thereto. Proposition 65 is a California law requiring the state to maintain a list of chemicals that may cause cancer, birth defects, or reproductive harm. There are over 850 listed chemicals and Seller will attempt to provide a reasonable warning before potentially exposing Californians to such chemicals, but Customer acknowledges and agrees that Seller is a distributor and not a manufacturer of such goods and that Seller thus makes no warranty with respect to the accuracy, reasonableness, or suitability of the information or warnings provided in connection therewith, it being understood and agreed that such information and warnings are provided by the manufacturers at issue. Thus, to the maximum extent permitted by applicable law: (i) Seller disclaims any and all liability with respect thereto; and (ii) Customer releases Seller and its parents and affiliates from and for any and all claims, fines, penalties, and damages arising from or in connection therewith, it being agreed that Customer’s sole recourse under Proposition 65 shall be against the manufacturer at issue. To learn more about Proposition 65, please visit www.oehha.ca.gov.

(f) MATERIALS OF TRADE — Customer represents that if it is purchasing goods as its "materials of trade" as defined in the Hazardous Materials Regulations in Title 49 of the Code of Federal Regulations, that the goods will be used in direct support of its business, which is not transportation, and that such goods shall not be resold or transported in a vehicle other than one owned by itself.

19. Warehousing Terms and Conditions. THIS SECTION SHALL ONLY APPLY WHEN AND TO THE EXTENT SELLER IS PROVIDING, WITHIN PREMISES OWNED, LEASED, SUBLEASED, AND/OR LICENSED BY SELLER OR ITS AFFILIATES (AS APPLICABLE, THE “SPACE”), STORAGE, KITTING, ASSEMBLY, STAGING, MODIFICATION, FABRICATION AND/OR RELATED SERVICES (COLLECTIVELY, “WAREHOUSING SERVICES”) INVOLVING EQUIPMENT, INVENTORY, MATERIALS, TOOLS, AND/OR OTHER GOODS THAT ARE OWNED BY CUSTOMER OR A THIRD-PARTY THAT HAS AUTHORIZED CUSTOMER TO POSSESS AND PROVIDE SAME TO SELLER FOR THE PROVISION OF WAREHOUSING SERVICES (COLLECTIVELY, “WAREHOUSED GOODS”). The scope, duration, and extent of the Warehousing Services, as well as the quantities and descriptions of the Warehoused Goods and, except as otherwise set forth in this Section, the commercial (i.e., non-legal) terms associated therewith, shall be agreed to in writing between Customer and Seller (e.g., through a Quote or Proposal from Seller that is accepted by Customer). This Section shall be read to compliment and supplement the other Sections of these T&Cs, which shall also apply to Warehousing Services, but with the provisions of this Section controlling over any conflicting provisions in any other Section(s) of these T&Cs solely when and to the extent concerning Warehoused Goods and/or Warehousing Services. Accordingly, solely with respect to the Warehoused Goods and/or Warehousing Services:

(a)  Customer Warranties. Customer warrants that: (i) it owns and has good and clear title to the Warehoused Goods or, if a third-party owns the Warehoused Goods, is otherwise entitled to possess and provide same to Seller for the provision of Warehousing Services; and (ii) the Warehoused Goods are non-hazardous, non-explosive, and not highly flammable and will not require refrigeration or other specialized storage unless otherwise expressly agreed by Seller in writing.

(b)  Rates for Warehousing Services. Rates and charges for Warehousing Services may be changed from time to time by: (i) Seller’s provision of at least thirty (30) days’ written notice to Customer; or (ii) the mutual written agreement of the parties. Unless otherwise agreed in writing, rates for Warehousing Services shall cover only Seller’s reasonable and ordinary labor involved in receiving the Warehoused Goods at the Space, placing the Warehoused Goods into storage in the Space (if applicable), and returning Warehoused Goods to the loading door or dock of the Space for pick-up by the Customer or its carrier. Unless otherwise agreed in writing, Customer shall be solely liable for all shipping, packaging, cargo insurance, and other charges, as well as any demurrage and/or detention charges incurred in connection with loading, unloading, packaging, receipt, and/or delivery of the Warehoused Goods. Customer shall reimburse Seller on demand for all other costs incurred by Seller in connection with performing the Warehousing Services, including non-routine labor and other special services (i.e., other than ordinary handling and storage) at Seller’s then prevailing rates, which shall include reasonable overhead and profit.

(c)  Warehousing Services Warranties; Disclaimer and Exclusive Remedies. Seller warrants that it will perform the Warehousing Services with a reasonable degree of care. Claims for breach of such warranty must be submitted to Seller in writing, along with photographs and other reasonable supporting documentation, no more than three (3) business days after Customer first becomes aware or first reasonably should have become aware of such claim, but in no event more than ten (10) calendar days after the conclusion of the Warehousing Service(s) at issue. Seller’s good faith determination of the validity of any such warranty claim shall control and Customer shall comply with Seller’s instructions regarding the use, return, and/or disposal of any such Warehoused Goods as part of the warranty process. EXCEPT AS EXPRESSLY PROVIDED IN THIS SUBSECTION IMMEDIATELY ABOVE, SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, RESPECTING WAREHOUSED GOODS OR WAREHOUSING SERVICES, AND SELLER SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY USAGE OF TRADE, OR COURSE OF DEALING OR PERFORMANCE. CUSTOMER’S EXCLUSIVE REMEDIES FOR BREACH OF SUCH LIMITED WARRANTY ARE REPAIR OR REPLACEMENT OF THE WAREHOUSED GOOD(S), CORRECTION OR RE-PERFORMANCE OF THE WAREHOUSING SERVICE(S), OR REFUND OR CREDIT FOR THE ORIGINAL PURCHASE PRICE PAID BY CUSTOMER TO SELLER FOR THE WAREHOUSED GOOD(S) AND/OR WAREHOUSING SERVICE(S) AT ISSUE, AT SELLER’S OPTION.

(d)  Title and Risk of Loss; Care, Custody, and Control. Title to and ownership of the Warehoused Goods shall, as between Customer and Seller, remain exclusively with Customer. Except to the extent of Seller’s limited warranty and exclusive remedy obligations, Customer is solely responsible for all risk and actual loss of, damage to, or destruction of the Warehoused Goods. Care, custody, and control over the Warehoused Goods shall at all times, as between Customer and Seller, remain exclusively with Customer, except that Seller shall be deemed to have care and custody solely when and to the extent the Warehoused Goods are in Seller’s physical possession in the Space for purposes of the Warehousing Services, in which case Seller’s obligations are limited to the fulfillment of its limited warranty and exclusive remedy obligations. For the avoidance of doubt, and notwithstanding anything herein to the contrary, Customer is solely responsible and shall release, defend, and indemnify Seller, its affiliates, and its/their employees, agents, officers, directors, and insurers from and against all loss of, damage to, or destruction or costs of or resulting from the Warehoused Goods in connection with any latent defects in the Warehoused Goods or any event or occurrence outside of Seller’s reasonable control, including, but not limited to, as a result of theft, vandalism, riot, pandemic, flood, fire, earthquake, hurricane, war, tornado, major storm, government takings, or other “force majeure” events or occurrences.

(e)  Relocation of Warehoused Goods. Customer shall be responsible for ensuring that the Warehoused Goods are safely and securely loaded and transported away from the Space on or before the termination or expiration of the Warehousing Services at issue. Except in the event of an emergency or Customer’s failure to load and transport away all Warehoused Goods on or before termination or expiration of Warehousing Services at issue, Seller will not relocate the Warehoused Goods away from the Space without the Customer’s consent, which consent shall not be unreasonably withheld, conditioned, or delayed. If Seller relocates the Warehoused Goods to a location other than the Space due to emergency or Customer’s failure to load and transport such Warehoused Goods away on or before the termination or expiration of the applicable Warehousing Services, all risk of loss shall immediately transfer back to Customer, including during such relocation, and all costs and expenses related thereto, including, but not limited to, packaging and transportation costs, cargo insurance, additional storage costs, legal fees and court costs, plus reasonable overhead and profit, shall be immediately reimbursed to Seller by Customer on demand.

(f)  Insurance Requirements for Warehoused Goods. Customer is solely responsible for insuring the Warehoused Goods, at all times, including, without limitation, while in the Space and through and including handling, packaging, loading, unloading, and transport to and from all locations. Customer and its insurers shall waive all rights of subrogation and recovery against Seller and its affiliates and its and their insurers, officers, directors, and employees with respect to the Warehoused Goods. At a minimum, Customer, at its sole cost, shall procure and maintain throughout the duration of the Warehousing Services, and for at least three (3) years thereafter, the following types and amounts of insurance: (1) Commercial General Liability Insurance on an occurrence basis, with coverage for premises liability, personal and advertising injury, products and completed operations, bodily injury, property damage and contractual liability, in limits of at least $2,000,000 per occurrence; (2) Worker’s Compensation & Employer’s Liability (stop gap) Insurance as required by statute and with benefits in all states in which Warehousing Services are performed; (3) Auto Liability Insurance for Customer’s owned, leased, hired or non-owned vehicles with a combined single limit of at least $1,000,000 for any one loss; (4) Umbrella Liability Insurance with limits of at least $3,000,000 per occurrence and coverage to apply in excess of underlying Commercial General and Auto Liability policies; and (5) All-Risk Property Insurance at no less than full replacement cost for all Warehoused Goods and all of Customer’s real and other personal property, machinery, equipment, fixtures and any other property owned or leased by Customer and in any way related to the Warehousing Services and/or Warehoused Goods. Such policy shall be on an “all-risks” basis (i.e., providing coverage for all-risks, including, but not limited to, fire, theft, flood, water damage, etc.), endorsed to name Seller and its parent and affiliates and each of their officers, directors, and employees as additional insureds, and endorsed to provide a Waiver of Subrogation in favor of Seller and its parents and affiliates and each of their insurers, officers, directors, and employees. All insurance required to be maintained in this subsection shall be written with insurers having A.M. Best Ratings of A- VII or better and Customer shall be solely responsible for all premiums, deductibles, and self-insured retentions.

20. Intellectual Property. Customer shall have no right, title, or interest in, to, or under Seller’s trademarks, tradenames, patents, copyrights, domain names, trade dress, product names, catalogs, or other intellectual property rights, or to any such intellectual property rights of the manufacturers or sub-suppliers of goods provided by or on behalf of Seller pursuant hereto. Seller hereby assigns to Customer all of Seller’s right, title, and interest in and to all Deliverables; provided, such assignment shall not be construed to transfer any right, title, or interest in or to Seller’s Background IP. At Customer’s request and expense, Seller shall execute such documents and take such actions as Customer reasonably requests to affect the same. To the extent Background IP is necessary for Customer’s exploitation of any work or Deliverables provided herein, Seller hereby grants Customer a limited non-exclusive, worldwide, perpetual, non-transferrable, non-sublicensable, royalty-free license to use such Background IP solely in connection with such work or Deliverables and for no other purpose whatsoever and such Background IP shall at all times be considered confidential information of Seller which shall not be disclosed to any person or entity. To the extent Customer provides or makes available any Background IP to Seller in connection with this Agreement, Customer hereby grants Seller a limited, non-exclusive, perpetual, non-transferrable, non-sublicensable, royalty-free license to use such Background IP solely for the purpose of performing its obligations under these terms and for no other purpose whatsoever. Notwithstanding anything to the contrary contained herein, subject to the licenses set forth above in this Section, each party will retain all right, title, and interest in and to its Background IP and/or changes to such Background IP. For purposes hereof, (i) “Deliverables” means any written data, reports, documentation, designs, schematics, diagrams, and drawings created by Seller exclusively and uniquely for Customer as party of any design and/or engineering services performed by Seller for Customer and (ii) “Background IP” means intellectual property rights in existence before the date of a respective order or conceived, developed, or first reduced to practice outside the scope of such order.

21. Independent Contractor; Third Parties. The status of Seller and its personnel and any of its subcontractors is and will be that of independent contractors, and no such personnel or subcontractors will, at any time or for any purpose, be deemed Customer’s employees or agents. Except as otherwise provided in Section 11 above, these T&Cs are solely for the benefit of the parties hereto and no other person or party is conferred any rights, benefits or claims.

22. Security Interest. Customer hereby grants Seller a first priority purchase money security interest and/or chattel mortgage in the goods and any accounts receivable, cash, or other proceeds resulting from insurance or the resale thereof until full and final payment is made to Seller. Customer shall file, and it hereby permits and authorized Seller to file, all financing statements and other applicable documentation necessary to perfect, confirm and continue the validity, priority and enforceability of such liens and/or security interests. Customer further authorizes Seller to notify any creditor asserting a security interest in Customer’s assets that Seller has been granted a purchase money security interest and/or chattel mortgage in the goods. If Customer fails to pay for the goods delivered or services provided in connection therewith when due, Seller may repossess any goods in which it retains a security interest, and Seller shall have all the rights and remedies of a secured creditor under the Uniform Commercial Code.

23. Waivers. All mechanic’s lien, payment bond or similar waivers or restrictive endorsements on checks (“Waivers”) shall be effective only to the total dollar amount of payments actually received without any bankruptcy filing for 90 days thereafter. All Waivers must be signed by an expressly authorized representative of Seller, and Customer agrees that it bears the burden to confirm that the Seller representative is in fact so authorized. Customer agrees that Seller has and retains all mechanic’s and materialman’s liens, payment bond, performance bond, and/or other legal, contractual, and statutory rights for unpaid goods, services and/or other items, regardless of what other documents or correspondences may imply. Any endorsement or letter with a payment stating that it is “payment in full” or words of similar meaning shall have no effect and shall not be an accord and satisfaction or novation.

24. Assignment. Customer shall not assign any order, or interest therein, without Seller’s express prior written authorization. Actual or attempted assignment without Seller’s prior written consent shall be void and unenforceable and shall entitle Seller to cancel such order upon notice to Customer. Customer agrees to notify Seller in writing of any change in majority ownership of its business entity.

25. Severability. If any term, provision, or subsection in these T&Cs is to any extent found illegal, invalid or unenforceable, the same shall be excluded to the extent of such illegality, invalidity or unenforceability and all other terms, provisions, and subsections hereof shall remain in full force and effect. To the extent permitted and possible, the illegal, invalid or unenforceable term, provision, or subsection shall be deemed replaced by one that is legal, valid, and enforceable and that comes closest to expressing the intent of such illegal, invalid, or unenforceable term, provision, or subsection. If such replacement is not permitted and possible, the illegal, invalid, or unenforceable term, provision, or subsection shall be severed from these T&Cs and the remainder of these T&Cs shall be valid and fully enforced as written.

26. Commercial Transaction and Waiver. CUSTOMER ACKNOWLEDGES THAT THE TRANSACTIONS TO WHICH THESE TERMS RELATE ARE COMMERCIAL TRANSACTIONS. CUSTOMER HEREBY VOLUNTARILY AND KNOWINGLY WAIVES ITS RIGHT TO NOTICE AND HEARING WHICH IT MAY BE ENTITLED TO UNDER ANY STATE OR FEDERAL LAW WITH RESPECT TO ANY PREJUDGMENT REMEDY OR OTHER RIGHT OR REMEDY THAT SELLER MAY ELECT TO USE OR OF WHICH IT MAY AVAIL ITSELF, AND FURTHER WAIVES ALL REQUIREMENTS OF DILIGENCE, DEMAND, PRESENTMENT FOR PAYMENT, NOTICE OF NONPAYMENT, PROTEST AND NOTICE OF PROTEST, AND NOTICE OF ANY RENEWALS OR EXTENSIONS OF THESE T&CS. CUSTOMER ACKNOWLEDGES THAT CUSTOMER MAKES THESE WAIVERS KNOWINGLY AND VOLUNTARILY, WITHOUT DURESS AND ONLY AFTER EXTENSIVE CONSIDERATION OF THE RAMIFICATIONS OF THIS WAIVER.

27. Entire Agreement. These T&Cs, together with the Credit Application (if any), and the commercial and technical terms of Seller’s forms, acknowledgements, quotations and invoices, constitute the entire and exclusive agreement between Seller and Customer, with any conflict therein being resolved in favor of the terms and conditions that are more onerous on the Customer, as determined by Seller in its sole discretion. All typographical or clerical errors made in these T&Cs or by Seller in any quotation, acknowledgement, or publication are subject to correction by Seller, in its sole discretion.

Terms and Conditions of Purchase

NOTE: THESE TERMS AND CONDITIONS APPLY WHEN WE BUY GOODS/SERVICES FROM YOU.

1. Either of the following constitutes your (“Seller’s”) acceptance of these Terms and Conditions of Purchase (“T&Cs”): (a) Seller’s execution or acknowledgement of a purchase or work order ("Order"); or (b) Seller’s commencement of performance of the Order (e.g., promising or commencing performance); provided, however, we (“Buyer”) may treat the offer made by the Order as having lapsed before acceptance if Seller fails to so accept within a reasonable period of time. Except as provided in Section 3 (only as to an extended warranty period) and Section 10 below, Orders are subject to and governed exclusively by, and Seller's acceptance thereof is expressly limited to, these T&Cs. Buyer hereby expressly rejects and objects to any prior or subsequently proposed term, condition or alteration. No modification or waiver of these T&Cs shall be binding on Buyer unless expressly accepted in writing by Buyer’s authorized officer. Any reference to Seller’s quote, bid or proposal does not constitute acceptance of any legal terms or condition thereof.

2. Orders may be issued electronically or in writing. The purchase price for goods (“Products”) and services sold to Buyer shall be as listed on the Order or as otherwise agreed in writing by the parties. Pricing quoted will be firm and not subject to increase for any reason, regardless of force majeure events, new or increased tariffs, shipping costs, import/export fees, duties, customs, or taxes, currency fluctuations, or increases in commodity or market pricing. Seller shall provide regular supply chain impact updates, including documented country of origin certifications for all products. All quotes must specify validity periods. Alternative sourcing options and associated costs must be provided when available. Buyer will pay undisputed portions of valid invoices within sixty (60) days of Buyer’s receipt. Buyer may cancel or change Orders without penalty upon at least ten (10) days’ notice. If Seller believes any such change will affect the price or delivery date, Seller shall so notify Buyer in writing (with reasonable supporting documentation) within three (3) days of receiving said written direction or the change shall be deemed accepted without modification to the price or date of delivery. Any such modification to price and/or delivery date must be pre-approved by Buyer in writing. No substitutions shall be made without Buyer’s prior written consent. Products shall be tendered by Seller in a single delivery unless otherwise agreed. Shipments shall be F.O.B. (INCOTERMS 2010) Buyer’s designated destination or otherwise in accordance with shipping terms on the Order. No charge will be allowed for packing, shipping or handling unless stated in the Order. Seller shall pay for damaged Products resulting from improper packing or marking. Itemized packing lists must accompany each shipment. Buyer’s count will be final and conclusive on shipments not accompanied by Seller’s itemized packing list. Time is of the essence. Seller shall promptly notify Buyer of any actual or anticipated delay and shall take all commercially reasonable steps to avoid or end delays without additional cost to Buyer.

3. Seller represents, warrants, and covenants that: (i) it has and will transfer good title to Products upon delivery, free and clear of all liens, claims and encumbrances of any kind; (ii) Products will conform to Seller's standard technical specifications and to all specifications, descriptions, drawings and standards provided by Buyer or otherwise agreed to by Seller, and they will be new, meet the highest industry standards, fit for the purpose(s) normally intended (or specifically intended if such intent is communicated to Seller in the Order or otherwise), and Products and services will be free from defects in design, materials and workmanship; (iii) Products and their use, sale, lease and distribution will not infringe, misappropriate, or violate trademarks, service marks, copyrights, patents, patent rights, trade secrets or other intellectual property rights of a third party; (iv) it will utilize all necessary or desirable protective equipment and devices, whether suggested or required by safety associations, government agencies, municipalities or otherwise; (v) that all services shall be done with the utmost skill, care and diligence, in a good and workmanlike manner, in accordance with the terms hereof and good industry standards of performance and in a timely manner; (vi) it and the Products and services provided to Buyer will comply with all applicable laws, codes, standards and regulations (including, but not limited to anti-corruption and anti-bribery, child labor, affirmative action and conflict minerals); and (vii) it will comply with all aspects of Buyer’s Cyber Security Requirements outlined in Appendix 1 as applicable. The foregoing warranties are enforceable by Buyer and its direct and indirect customers receiving such Products (together, “Customers”), and each shall remain valid for the longer of: (1) eighteen (18) months from the date of shipment from Seller; (2) such longer period as is offered by Seller in its then standard warranty; or (3) such longer period as is required by applicable law. If Seller breaches any of the foregoing warranties, Seller shall, at Buyer’s election and at Seller’s sole cost and expense (including, but not limited to, all transport, packaging, removal, testing, re-install and other labor costs): (a) repair or replace Products or services to Buyer's complete satisfaction; (b) reimburse Buyer for the purchase price paid for such Products or services; or (c) reimburse Buyer for the cost of substitute products or services obtained by Buyer from third-parties. Warranties shall begin anew on the date of repair or replacement pursuant to this Section 3.

4. Seller shall indemnify, defend and hold harmless Buyer, its parent, subsidiaries, Customers and affiliates, and its/their officers, directors, employees, agents, contractors and representatives, from and against any and all actual or asserted claims, actions, damages, injuries, fines, penalties, settlements, judgments, losses, costs and expenses (including court costs and attorneys' fees) (collectively "Losses") arising out of, in connection with, or resulting directly or indirectly from: (i) Seller's breach of any representation, warranty or covenant hereunder; (ii) the use, sale, lease or distribution of Products (including, without limitation, for Losses that are attributable, in whole or in part, to contamination, pollution or environmental damage (including clean-up costs), data or security breaches, or any inaccurate or misleading representations or omissions from any Product literature, communication, packaging, warning or instruction relating thereto); (iii) recall of Product initiated or required by Seller, a governmental agency or applicable laws, rules, orders or regulations; or (iv) negligence, gross negligence, recklessness, fraud, strict liability, fault, violation of law, or willful misconduct of Seller, its employees, suppliers, manufacturers, contractors, officers, directors, guests, invitees or agents. Seller acknowledges and agrees that its indemnity obligations under this Section 4 shall be enforceable against Seller regardless of whether or not insurance Seller maintains covers such indemnity obligations. The foregoing shall not be construed to negate, abridge, or otherwise reduce any other right or obligation that would otherwise exist as to any party or person described herein. In the event that any indemnity provisions herein are contrary to applicable law, then such indemnity obligations shall be construed to apply to the fullest extent allowed by applicable law.

5. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY, OR ITS PARENT OR AFFILIATES, OR ANY OF ITS/THEIR DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, BE LIABLE HEREUNDER FOR ANY SPECIAL, RELIANCE, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMIT, FROM DAMAGES TO PROPERTY, FOR LOSS OF PROFITS, INCOME, USE OR TIME, WHETHER IN TORT, CONTRACT, OR OTHERWISE RESULTING FROM PERFORMANCE OR NON-PERFORMANCE HEREUNDER, AND WHETHER OR NOT IT/THEY KNEW OF THE POSSIBILITY THEREOF; PROVIDED, HOWEVER, THIS SECTION 5 SHALL NOT LIMIT SELLER'S OBLIGATIONS UNDER SECTIONS 4 OR 12.

6. Unless otherwise expressly agreed in writing by Buyer, Seller shall not, and shall not authorize any other party to, use, modify, reproduce or replicate any trademark, logo or trade name owned or claimed by Buyer ("Buyer Marks") in any way. Seller shall not contest Buyer's right of exclusive use of any Buyer Mark. Upon expiration or termination of the Order, Seller will remove and not thereafter use any sign, catalogue, brochure or other material (whether print or electronic) containing any Buyer Mark and Seller will, at Buyer’s option, immediately destroy or return to Buyer such material in its possession or under its control containing Buyer Marks. In addition, Seller agrees not to use any Buyer Marks in any promotional material, including without limitation, customer lists, advertisements, or press releases, without Buyer's advance written authorization.

7. The occurrence of any one or more of the following shall constitute an “Event of Default”: (i) delivery of services or Products failing to conform to any provision hereof (“Non-Conforming Products”); (ii) Seller’s breach or failure to perform its obligations hereunder; or (iii) Seller’s breach or misrepresentation of any representation or warranty herein. Upon an Event of Default, Buyer shall be entitled, but not required, to exercise any or all of the following: (i) for late delivery or performance, Buyer may extend the time therefore and/or require expedited shipping/services, and such Products/services shall be provided in the manner and per the timelines specified by Buyer, at Seller's sole cost; (ii) with respect to Non-Conforming Products, Buyer shall have all of the rights and remedies available under Sections 3 and 4 above; (iii) reject or revoke acceptance, as the case may be, of all or any portion of the shipment of Products containing any Non-Conforming Products; and/or (iv) exercise any other rights and remedies specified in the Order or otherwise available under applicable law. Buyer may exercise any one or more of the foregoing rights and remedies by notifying Seller of such intent. Buyer shall not be liable to Seller on account of exercising any such rights or remedies. Seller acknowledges and agrees that the occurrence of an Event of Default constitutes a substantial impairment of value to Buyer of the shipment at issue, the entire Order, and any other then pending Orders, so as to entitle Buyer to exercise any and/or all of the remedies specified herein, in the Order, and at law, and Seller hereby waives its right to cure the default in question, unless otherwise agreed in writing by Buyer. The making of or failure to make any inspection of or payment for the Products shall in no way impair Buyer’s right to reject Non-Conforming Products, nor be deemed acceptance by Buyer of the Products, nor affect in any way Seller’s obligations hereunder, notwithstanding Buyer’s opportunity to inspect the Products, Buyer’s knowledge of the non-conformity or defect, its substantiality or the ease of its discovery, nor Buyer’s earlier failure to reject the Products.

8. All questions pertaining to the validity, construction, execution and performance of the Order and the relationship of the parties hereto shall be construed and governed by the laws of Massachusetts and the USA, without giving effect to the principles of (i) comity of nations; or (ii) conflicts or choice of law provisions thereof, and the Order shall not be governed by the U.N. Convention on Contracts for the International Sale of Goods. Exclusive jurisdiction shall be in the appropriate state or federal court in the state of Buyer's principal place of business.

9. Seller certifies that it has an affirmative action policy ensuring equal employment opportunity without regard to, and that it maintains no employee facilities segregated on the basis of, race, color, national origin, sex, age, sexual orientation, religion or handicap, and that it is not debarred or suspended from being awarded Federal or Federally assisted contracts. If applicable, the following laws, orders and regulations, as amended, are hereby incorporated: Executive Order 11246; Vietnam Era Veterans Readjustment Act; Rehabilitation Act of 1973; Veterans Compensation, Education and Employment Act; 41 CFR 60-1.4 (Equal Employment Opportunity); 41 CFR 60-250.4 ⎯(Veterans Affirmative Action); 41 CFR 60-741.4 (Handicap Affirmative Action); 41 CFR 601.40 (Affirmative Action Plans); 41 CFR 601.7 (EE01 Reports); 41 CFR 61650 (Veterans Employment Reports). Seller certifies and warrants that it is and shall remain in compliance with all applicable anti-corruption and anti-bribery laws and that the Products are produced in compliance with the Fair Labor Standards Act of 1938, as amended, and the regulations and orders of the U.S. Department of Labor issued thereunder, and that each invoice it submits is correct and authentic and the only one issued for the Products at issue, and that all Products comply with the Occupational Safety and Health Act of 1970, as amended, and the applicable state plans approved under same, and the regulations thereunder, to the extent applicable. Seller shall notify Buyer in writing if Products are subject to laws or regulations relating to hazardous or toxic substances, or when disposed of, to regulations governing hazardous wastes, or to any other health, safety and/or environmental regulations. Seller shall furnish all appropriate shipping certifications, labeling in compliance with the Workplace Hazardous Materials Information System, Material Safety Data Sheets in compliance with the Workplace Hazardous Materials Information System, and instructions for shipping, safety, handling, exposure and disposal in a form sufficiently clear for use and actions to be taken by Buyer’s and its Customer’s non-technical personnel.

10. Without limiting Seller’s obligations or liabilities hereunder, Seller shall, on the date an Order is accepted and for a period of two (2) years thereafter, at its sole expense, purchase and maintain the following insurance coverage with carriers that have A.M. Best ratings of not less than A- and with a minimum financial rating of Class VII: (a) Commercial General Liability Insurance that covers all liabilities for bodily injury and property damages arising from the Products, services and/or the performance of an Order, with limits of liability of at least $5,000,000 for each occurrence and in the aggregate. Coverage must include Products/Completed Operations, Personal and Advertising Injury and Blanket Contractual Liability (CG 20 10 or its equivalent must be provided). Such CGL insurance may be maintained through any applicable combination of CGL and Excess/Umbrella Coverage; (b) Automobile Liability Insurance that covers all liabilities for bodily injury and property damages arising from the use of all owned, hired or non-owned vehicles, with limits of liability of at least $1,000,000 for each occurrence and in the aggregate; (c) Workers Compensation Insurance shall be statutory by state law and Employer's Liability Insurance with limits of liability of at least $1,000,000; (d) Product Liability Insurance that covers the Products with limits of liability of at least $5,000,000 in the aggregate; and (e) Technology Errors & Omissions Liability Insurance, with a minimum limit of $5,000,000 per claim and in the aggregate, covering all Products including failure of information technology security, data privacy breach and software copyright infringement (if coverage is on a claims-made basis, the policy must contain a retro date which precedes the effective date of the Order and continuity must be maintained for 1 (one) year following termination or expiration of the Order). All insurance coverage required herein for Seller shall extend to and protect Buyer and its subsidiaries, parent company and/or affiliates to the full amount of such coverage, and all deductibles and/or self-insured retentions (if any), including those related to defense cost, are the sole responsibility of Seller and, upon Buyer’s request, Seller shall disclose the same to Buyer. All policies, except the Workers' Compensation insurance, shall be endorsed to name Buyer, its parent and affiliated entities, and its/their directors, officers, employees, representatives, and agents, as an additional insured and such policies shall be endorsed to waive all express or implied rights of subrogation against Buyer, its parent and affiliated entities. The insurance coverage set forth above shall be primary to any liability insurance or other insurance carried by Buyer, its affiliates or parent and Buyer's, its affiliate’s and parent’s other insurance shall be excess and non-contributory for claims and losses arising out of the performance of an Order. Seller shall provide a coverage endorsement for each category of insurance required above, except for Workers' Compensation, which includes a cross-liability clause, stating that the Seller and Buyer shall each be considered as a separate entity. The policies shall not be canceled, terminated or materially reduced without thirty (30) days' advance written notice to Buyer. Seller shall provide Buyer with a Certificate of Insurance evidencing the above-required types and amounts of insurance coverage and other requirements prior to selling Products and providing services to Buyer and on an annual basis thereafter. Failure of the Seller to provide Buyer the Certificate of Insurance or failure of Buyer to specifically request such certificate, shall in no way limit or release the Seller of its obligations or liabilities under this Section 10. In the event the Seller or its insurance carrier defaults on any obligation hereunder, Seller agrees that it will be liable for all reasonable expenses and attorneys' fees incurred by Buyer or its affiliates to enforce the provisions hereunder.

11. Unless Buyer and Seller are currently entered into a separate, written agreement that specifically governs their business relationship and the subject matter of the Order, and unless that written agreement specifically contains a merger clause that addresses conflicting terms and conditions in purchase orders, invoices, etc., then these T&Cs constitute the entire agreement and understanding between the parties, and supersede and replace all prior negotiations and agreements, proposed or otherwise, whether written or oral, concerning the subject matter hereof. No course of dealing, usage of trade or course of performance shall be relevant to explain, supplement or modify any express provision of these T&Cs.

12. Buyer may disclose Confidential Information (as defined below) to Seller in connection with its purchase of Products and services from Seller. Seller shall not disclose any Confidential Information or any portion thereof to any person or entity and shall only use such Confidential Information to fulfill its obligations hereunder, it being understood that such Confidential Information provides Buyer with a competitive advantage in its trade because it is not generally known or available to the public. In that regard, Seller acknowledges and agrees that Buyer has taken and is taking reasonable steps to protect the confidentiality of, and its legitimate interests in, the Confidential Information. The term "Confidential Information" means information concerning Buyer’s business, personnel, data, financial and marketing plans, intellectual property rights (including, without limitation, patents, trademarks, copyrights and trade secrets), forecasts, strategies and statements, and Customer related information. To the extent allowed by law, Seller shall notify Buyer in writing in advance of any disclosure of Confidential Information required by law, court or administrative order.

13. All notices permitted, required or provided for herein shall be made in writing, and shall be deemed adequately delivered if delivered by hand, certified mailing in the U.S. mail with return receipt requested, or by a recognized courier service that regularly maintains records of its pick-ups and deliveries, to the parties at their respective addresses, as set forth on the face of the Order or as otherwise designated by a party hereto. Any waiver of any of the provisions herein or of any inaccuracy in or non-fulfillment of any of the representations, warranties or obligations hereunder or contemplated hereby, shall not be effective unless made in writing and signed by the party against whom the enforcement of such waiver is sought. Any provision of these T&Cs that is deemed invalid or unenforceable in any jurisdiction shall, as to such jurisdiction only, be ineffective only to the extent of such invalidity or unenforceability, without rendering invalid or unenforceable or otherwise affecting the remaining terms and provisions hereof. Neither party may assign or otherwise delegate any of its rights or obligations hereunder without the prior written consent of the other party, which consent will not be unreasonably withheld, delayed or conditioned; provided, however, Buyer shall have the right to assign Orders without Seller’s consent to an affiliate of Buyer. The provisions hereof that by their nature are intended to survive the termination, cancellation, completion or expiration of the Order shall continue as valid and enforceable obligations of the parties notwithstanding any such termination, cancellation, completion or expiration. To the maximum extent permitted by applicable law: (i) Seller's warranties are fully enforceable by Buyer and its Customers (as intended third-party beneficiaries); and (ii) the indemnities provided hereunder are fully enforceable by Buyer and/or any or all of the other indemnitees identified above in Section 4.

14. Seller represents and warrants that it will at all times comply with all applicable laws and regulations, including trade, economic, and financial restrictions, trade embargoes, and any amendments thereto (for purposes of this Section 14, collectively the “Laws”) imposed by any applicable governmental authority, including where applicable, the United States and the European Union. Buyer shall not be liable, and Seller agrees to indemnify, defend, and hold harmless Buyer, for any breach of such Laws and for all claims, liabilities, costs (including attorneys’ and experts’ fees and court costs), damages, and penalties associated therewith or arising therefrom. Seller shall take all actions necessary to ensure that its suppliers, subcontractors, materialmen, and other business partners (i) comply with applicable Laws; and (ii) do not cause Buyer to violate applicable Laws. If applicable, Seller undertakes to timely provide all information and documentation necessary for export, shipment, and import. Buyer shall not be liable, and Seller shall indemnify, defend, and hold Buyer harmless, for delays and any other losses, including liquidated damages assessed against Buyer, arising or resulting from Seller’s failure to timely deliver Products and/or provide accurate information and documentation, export/import reviews, or any related permitting procedures. To the extent permitted by law, Seller shall, promptly upon becoming aware, provide to Buyer details of any claim, action, suit, proceedings or investigation against it with respect to Laws brought by any enforcement authority. In the event that Buyer should believe, acting in good faith, that Seller has violated, or is under investigation for violating, any Laws, or if Seller is identified on any applicable sanctions list, Buyer shall have the immediate right to terminate its relationship and/or any contract with Seller without liability.

Appendix 
Cyber Security Requirements

1. Seller shall ensure all Products have been developed in accordance with principles of secure software development consistent with software development industry best practices, including, but not limited to, security design review, secure coding practices, risk-based testing and remediation requirements. Seller must use reasonable measures to secure the software development environment of the Products from unauthorized access.

2. Seller shall include cyber security guidance in the Product documentation provided to Buyer. This documentation shall include guidance on how to configure the Products and/or the surrounding environment to best ensure security. It shall also include guidance on which logical or physical ports are required for the Product to function. If authentication is used to protect access to any service or capability of the Products, regardless of the intended user of that service/capability, the Seller shall ensure:

   1. the Products shall not provide access to that service or capability using a default account/password;

   2. the Products shall not provide access to that service or capability using a “Backdoor” account or password;

   3. the Products’ associated authentication and password change processes shall be implemented with an appropriately secure cryptographic level;

   4. Buyer shall be able to change any passwords supported by the Products.

3. In the event that any wireless technology is incorporated in any Product, Seller shall document that the wireless technology complies with standard operational and security requirements specified in applicable wireless standard(s) or specification(s) (e.g., applicable IEEE standards, such as 802.11).

4. In the event that any cryptographic systems are contained in the Product, Seller shall only use cryptographic methods that are “Approved” as defined in the Federal Information Processing Standard (FIPS) Security Requirements for Cryptographic Modules (FIPS 140-2), and Seller shall provide an automated remote key-establishment (update) method that protects the confidentiality and integrity of the cryptographic keys.

5. Seller must develop and maintain an up-to-date Cyber Security Susceptibility management plan designed to promptly identify, prevent, investigate, and mitigate any Cyber Security Susceptibilities and perform any required recovery actions to remedy the impact. “Cyber Security Susceptibility (ies)” is defined as any bug, software defect, design flaw, or other issue with software associated with a Product that could adversely impact the confidentiality, integrity or availability of information or processes associated with the Product.

6. Seller shall notify Buyer within a reasonable period, in no event to exceed five (5) business days after discovery, or shorter if required by applicable law or regulation, of any potential Cyber Security Susceptibility. Seller shall report any Cyber Security Susceptibility to Buyer. Within a reasonable time thereafter, Seller shall provide Buyer, free of charge, with any upgrades, updates, releases, maintenance releases and error or bug fixes necessary to remediate any Cyber Security Susceptibility. Seller shall reasonably cooperate with Buyer in its investigation of a Cyber Security Susceptibility, whether discovered by Seller, Buyer, or a third party, which shall include providing Buyer a detailed description of the Cyber Security Susceptibility, the remediation plan, and any other information Buyer reasonably may request concerning the Cyber Security Susceptibility, as soon as such information can be collected or otherwise becomes available. Buyer or Buyer’s agent shall have the right to conduct a cyber security assessment of the applicable Products, and the Product development lifecycle, which includes tests intended to identify potential Cyber Security Susceptibilities. Seller shall designate an individual responsible for management of the Cyber Security Susceptibility and shall identify such individual to Buyer promptly.

7. Seller represents, warrants and covenants that all open source software contained within the Products are and shall be in material compliance with the terms and conditions of the applicable licenses governing their use, and the Products or the use thereof by Buyer shall not cause Buyer or Buyer’s intellectual property rights to be subject to the terms or conditions of a copyleft license, or require Buyer to fulfill any open source license obligations for any open source software contained within the Products.

8. Seller represents, warrants, and covenants that the Products shall be free of viruses, malware, and other harmful code (including, without limitation, time-out features) which may interfere with the use of the Products regardless of whether Seller or its personnel purposefully placed such code in the Products. In addition to exercising any of Buyer’s other rights and remedies under the Order or otherwise at law or in equity, Seller shall provide Buyer, free of charge, with any and all new versions, upgrades, updates, releases, maintenance releases, and error or bug fixes of the Products (collectively, “Revised Code”) which prevents a breach of any of the warranties provided under the Order or corrects a breach of such warranties. Revised Code contained in the Products constitutes Products for purposes of the Order.