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MicroSense, LLC Purchase Order Terms and Conditions



1. AGREEMENT OF THE PARTIES. These terms and conditions are the exclusive and binding agreement between MicroSense LLC ("Buyer") and the entity to whom this order is addressed, or who performs pursuant to this order ("Seller") relating to the purchase of the products or services ordered. Any acknowledgement and/or commencement of performance by Seller shall be deemed acceptance of these terms and conditions in full. BUYER HEREBY OBJECTS TO ALL ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS PROPOSED BY SELLER BY QUOTATION, ACKNOWLEDGEMENT OR OTHERWISE, WHETHER PREVIOUS, CONCURRENT OR SUBSEQUENT HERETO. PAYMENT FOR OR ACCEPTANCE OF PRODUCTS DELIVERED HEREUNDER SHALL NOT BE DEEMED TO BE AN ASSENT TO SELLER'S TERMS AND CONDITIONS. No change, modification or revision of this order shall be effective unless in writing and signed by Buyer's duly authorized purchasing representative or officer. This order represents the entire agreement between the parties relating to its subject matter and supersedes all prior representations, discussions, negotiations and agreements, whether written or oral.

2. INVOICES. Seller shall deliver written invoices to Buyer in duplicate and shall include the following information: Buyer's purchase order number, product model number, description of products, sizes, quantities, unit prices, and extended totals in addition to any other information specified elsewhere herein. Bill of Lading or other shipping documentation shall accompany each invoice. Payment of any invoice shall not constitute acceptance of any products or services or other failure of Seller to meet the requirements of the order. Buyer may at any time set off any amount owed by Buyer or its affiliated companies to Seller against any amount owed by Seller or any of its affiliated companies to Buyer. Buyer reserves the right to pay in United States dollars.

3. CASH DISCOUNTS. If Seller offers a discount for prompt payment, discounts will be computed from the latest of: (a) the scheduled Delivery date; (b) the date of actual Delivery; or (c) the date a properly filled out original invoice and packing list is received by Buyer. Payment is deemed to be made, for the purpose of earning the discount, on the date of mailing of Buyer's check.

4. TAXES AND EXPENSE. The prices set forth in this order include all applicable foreign, federal, state and local taxes and miscellaneous charges including but not limited to sales, gross receipts and use taxes, ad valorem (property) taxes, duties, customs, tariffs, forwarding agent's fees, imposts and surcharges (together, "Taxes"). All such Taxes shall be stated separately on Seller's invoice. Buyer shall have no obligation or liability for, and Seller agrees to indemnify, defend, and hold Buyer harmless for any liability for Taxes, as well as the collection or withholding thereof, including all penalties and interest.

5. OVERSHIPMENTS. Buyer reserves the option to refuse or to return at Seller's expense any shipments of products either in excess of the amount, or in advance of the schedule, stated on the face of this order. Any such shipments which Buyer elects not to take will be held at Seller's risk and expense including reasonable storage and other charges while awaiting Seller's shipping instructions.

6. PACKING AND SHIPMENT. Unless otherwise specified by Buyer in writing, all products shall be packed, packaged, marked, and otherwise prepared for shipment in a manner which is (i) in accordance with good commercial practice and ISTA 1G/1H standards, (ii) acceptable to common carriers for shipment at the lowest rate for the particular products and in accordance with all tariffs, governmental laws and regulations and (iii) adequate to insure safe arrival of the products at the destination designated in this order and for storage and protection against weather. Seller shall mark all containers with necessary lifting, handling and shipping information and also purchase order numbers, date of shipment and the names of the consignee and consignor. An itemized packaging sheet must accompany each shipment unless otherwise specified by Buyer in writing.

7. WARRANTY. (a) Seller warrants that all products delivered to Buyer, including all components and raw materials incorporated herein, as well as products corrected under this warranty (i) shall be free from defects in workmanship, materials and manufacture; and (ii) shall comply with and conform to (A) the requirements of this contract, (B) any drawings or specifications incorporated herein or submitted to Buyer, (C) any samples furnished by Seller, (D) documentation and specifications published by Seller, and (E) any response by Seller to a request for proposal or similar inquire by Buyer; and (iii) comply with all applicable laws and regulations and generally recognized standards and codes; (iv) are new and not counterfeit, and (v) where design is Seller's responsibility, be free from defects in design. Seller also warrants that all services shall be provided at the highest professional standards. The foregoing warranties are in addition to all other warranties, whether expressed or implied, and shall survive any inspection, acceptance, and payment by Buyer. All warranties shall benefit and be enforceable by Buyer and its customers. (b) Seller represents and warrants that it has the full power and authority to grant the rights granted thereunder. Seller further represents and warrants that neither the products nor their content, promotion, advertisement, sale, distribution, use or other disposition, nor any service, will infringe or violate any copyright, patent, trade secret, trademark, right of publicity or privacy or other personal proprietary right of any third party or contain any defamatory, libelous or obscene matters. Seller further warrants that all products delivered to Buyer shall be free and clear of all liens and encumbrances and that Buyer shall have the quiet enjoyment thereof. (c) Seller warrants that it complies with all applicable local, national, and international standards and regulations for environment, health, and safety in the workplace, including the minimum recommended standards of basic labor rights of the United Nations International Labour Organization ("ILO"), including freedom of association, right to organize, abolition of forced labor, elimination of child labor, and equality and anti-discrimination rights, as found at www.ilo.org.

8. INSPECTION. (a) All products purchased thereunder shall be subject to inspection and test by Buyer to the extent practicable at all times and places during and after the period of manufacture and in any event, prior to acceptance. If inspection or test is made by Buyer at Seller's premises, Seller, without additional charge, shall provide all reasonable facilities and assistance for the safety and convenience of Buyer's inspectors. No inspection or test shall relieve the Seller from responsibility for defects or other failure to meet the requirements of this order. (b) Notwithstanding any prior inspections or payments thereunder, all products shall also be subject to inspection and acceptance at Buyer's plant within a reasonable time after delivery. Seller shall provide and maintain an inspection system which is acceptable to Buyer. Seller shall keep and maintain complete and accurate records of all inspection work, which records shall be available to Buyer during the performance of this order and for five years thereafter or such longer period as specified by Buyer. (c) Buyer may accept or reject shipments in accordance with its established lot inspection procedures. Where rejection of a shipment is appropriately based on Buyer's normal inspection level, the Buyer at its option and at Seller's cost may conduct an above normal level of inspection up to and including 100% inspection of such shipment.

9. CHANGES. Buyer may at any time by a written order and without notice to sureties or assignees, suspend performance thereunder, increase or decrease the ordered quantities, or make changes in any one or more of the following: (a) applicable drawings, designs or specifications; (b) method of shipment or packing; (c) place of delivery and/or (d) schedules, including time of delivery

If any such change causes a decrease in the cost of, or the time required for performance of this order, an equitable adjustment shall be made in the order price or delivery schedule, or both, as reasonably determined by Buyer.

10. DELIVERY. Time is expressly made of the essence in regard to the performance by Seller thereunder. Seller shall be liable for all excess transportation or other charges or costs resulting from failure to follow and meet Buyer's routing instructions and delivery schedules. No partial or complete delivery shall be made thereunder prior to the date or dates designated on this order unless Buyer has given prior written record.

11. TERMINATION OR SUSPENSION FOR CONVENIENCE. Buyer, in his sole discretion, may terminate or suspend the performance of work under this Agreement in whole or in part at any time by written notice to Seller. Upon receipt of such notice from Buyer, Seller shall take such action as Buyer may direct and Buyer agrees to accept an equitable settlement for any such termination, cancellation, or suspension as reasonably determined by Buyer, which settlement shall in no event exceed the remainder of the purchase price stated in this order.

12. DEFAULT OF SELLER. (a) If any products or services delivered thereunder do not fully meet the requirements of this order, Buyer may (i) require the Seller to promptly correct, at no cost to Buyer, any defective or nonconforming products and services by repair or replacement or reperformance, at the locations specified by Buyer, or (ii) exercise any other remedy or remedies provided by law or in equity.

13. WAIVER. The failure of Buyer to enforce at any time any of the provisions of this order, or to exercise any election or option provided herein, or to require at any time performance by the Seller of the provisions thereof, shall in no way be construed to be a waiver of such provisions, nor in any way to affect the validity of this order or any part thereof, or the right of Buyer thereafter to enforce each and every such provision. No acceptance, payment, inspection or failure to inspect, or approval of Seller's product or design or services, shall excuse Seller from any obligation or warranty under this order, even if a defect, non-conformity or other deficiency could or should have been observed or detected. A waiver by Buyer of any drawing or specification required for one or more of the products or a portion of the services shall not constitute a waiver of such requirements for the remaining products or services.

14. INDEMNITY. Seller shall indemnify, defend and hold Buyer and its directors, officers, employees and agents harmless from any claims, demands, liabilities, losses, damages, judgments and settlements, including all reasonable costs and expenses related thereto, including attorney's fees, directly or indirectly, arising from any claimed infringement or violation of any copyright, patent, trade mark or other intellectual property right with respect to the Products or any claimed breach of the warranty in Section 7(b), or from any act, omission or service of Seller or any of Seller's employees or agents. Buyer agrees to reasonably notify Seller of a claim covered by Section 14 and to cooperate at Seller's expense in the defense thereof.

15. NON-DISCLOSURE OF CONFIDENTIAL MATTER AND PUBLICITY. Products and services provided by Seller pursuant to Buyer's specifications or drawings shall not be offered or disclosed to others without the Buyer's prior written authorization. The following are confidential information of Buyer: Specifications, drawing, samples, and other data furnished by the Buyer; software; all information on Buyer's method of doing business, its customers and business plans; and all information marked "confidential," "proprietary" or the like. Seller agrees that all such confidential information shall remain Buyer's property, shall not be disclosed, shall be used only for purposes of this order and shall be promptly returned to Buyer upon request. Any publicity regarding this order (including pictures, descriptions or samples thereof) is prohibited except with Buyer's prior written approval.

16. CHANGES IN PROCESS OR METHOD OF MANUFACTURING. Seller agrees that it will not invoke any changes in process or method of manufacturing during the term of this order without Buyer's written consent. Seller further agrees that any contemplated changes in process or method of manufacturing will be submitted to Buyer in sufficient time to enable Buyer a reasonable opportunity in which to evaluate such changes.


18. NOTICES. All notices to be given or served thereunder shall be effective upon receipt at the address appearing on the face of this order, provided that notices to Buyer specify Buyer's authorized buying agent and Buyer's purchase order number.

19. CHOICE OF LAW. This order will be governed by and construed in accordance with the laws of the United States and the laws of the State of Massachusetts, excluding Massachusetts conflicts of law provisions. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this agreement.

20. GOVERNING LAW; CHOICE OF FORUM. The validity of this Agreement, the construction and enforcement of its terms, and the interpretation of the rights and duties of the parties shall be governed by the laws of the Commonwealth of Massachusetts, excluding the choice of law principles of that state and the United Nations Convention on Contracts for the International Sale of Goods. Any and all disputes arising under or in connection with this Agreement shall be adjudicated in the appropriate state or federal courts located in Boston, Massachusetts. Each party hereby irrevocably consents to the personal jurisdiction of such courts for purpose of the adjudication of any such dispute

21. SEVERABILITY. If any part of this order is found invalid or unenforceable, that part will be amended to achieve as nearly as possible the same economic effect as the original provision and the remainder of this order will remain in full force.

22. ASSIGNMENT. Buyer may assign this order or any right or obligation thereunder upon written notice to Seller. Seller may not assign this order or any right or obligation thereunder except upon the prior written consent of Buyer.

23. EXPORT. Seller shall notify Buyer in writing, before delivery of any products whether such product requires a license from the U.S. or any foreign government in order to export the product from the U.S. or from any country where the product is delivered. Seller shall provide Buyer all information that Buyer needs to obtain such export licenses.