MASTER TERMS AND CONDITIONS OF SALE
Contents
1. within thirty 30 days of receipt of the returned Products If any warranty return claim is made for such discontinued Products then such claims will be subject to the same warranty obligations for non discontinued Products 18 Right to Sell Products You warrant that you have the necessary right title and interest to provide the Products to UEI free of liens and encumbrances and otherwise in accordance with this Agreement including without limitation free from liability of royalties mechanics liens or other encumbrances You further warrant that no law rule or ordinance of the United Purchase Order Terms and Conditions States a state or any other governmental agency has been or will be violated in supplying the Products ordered under this Agreement 19 Hazardous Materials If Products provided hereunder include hazardous materials you represent and warrant that you shall provide written notice to UEI where such notice contains sufficient details to ensure UEI understands the nature of and hazards associated with the handling transportation and use of such hazardous materials 20 Ownership of UEI Supplied Materials Any specifications drawings schematics technical information data tools dies patterns masks gauges test Product and other materials furnished to you by UEI shall i remain or become UEl s property ii be used by you exclusively for UEI s orders iii be clearly marked as UEI s property iv be segregated2. MASTER TERMS AND CONDITIONS OF SALE Edit Date June 19 2008 SUPPLIER PROVIDED GOODS CAREFULLY READ THE FOLLOWING LEGAL AGREEMENT BETWEEN YOUR COMPANY You or Your AND UNITED ELECTRONIC INDUSTRIES INC UEI By shipping any of your products each a Product described in any UEI purchase order you are agreeing that these Master Terms and Conditions of Sale the Agreement shall be the only terms and conditions applicable to all orders UEI submits to you UEI s purchase orders can be accepted only on these terms and conditions If you do not agree to the terms of this Agreement you shall not proceed with shipping any Products or if you have already shipped the Products issue a refund of the fees paid by UEI for the Products UEI shall not be bound by any additional inconsistent and or conflicting provisions in any purchase order release acceptance or other written correspondence from you unless expressly agreed to in writing by UEI Orders for Products shall each be deemed separate contracts for the purpose of these terms and conditions 1 Order Acceptance All orders shall be subject to acceptance by you Such acceptance shall be deemed to occur if you a you confirm acceptance of such order in writing b fail to reject UEl s purchase order within five 5 days of receipt or c you ship the Products 2 Prices Unless mutually agreed otherwise by the parties the price of the Products shall be that set forth in UEI s p
3. ayment obligations will immediately become due in accordance with the original payment terms set forth in this Agreement Sections 21 22 23 24 25 26 and 27 shall survive any termination of this Agreement 27 General Provisions 27 1 Import Export Compliance You agree to comply strictly and fully with all import and export controls and regulations imposed on the Products by the US and any country or organization or nations within whose jurisdiction you operate or do business 27 2 Independent Contractor You are and at all times shall be an independent contractor in all matters relating to this Agreement You shall not enter into any agreement contract or arrangement with any government or government representative or with any other person firm corporation entity or enterprise imposing any legal obligation or liability of any kind on UEI 27 3 Assignment You shall not assign this Agreement or transfer any of the rights or obligations arising under this Agreement without the prior written consent of UEI This Agreement shall be binding upon and inure to the benefit of the successors and permitted assigns of the parties 27 4 Publicity You shall not make any public announcements related to the sale of the Products to UEI without the prior written approval of UEI 27 6 Governing Law Dispute Resolution This Agreement will be governed by the construed according to the laws of California without regard to that body of law contro
4. cease all related work and at the request of UEI Except in the case of a Product or Custom Product as defined below includes UEI intellectual property you shall wherever possible place such products in process in your inventory and sell it to other customers 15 Cancellation of Customized Products Notwithstanding anything to the contrary in Section 14 if the order is for Products which are custom engineered non standard or customer specified each a Custom Product then the cancellation charge shall be equal to the fees and expenses you actually incur in reliance on such order where the applicable Products or parts for which you have paid cannot be diverted to your other customers If the Custom Product includes UEI intellectual property the parties shall mutually determine if the Custom Product can be modified disassembled or otherwise rendered so as to remove UEIl s intellectual property in a commercially reasonable manner If removal of UEI s intellectual property is determined to be commercially reasonable you shall perform such removal and place the remaining work in process in your inventory for sale to your other customers All portions of a Custom Product embodying UEl s intellectual property shall be provided to UEI and the parties shall mutually agree on compensation to be paid to you for such portions 16 Payment of Cancellation Charges Any claim for cancellation charges much be submitted to UEI in writing where such wr
5. de on the date of mailing of UEI s check 12 Taxes All prices under this Agreement shall include all applicable taxes including but not limited to sales use taxes transaction privilege taxes gross receipts taxes and other charges such as duties customs tariffs imposts and government imposed surcharges shall be stated separately on your invoice You shall remit all such charges to the appropriate tax authority unless UEI provides sufficient proof of tax exemption If any applicable law requires UEI to withhold amounts from any payments to you under this Agreement i UEI shall effect such withholding remit such amounts to the appropriate taxing authorities and ii the sum payable by UEI upon which the deduction or withholding is based shall be reduced by an amount equal to the amounts so withheld United Electronic Industries Inc 27 Renmar Ave Walpole MA 02081 2 4 13 Rescheduling of Orders Prior to shipment by you UEI may request a change in the shipment date for Products under an order by submitting a written reschedule request to you at no charge to UEI 14 Cancellation of Standard Products UEI may at no charge and for any reason cancel an order or portion thereof for standard Products upon written notice to you Upon your receipt of such notice you shall unless otherwise specified in such notice immediately stop all work hereunder give prompt written notice to and cause all of your vendors or subcontractors to
6. duct within sixty 60 days of receipt of the same Notwithstanding the foregoing if due to no fault of UEI a Product does not pass Product Acceptance Criteria within one hundred twenty 120 days of delivery UEI may give written notice to you of failure to meet such acceptance criteria on time If the Product does not meet the Product Acceptance Criteria within fourteen 14 days of such notice UEI may at UEl s option a return the Product to you at your expense for full credit or b have the Product replaced with a new Product within one hundred twenty 120 days of UEI s written election of such option Acceptance by UEI shall in no event apply to latent defects and or constitute a waiver of UEl s rights and remedies with regard to any subsequently discovered defect or nonconformity Printed Circuit Board PCB suppliers UEI will have one hundred and twenty days 120 to accept and test any printed circuit board products In the event UEI finds any PCB defects and is able to prove that the source of the defect is the PCB you will be responsible for reimbursing UEI the cost of the PCB raw materials assembly costs and test calibration costs for these defective products 7 License You hereby grant and agree to grant to UEI a royalty free irrevocable worldwide fully paid up license to practice all applicable patent copyright moral right mask work trade secret and other intellectual property rights embodied in any Products UEI sha
7. duration of the applicable warranty 9 Exceptions and Exclusions The warranties set forth in Section 8 exclude any coverage for Products that are defective because of a any use not in material conformance with the user manual and or any accident disaster abuse misuse negligence transportation damage alteration or repairs or activities caused by any party other than you b failure of an Product caused by a product which you did not recommend provide or otherwise authorize in Product Acceptance Criteria or applicable end user documentation or for which you are not responsible under this Agreement provided however in no event shall you be responsible for the proper operation use and or failure of a recommended product itself or c failure to provide a suitable installation or operating environment as such environment is set forth in the applicable Purchase Specification EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT NEITHER PARTY MAKES ANY OTHER WARRANTIES EXPRESS IMPLIED STATUTORY OR OTHERWISE REGARDING THE PRODUCTS ALL IMPLIED WARRANTIES AS TO SATISFACTORY QUALITY PERFORMANCE MERCHANTABILITY FITNESS FOR PARTICULAR PURPOSE OR NON INFRINGEMENT OF THIRD PARTY RIGHTS ARE EXPRESSLY DISCLAIMED 10 Return Procedures Products shall be non returnable except as expressly provided in this Agreement If returnable UEI shall obtain a return material authorization RMA from you prior to any return of a Product UEI shall return th
8. e Products with the RMA form to your designated repair facility with a written statement describing the Product Defect or other non conformity You will be responsible for all shipping costs which shall include payment by UEI of all duties taxes and customs clearance of repaired or replacement units of Product to UEI and will bear the risk of loss of such Products while in transit and any other costs reasonably associated with the non conforming Product such as the cost to de install the Product Replacement Products will be warranted for the remaining warranty period of the original Product Products returned to you may be repaired or replaced by UEI on a unit forunit basis If a Product is not eligible under warranty any repair or replacement of such Product authorized by UEI shall be deemed a Service and only subject to the Services terms and conditions set forth in this Agreement 11 Payment Terms UEI shall pay all invoices issued under this Agreement within sixty 60 days from date of invoice UEI may at any time set off any amount owed by UEI to you against any amount owed by you or any of your affiliated companies to UEI If UEI is entitled to discount on fees owed based and such discount will be calculated from i the scheduled delivery date ii the date of actual delivery or iii the date an acceptable invoice is received whichever is the latest For purposes of earning such advance payment discount payment shall be deemed to be ma
9. extent that any such disclosure is necessary 23 Indemnity Obligations 23 1 Your Indemnification Obligations You shall indemnify and hold UEI harmless from any and all costs expenses including reasonable attorneys fees losses damages or liabilities actually incurred in any suit or proceeding brought against UEI or its customers by a third United Electronic Industries Inc 27 Renmar Ave Walpole MA 02081 3 4 party insofar as such suit or proceeding is based on i a claim that any Product infringes on any patent copyright trademark maskwork or other intellectual property right of a third party or that you misappropriated any third party trade secrets in the development thereof ii a claim which if true would constitute a breach of Section 18 iii resulting in the death or bodily injury to any person destruction or damage to any property iv contamination of or adverse effects on the environment and any clean up costs in connection therewith or v any violation of governmental law regulation or orders to the extent that a claim covered by sub sections i ii and or iii results from a your breach of any term or provision of this Agreement or b dangerously defective Products 23 2 Additional Obligations If an injunction issues as a result of any claim or action you agree at its sole cost and expense either i procure for UEI the right to continue using Products ii replace the Products with non infr
10. he obligations of the parties hereunder shall not apply to any materials or information which the receiving party can demonstrate through documented evidence i is now or hereafter becomes through no act or failure to act on the part of the receiving party generally known or available ii is known by the receiving party at the time of receiving such information as evidenced by its records iii is hereafter furnished to the receiving party by a third party as a matter of right and without restriction on disclosure iv is independently developed by the receiving party without use of any of the other party s Confidential Information or v is the subject of a written permission to disclose provided by the disclosing party Disclosures of Confidential Information shall not be precluded if such disclosure is a in response to a valid order of a court or other governmental body of the United States or any political subdivision thereof provided however that the responding party shall first have given notice to the other party hereto in order that such other party may obtain a protective order requiring that the Confidential Information so disclosed be used only for which the order was issued and the responding party uses reasonable efforts to have such information be treated as confidential and under seal b is otherwise required by law or c is otherwise necessary to establish rights or enforce obligations under this Agreement but only to the
11. inging Products or iii modify the Products so they become non infringing If you determine that the foregoing are neither commercially practicable or feasible UEI may at its option return the Product at your sole cost and expense and you shall refund to UEI the purchase price of the Product 23 3 Exceptions Your obligations pursuant to this Section 23 1 shall not apply where i Custom Items are manufactured to UEI s detailed design and such design is the cause of the claim or ii there is an addition to or modification of the Products by any party other than you after delivery of such Product to UEI where such addition or modification is the cause of the claim 23 4 UEI s Indemnification Obligations UEI shall indemnify and hold you harmless from any and all costs expenses including reasonable attorneys fees losses damages or liabilities actually incurred in any suit or proceeding brought against you by a third party insofar as such suit or proceeding is based on a claim that i your compliance with or use of any designs specifications and or intellectual property UEI provides to you under this agreement and ii items produced utilizing the Products furnished to you under this Agreement 23 5 Procedural Requirements Each party s indemnification obligations under this Section 23 shall be subject to the indemnitee i promptly informing the indemnitor of such suit or proceeding and furnishing to the indemnitor a copy of each c
12. ith this Section Either party may terminate this Agreement at any time upon i the other party s bankruptcy insolvency or receivership or ii any material default by the other party of this Agreement not cured within thirty 30 days after such party receives written notice thereof 26 Obligations Upon Termination Upon any expiration or termination of this Agreement the following shall apply i each party shall within five 5 days deliver to the other party all of that other party s Confidential Information and copies thereof in its possession power custody or control or at the other party s option destroy such and provide a certificate supporting such destruction Notwithstanding the above each party shall be permitted to retain a limited number of copies of the other party s Confidential Information as reasonably necessary to allow the other party to exercise or fulfill its rights set forth in this Section 25 ii UEI shall be entitled to a cancel all or part of any orders received from UEI after notice but prior to the effective date of termination b cancel the shipment of any Products ordered by UEI that have not yet been shipped at the time of such notice and or c require your performance of any outstanding orders in accordance with all terms applicable to the sale of the Product to UEI notwithstanding the fact that delivery dates for such orders may extend beyond the effective date of termination and iii any and all p
13. iting includes reasonable documentation supporting the fees and expenses you seek recovery of along with a summary of all mitigation efforts within fifteen 15 days after receipt of UEI s cancellation notice You acknowledge and agree the cancellation charge shall be your sole and exclusive remedy with respect to any cancelled purchase order Upon payment of the applicable cancellation fee UEI shall at its option be entitled to all work in progress and materials for which the cancellation charge applies Notwithstanding anything to the contrary you shall not be compensated in any way for any work done after receipt of UEl s cancellation notice nor for any costs incurred by your vendors or subcontractors after you receive such notice nor for any costs you could reasonably have avoided nor for any of your indirect overhead and administrative charges or profit In no event shall such claim exceed the original purchase price of the Product 17 Discontinuation of Product You will notify UEI in writing of the planned obsolescence of any Product or Product revision and will make that Product available to UEI for a minimum of one 1 year after the notice During that time UEI will have the option to place a final order for such Product for delivery after the notice UEI may return unused obsolete Products within one hundred eighty 180 days after written notification of revision or obsolescence at no cost You shall credit UEI the full purchase price
14. ll also be entitled to license UEI s customers to use all such intellectual property rights during the operation of UEl s products UEI agrees that it will not attempt to decompile reverse engineer or disassemble the Products in whole or in part 8 Limited Warranty on Products You warrant to UEI that each Product will a perform without Product Defects as defined below b be free from defects in material and workmanship and c be new of the grade and quality specified You further warrant that the Products will not infringe any third party s intellectual property rights If a Product has a Product Defect and UEI reports such Product Defect to you prior to the expiration of the warranty period then you shall repair which may include a workaround for the Product Defect or replace the Product or in the event you determine in your good faith that neither of the foregoing are commercially feasible refund the fees paid by UEI for such Product Seller shall perform required repairs until such time as the Product meets Product Acceptance Criteria Product Defect as used in this Agreement means a failure of a Product to operate in conformance with the Product Acceptance Criteria All of the warranties Purchase Order Terms and Conditions set forth in this Agreement and all rights associated therewith shall survive any delivery inspection acceptance payment relocation resale lease or other transfer or reuse of the Products for the
15. lling conflicts of law The parties agree that the United Nations Convention on Contracts for the International Sales of Goods is specifically excluded from application to this Agreement Except as expressly agreed to otherwise by the parties in writing in the event of any dispute or claim arising out of this Agreement the parties hereby submit to the jurisdiction of the federal and state courts located in Boston Massachusetts 27 5 Notices All notices or reports permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery telegram telex telecopier facsimile transmission or by certified or registered mail return receipt requested and shall be United Electronic Industries Inc 27 Renmar Ave Walpole MA 02081 4 4 deemed given upon personal delivery five 5 days after deposit in the mail or upon acknowledgment of receipt of electronic transmission Notices to UEI shall be sent to UNITED ELECTRONIC INDUSTRIES Inc 27 Renmar Avenue Walpole MA 02081 Attention General Counsel Fax 781 821 2891 Notices to you shall be sent to the remit payment to address set forth in your order confirmation Either party may change its address by giving written notice of such change in the manner provided 27 6 Waiver Severabilitv No waiver will be implied from conduct or failure to enforce rights and no waiver will be effective unless in writing signed on behalf of the party against whom
16. ommunication notice or other action relating thereto ii giving the indemnitor the sole to control the defense of any such claim iii giving the indemnitor reasonable assistance necessary to settle or litigate such suit or proceeding at the indemnitor s expense and iv not settling or agreeing to settle any such suit or proceeding without the prior written consent of the indemnitor 23 6 Remedies The obligations set forth in this Section 23 state each party s sole and exclusive remedies as an indemnitee and each party s sole and exclusive liabilities as an indemnitor with respect to those the third party claims expressly set forth in this Section 23 24 Limitation of Liability Except in connection with a breach of Section 22 or fulfilling a party s obligations arising under Section 23 IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL INCIDENTAL CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS AND LOST SAVINGS HOWEVER CAUSED WHETHER FOR BREACH OF CONTRACT TORT NEGLIGENCE OR OTHERWISE WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES UEI S TOTAL LIABILITY TO YOU ARISING FROM OR IN RELATION TO THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL AMOUNTS PAID BY UEI TO YOU UNDER THIS AGREEMENT Purchase Order Terms and Conditions 25 Term and Termination The term of this Agreement shall continue unless terminated in accordance w
17. the waiver is asserted If any part of this Agreement is found invalid or unenforceable that part will be enforced to the maximum extent permitted by law and the remainder of this Agreement will remain in full force 27 7 Force Majeure Neither party shall be responsible for its failure to perform due to causes beyond its reasonable control such as acts of God fire theft war riot embargoes or acts of civil or military authorities If delivery of Products is to be delayed by such contingencies you shall immediately notify UEI in writing If the delay is greater than thirty 30 days from the date of the notice UEI will have the option in its sole discretion to either i extend time of delivery or performance or ii terminate the uncompleted portion of the order at no cost of any nature to UEI 27 8 Entire Agreement This Agreement represents the entire agreement between the parties relating to its subject matter and supersedes all prior or contemporaneous representations discussions and agreements whether written or oral This Agreement may be amended or supplemented only by a writing that refers explicitly to this Agreement and that is signed on behalf of both parties Purchase Order Terms and Conditions
18. to ensure the safe arrival of the Products to the named destination You shall mark all containers with necessary lifting handling unpacking and shipping information UEI purchase order number and an itemized packaging list for all contents contained in the applicable package 6 Acceptance of Products UEI shall advise you as soon as commercially practicable if a Product fails to substantially conform with the applicable specifications for such Product whether such specifications are mutually agreed to by the parties in writing or in the alternative are your standard end user documentation for such Product the Product Acceptance Criteria If UEI determines in good faith that a Product fails to substantially conform with the Product Acceptance Criteria then UEI agrees to provide you with written notice thereof and such notice shall include a reasonably detailed description of the nature of the problem You will correct the problem as soon as commercially practicable and promptly notify UEI when the problem has been corrected and UEI shall advise you as soon as commercially practicable whether the Product now substantially conforms with the Product Acceptance Criteria The parties shall continue this process until such time that UEI accepts the Product in accordance with this Section UEI shall be deemed to accept a Product only if it a confirms in writing its acceptance of such Product or b fails to notify you of a problem with such Pro
19. urchase order in effect at the time you accept UEI s order All prices are in U S dollars Prices do not include freight insurance or other similar charges Any such charges will be added to the price or separately invoiced to UEI Throughout the term of this Agreement you warrant to UEI that the prices set forth in this Agreement in conjunction with the discounts offered herein for any similar item or equivalent service reflect your lowest price charged any of your customer for that Product regardless of any special terms conditions rebates or allowances of any nature If you sell any similar Product to any other customer at a price lower than the price set forth in this Agreement you shall adjust UEl s price to achieve and maintain the lower price for all future invoices for such Product In addition UEI may adjust the prices for any Product invoiced by you and unpaid by UEI to achieve the lower price In the event you offer a lower price for any similar Product either as a general price drop or to specific customer s for any reason you shall immediately notify UEI of price change s and adjust UEI s price to meet the new pricing structure 3 Shipment of Products You agree that timely delivery of conforming Products in full quantities specified in UEI s purchase order is of the essence to UEI As such You agree to exert every reasonable effort including overtime and premium shipment at your expense to meet the promised delivery date pro
20. vided that failure to achieve timely delivery despite use of such efforts shall not relieve you of liability for failure to meet the designated delivery date You agree to notify UEI immediately if at any time it appears that the delivery schedule set forth in a purchase order may not be met Such notification shall include the reasons for possible delays steps being taken to remedy such problems and a proposed new delivery date 4 Delivery Terms Delivery of Products shall be EX WORKS destination Unless expressly stated otherwise in the purchase order you may in your reasonable discretion select which carrier you will use to transport the Products to UEI via the most cost effective carrier based upon UEI s required delivery date UEI may revise shipping instructions as to any unshipped Products upon written notice to you You shall maintain insurance against loss or damage in transit to the delivery destination and UEI shall not be required to assert any claims against common carriers for any such loss or damage Title to the Products and the risk of loss of or damage to the Products ordered by UEI will pass to UEI upon UEI s receipt of the applicable Products United Electronic Industries Inc 1 4 5 Packaging Requirements You shall pack and ship all Products in compliance with the instructions set forth on UEl s drawings for such Products and all applicable transportation regulations good commercial practice and in a manner adequate
21. when not in use v be kept in good working condition at your expense and vi be shipped to UEI promptly on UEl s demand or upon termination or expiration of this Agreement whichever occurs first You will treat any such property furnished by UEI to you that is marked or otherwise noted by UEI as being confidential information in accordance with this Agreement You shall be liable for any loss of or damage to UEI s property while in your possession or control ordinary wear and tear excepted 21 Ownership of Products Except with respect to title to the tangible Products and any UEI intellectual property embodied therein you shall retain all rights title and interest in the Products including all intellectual property embodied therein Products purchased hereunder with UEI s specifications or drawings shall not be quoted for sale to third parties without UEl s prior written consent 22 Confidentiality Obligations Each party may be exposed to certain information concerning the other party s products and or services which are confidential and proprietary information of such party herein Confidential Information Each party agrees to exercise at least reasonable care with respect to the other party s Confidential Information Each party agrees not to disclose to any third party any Confidential Information of the other party You further agree not to use UEI s Confidential Information for any purpose not specified in this Agreement T
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