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Purchase Order Terms

These Purchase Order Terms and Conditions (“Terms”) govern the purchase from the provider or supplier (“Vendor”) and supply to Triple Ring Technologies, Inc. (the “Company”) and its affiliates through the placement of purchase orders (“Order” or “Orders”) certain goods or services at such times and in such locations and amounts as Company or its affiliates may request. Company does not accept, expressly or impliedly and Company hereby rejects, any additional or conflicting terms or conditions (including, without limitation, in shrink-wrap or click-through license agreements).  IF YOU DO NOT AGREE, NOTIFY COMPANY IMMEDIATELY AND DO NOT GO FORWARD WITH ANY TRANSACTION.  “Agreement” shall mean these Terms, including the appendices, exhibits and attachments hereto, and any Orders and modifications issued hereunder. The Agreement sets forth the entire understanding between the parties on the subject procurement effort and supersedes all prior written or oral quotes, inquiries, proposals, agreements, negotiations or commitments. No amendments, modifications, substitutions, or supplements to the Agreement are binding unless in writing and signed by Company’s authorized representative. Unless expressly specified otherwise, Company is not obligated to purchase any amount of goods or services from Vendor and is not obligated to purchase goods or services exclusively from Vendor. The article and section headings contained in this Agreement are for reference purposes only and have no effect on the interpretation of this Agreement or its application.

  1. DELIVERY OF GOODS. Vendor must provide all goods in accordance with Applicable Laws (as defined below) and applicable Order. Unless otherwise specified, Vendor must ship all goods FOB destination and include a packing slip, including the applicable Order number, on the outside of the container of each package shipped. If an Order is canceled in whole or in part because of Vendor’s default, Company may retain or return any goods received under such Order and without limiting Company’s other remedies, Vendor must reimburse Company for (i) all costs of shipping or storing any returned goods and (ii) any amount previously paid by Company for the returned goods.

  2. INSPECTION, TESTING AND QUALITY CONTROL. Vendor must have and maintain inspection and quality control systems appropriate for the supply of the goods and services. All inspection records and other documents required by the Agreement or Applicable Laws must be kept intact and made available to Company upon reasonable request for a period of at least five years after final delivery under such Order. Without the prior written consent of Company, Vendor shall not insert into any goods or software any code which would have the effect of disabling or otherwise shutting down all or any portion of the goods. If any goods or software contains a disabling code, Vendor shall not invoke such disabling code at any time without Company’s prior written consent. Company may inspect or test the goods or services at all reasonable times or places prior to final acceptance and Vendor shall provide access to or, as appropriate, samples of goods to support such. Company’s inspection or testing, or lack thereof, shall not relieve Vendor of its obligation to furnish conforming goods or services. Vendor must make repairs or replacements arising from any test or inspection at its sole cost and expense within the lead-time for the goods or services.

  3. PERFORMANCE. Vendor’s performance hereunder must meet the Standard of Care (as defined below) and comply with Applicable Laws. For purposes of this Order, “Representatives” shall mean, with respect to a Party, such Party’s directors, officers, employees, agents and any other persons or entities (excluding the other Party) who contribute to the performance of such Party’s obligations under this Order and, with respect to Vendor, shall include without limitation any and all subcontractors and such subcontractors’ directors, officers, employees and agents.

  4. PERSONNEL/PROPERTY. Vendor’s Representatives who are required to enter Company’s premises or use Company’s systems or property shall abide by Company’s rules, policies, and restrictions and may be required to provide certain information and complete certain paperwork related thereto.

  5. CHANGES, DELAYS OR SUSPENSIONS. Company may make changes in the scope or schedule of any Order by providing written notice to Vendor at any time before completion of performance thereunder. If Vendor believes that an adjustment to Vendor’s compensation or schedule is justified as a result of a Company-directed change, Vendor must notify Company of such in writing within 10 calendar days of Company’s notice of change. Any adjustment agreed to by the parties must be reflected in an amendment to the affected Order signed by Company and Vendor. Vendor must continue with performance of the Order while any request for adjustment is pending. Vendor waives its rights to any adjustments not requested in accordance with this Agreement. Company may suspend all or any part of any Order by providing written notice to Vendor. Vendor’s obligations to Company under this Agreement and any Order placed hereunder will remain in full force and effect despite the delay or suspension of an Order under this Article. If Company suspends an Order, Vendor shall be entitled to compensation in accordance with the terms of such Order up to the date of suspension; provided, however, Company’s liability to Vendor shall in no case exceed the compensation payable to Vendor pursuant to such Order, as appropriately adjusted and without duplication of payment.

  6. OWNERSHIP. Vendor acknowledges and agrees that all right, title and interest in and to any Work Product (as defined below), except for Vendor Retained IP Rights (as defined below), shall be the sole property of Company whether the services to be performed are completed or not. Vendor hereby assigns to Company all of Vendor’s right, title and interest in the Work Product excluding the Vendor Retained IP Rights. All Work Product and any reproductions thereof shall be surrendered to Company by Vendor upon completion of the related portions of the services, termination of the applicable Order or termination of this Agreement, whichever occurs first. All Work Product other than Vendor Retained IP Rights may be used by Company without restriction and may not be used by Vendor or its subsidiaries or its subcontractors, if any, without Company’s prior written consent. All Vendor Retained IP Rights shall remain the intellectual property of Vendor; provided, however, Vendor hereby grants a perpetual, worldwide, non-terminable, royalty free license to Company (and its successors and assigns) at no additional cost to Company to use the Vendor Retained IP Rights for the purposes expressed in an Order or as is necessary for Company (or its successors and assigns) to use the goods and services provided under an Order. “Work Product” shall mean all tangible material, or its intangible equivalent in unwritten or oral form, created directly or indirectly in connection with or arising out of the services and any of Vendor’s obligations hereunder, including, without limitation, all patent, copyright, trademark, trade secret and other proprietary rights and shall include without limitation all of the following, whether finished: drafts, documents, writings, communications, plans, data, estimates, calculations, test results, specimens, schematics, drawings, tracings, studies, specifications, surveys, photographs, software programs, programs, reports, orders, maps, models, agreements and all derivative works thereof, ideas, concepts, discoveries, inventions, patents, know-how, negative know-how and improvements. Vendor Retained IP Rights” shall mean any Work Product which (i) is proprietary to Vendor, (ii) has been clearly identified to Company in writing as proprietary to Vendor and not to be property of Company, and (iii) was not designed or otherwise created for Company.

  7. COMPENSATION/INVOICES. Vendor shall invoice Company and Company shall pay Vendor undisputed amounts in accordance with the terms of this Order after receipt of the goods or services that meet the requirements of this Agreement and applicable Order and after receipt of a correct invoice from Vendor. Company may reasonably specify information that Vendor shall include in invoices. Rates set forth in an Order are firm and fixed and all inclusive, except VAT and applicable sales taxes. VAT and applicable sales tax will be added to the prices, as applicable, and stated as a separate item on each invoice.

  8. RIGHT TO WITHHOLD PAYMENT/OFFSET. Company may, in whole or in part, decline to approve any request for payment hereunder, withhold or offset against any payment due hereunder, or, due to subsequently discovered evidence or inspection, nullify any payment previously made to such extent as is reasonably necessary, in Company’s good faith opinion, to protect Company from loss due to Vendor’s failure to meet its obligations hereunder without Company’s waiver or limitation of any other rights or remedies.

  9. CONTRACTUAL RELATIONSHIP. Vendor is engaged as an independent contractor and not as an agent, employee, partner or joint employer of Company. Vendor is an independent contractor with the right and discretion to control the performance of its obligations under this Agreement without the direct supervision or control of Company. Vendor represents and warrants that it is an employer subject to, and shall comply with, all Applicable Laws and shall be responsible for withholding and payment of any and all payroll taxes and contributions; Federal Insurance Contributions Act, Federal Unemployment Tax Act and state unemployment contributions; and workers’ compensation and disability insurance payments. Vendor acknowledges and agrees that Company shall have no responsibility or liability for treating Vendor’s Representatives as employees of Company for any purpose. Neither Vendor nor any of Vendor’s Representatives shall be eligible for coverage or to receive any benefit under any Company provided workers’ compensation, employee plans or programs or employee compensation arrangement, including without limitation any and all medical and dental plans, bonus or incentive plans, retirement benefit plans, stock plans, disability benefit plans, life insurance and any and all other such plans or benefits.

  10. TERMINATION FOR CONVENIENCE. Company may, for any reason, terminate this Agreement, including any Order placed hereunder by providing written notice to Vendor specifying the effective date of termination and Vendor shall comply with the terms of such notice. If Company terminates an Order that is for custom manufactured goods (“Special Order”) within less than 30 calendar days before its specified delivery date, Company will reimburse Vendor only for Vendor’s actual expenditures for the Special Order, based on substantiating documentation provided by Vendor; however, in no event shall Company be liable to Vendor in excess of the compensation Vendor could have been paid under the Order if the Special Order had not been so terminated. In the event of termination for convenience, Vendor shall be entitled to compensation in accordance with the terms of this Order up to the date of termination which compensation shall include any reasonable expenses actually and necessarily incurred by Vendor in terminating Company-approved subcontracts and demobilizing from Company’s premises as a result of Company’s termination for convenience; however, Company’s liability to Vendor shall in no case exceed the cost for the goods and/or services, as properly adjusted, reduced by the amount of payments otherwise made, without duplication of payment. Upon payment of compensation to which Vendor is entitled hereunder, Company shall have no further obligations to Vendor under this Order or otherwise in connection with such terminated Order.

  11. TERMINATION FOR CAUSE. Company may terminate this Agreement, including any Order placed hereunder, in whole or in part, for default by Vendor in performance of its obligations hereunder. Any termination by Company will be without prejudice to any other rights or remedies Company may have and will be effective if Vendor fails to cure the breach within 15 calendar days of Company’s written demand, unless a longer period is agreed to by the parties. There shall be no cure period in the event of any of the following: (i) failure to comply with Applicable Laws; (ii) failure to comply with confidentiality or warranty obligations; (iii) Vendor makes a general assignment for the benefit of its creditors; (iv) a petition in bankruptcy is filed by or against Vendor; or (v)  a receiver is appointed due to Vendor’s insolvency.

  12. VENDOR’S RIGHT TO SUSPEND. If Company fails to pay Vendor undisputed amounts due and within the time frame provided for in an Order, then Vendor shall have the right to suspend Vendor’s performance under that specific Order by 45 calendar days’ prior written notice to Company of Vendor’s intent to suspend for nonpayment provided that (i) Vendor delivers to Company at least 15 calendar days prior to the suspension date another notice conveying Vendor’s intent to suspend performance under that Order for nonpayment and (ii) Company does not pay Vendor undisputed amounts owing Vendor prior to the suspension date. Vendor shall promptly resume performance upon Company’s payment of undisputed amounts owing.

  13. VENDOR’S RIGHT TO TERMINATE FOR SUSPENSION. If Vendor’s performance under an Order is suspended for a period of 180 consecutive days (i) at the direction of Company, (ii) by order of any Court, or (iii) as a result of any act of a governmental authority, and provided that such suspension is through no fault of Vendor or Vendor’s Representatives or any person or entity working directly or indirectly for Vendor, Vendor may, upon 15 calendar days’ prior written notice to Company, terminate its performance under such Order.

  14. LIENS. To the extent permitted by Applicable Laws, Vendor hereby waives and releases any and all lien rights and similar rights for payment for services, labor, equipment or materials furnished by Vendor in performance of its obligations hereunder and granted by law to persons supplying materials, equipment, services and other items of value to improve or modify land or the structures thereon, which Vendor may have against Company’s or Company’s landlord’s premises, property or funds payable to Company. If a lien affecting any of Company’s rights is filed by any third-party Vendor of goods or services in support of an Order, Vendor must remove the lien within 10 calendar days of notice of lien or of written demand from Company, whichever is earlier. If Vendor fails to remove the lien, Company may take steps necessary to remove the lien. Vendor shall immediately reimburse Company for the reasonable costs of removal of any such lien, including, without limitation, all attorneys’ fees and costs, upon receipt of written demand from Company.

  15. COVENANTS. Vendor covenants that performance and goods and services provided hereunder will meet the Standard of Care and Applicable Laws. “Standard of Care” shall mean (i) meeting the professional standard of diligence, care, timeliness, trust, dependability, safety, oversight, efficiency, economy and skill exercised by members of Vendor’s profession in the United States with expertise in providing comparable multinational companies with first-class services or goods substantially similar in size, scope, cost and complexity to those to be provided hereunder and (ii) exercising such professional standard by appropriate action or inaction. “Applicable Laws” shall mean (i) any federal, state, provincial, commonwealth or local government law, statute, rule, requirement, code, regulation, permit, ordinance, authorization or similar such governmental requirement and interpretation and guidance documents of the same by a governmental authority as applicable to Vendor or this Agreement; and (ii) any of Company’s compliance, safety and security rules, programs, policies and other instructions as applicable to Vendor or an Order provided that Vendor or its Representatives have been made aware of such Company instructions.

  16. WARRANTY. Vendor warrants that all goods, services, equipment or materials, or any portion thereof, prepared or provided pursuant to this Agreement and the performance of Vendor’s obligations, whether performed by Vendor or any subcontractor at any tier, will (a) be free from material defects, errors and deficiencies; (b) comply with the requirements of the Agreement and applicable Order; (c) comply with all Applicable Laws; and (d) to the extent required hereunder, meet requirements of and be tested and certified by a nationally recognized testing laboratory prior to delivery and current Good Manufacturing Practices. Vendor represents and warrants that neither Vendor nor any Vendor Representatives contributing to or acting in connection hereunder is presently or has ever been (i) the subject of a debarment action or is debarred pursuant to Section 306 of the U.S. Federal Food, Drug, and Cosmetic Act of 1938, as amended, or other Applicable Laws; (ii) the subject of a disqualification proceeding or is disqualified as a clinical investigator pursuant to 21 C.F.R. section 312.70, or other Applicable Laws; or (iii) the subject of an exclusion proceeding or excluded from participation in any federal health care program under 42 C.F.R. Part 1001 et seq., or other Applicable Laws. Furthermore, Vendor agrees not to employ or otherwise engage any individual or entity in connection with performance hereunder who has been debarred, disqualified, or excluded, as described above, and shall immediately notify Company upon Vendor or Vendor Representatives becoming aware of any inquiry concerning, or the commencement of any proceeding or disqualification that is the subject of this Section that involves Vendor or Vendor Representatives. Notice of or failure to provide such notice shall constitute a breach hereunder for which Company may terminate this Agreement immediately for default notwithstanding any right of Vendor to cure. To the extent goods incorporate software, Vendor warrants that such goods, and any parts thereof, shall be free from Viruses. For purposes of this Article, “Viruses” shall mean (a) program code or programming instruction or set of instructions intentionally designed to disrupt, disable, harm, interfere with or otherwise adversely affect computer programs, data files or operations, or (b) other code typically designated to be a Trojan horse, worm, backdoor or other term customarily considered to be a virus. All warranties provided hereunder will inure to the benefit of Company and Company’s successors and assigns. Without limiting the other provisions of this Article, Vendor shall assign to Company all warranties provided by subcontractors or other third parties who furnish goods and/or services in connection with Vendor’s performance hereunder. Vendor shall perform its obligations in such manner so as to preserve any such third party warranties.

Except as specifically set forth herein, any warranty corresponding to Vendor’s performance hereunder, or a portion thereof, including without limitation performance under its warranty obligations, shall continue for a period of the longer of (i) 18 months following completion of such performance and Company’s written acceptance of such performance or (ii) for Vendor’s standard warranty period. Notwithstanding the foregoing, this term of warranties shall not limit the duration of any applicable third party warranties. If Company notifies Vendor of any breach of warranty during the warranty period, Vendor will, at Vendor’s cost, remedy the breach of warranty, or repair or replace the goods that fail to comply with Vendor’s warranty. Notwithstanding the foregoing, the parties acknowledge and agree that this Article shall not limit any other remedies available to Company under the Agreement (including without limitation remedies for personal injury, property damage, death, violation of Applicable Laws or infringement).

  1. GENERAL INDEMNIFICATION. Vendor shall, to the fullest extent permitted by law, indemnify, defend and hold harmless Company and any parent, subsidiary or sibling entity of Company and their directors, officers, employees, agents, successors and assigns (“Indemnified Parties”) from and against any and all third-party suits, actions, legal or administrative proceedings, claims, liens, demands, damages, liabilities, losses, costs, fees, penalties, fines and expenses (including without limitation attorneys’ fees and expenses, and costs of investigation, litigation, settlement, and judgment, as incurred) (“Claims”) arising out of the acts or omissions of Vendor and Vendor’s Representatives or anyone for whose acts they may be responsible including without limitation Claims arising out of or regarding (i) the actual or alleged breach of Vendor’s representations, warranties or covenants contained herein; (ii) taxes including without limitation sales and use, import and export, value added, and business operating; (iii) employment-related issues including without limitation income tax withholding, employment taxes, employee benefits, employer contributions, actual or alleged violation of employment-related Applicable Laws including without limitation those regarding discrimination, harassment, retaliation, termination, and payment of overtime or wages; (iv) subcontractors’, mechanics’, suppliers’ or other third party liens or claims for nonpayment to the extent Company has met its payment obligations to Vendor hereunder; and (v) to the extent arising from Vendor’s or its Representatives’ negligence or willful misconduct, injury to or death of persons (including without limitation Vendor’s or its Representatives’ employees) and damage to or destruction of property.

  2. PROPRIETARY RIGHTS. Vendor shall, to the fullest extent permitted by law, indemnify, defend and hold harmless the Indemnified Parties from and against any and all Claims based upon an alleged or actual violation or infringement of any patent, copyright, trademark, trade secret or other proprietary right relating to the use, including without limitation sale, transfer or other disposition, of any deliverables (“Infringement Claim”). If any deliverables are the subject of an Infringement Claim, such use of any such deliverables is enjoined in connection with an Infringement Claim, or in Company’s or Vendor’s opinion any deliverables are likely to become the subject of an Infringement Claim, then Vendor, at its sole expense, must (i) procure for Company the right to continue such use of such deliverables at no additional cost to Company; (ii) modify such deliverables to render them non-infringing, but functionally equivalent subject to Company’s acceptance of such modified deliverables in Company’s sole discretion; (iii) substitute such deliverables with replacements that are non-infringing, but functionally equivalent subject to Company’s acceptance of such substitute deliverable in its sole discretion; or (iv) if Vendor, using commercially reasonable efforts, is unable to accomplish item (i), (ii) or (iii) above, refund to Company amounts actually paid by Company for such deliverables. Vendor’s indemnification obligations pursuant to this Article shall not apply to Infringement Claims that are based upon (a) Company’s use of the deliverables in combination with any products not developed, approved or intended by Vendor if such infringement is solely caused by such combined use, or (b) Company’s failure to use non-infringing, updated versions of the deliverables provided by Vendor without additional charge, provided that Vendor has notified Company in writing that such failure would result in infringement and such updated versions do not require Company to incur additional, material expenses.

  3. CONFIDENTIAL INFORMATION. In connection with this Agreement, Company may disclose to Vendor, through observation or otherwise, Company Information (defined below). Vendor: (i) may not disclose Confidential Information to third parties without prior written approval of Company; (ii) must restrict its use of Confidential Information to the intended purpose of this Agreement; and (iii) must limit dissemination of Confidential Information within its own organization to only those individuals who require disclosure for performance of their duties and who clearly understand the requirements of this Article. “Company Information” shall mean all information, unless specifically identified by Company as non-confidential, regardless of how communicated or stored concerning Company, including without limitation confidential or proprietary information, trade secrets, data, drafts, documents, communications, plans, know-how, negative know-how, formulas, improvements, designs, estimates, calculations, results, specimens, schematics, drawings, tracings, studies, specifications, surveys, facilities, photographs, documentation, software, equipment, processes, programs, reports, orders, maps, models, agreements, ideas, methods, discoveries, inventions, patents, concepts, research, development, and business and financial information. Vendor must return to Company all of Company’s Confidential Information in tangible form, including without limitation all copies, translations, interpretations, derivative works and adaptations thereof, immediately upon request by Company. Neither Vendor nor Vendor’s Representatives or subcontractors may use the Company Information for the benefit of any person or party other than Company, or in furtherance of any work, services or project other than the services or projects for which Vendor is engaged pursuant to the applicable Order. After the completion of performance of services for a project (or after the termination of an Order), Vendor shall prohibit all persons other than Vendor’s legal department and any of its Representatives performing warranty work for Company from accessing the Company Information.

To the extent Vendor discloses to Company written information pertaining to its performance hereunder that Vendor deems confidential, Vendor must clearly mark such information “CONFIDENTIAL” (“Vendor’s Information”). With respect to such Vendor’s Information, Company shall use good faith efforts to: (i) protect all such Vendor’s Information from disclosure in violation of this Article and (ii) restrict the use of Vendor’s Information to the intended purpose of this Agreement.  Company Information and Vendor’s Information are collectively referred to as “Confidential Information”.

The obligations set forth in this Article shall not apply to any portion of Confidential Information which (i) is or later becomes generally available to the public by use, publication or the like, through no act or omission of the recipient hereunder of such, or (ii) the receiving party possessed prior to the Effective Date of the applicable Order without being subject to an obligation to keep such confidential, or (iii) is independently developed by the receiving party without use or reference to the other party’s information.  In the event the receiving party becomes legally compelled to disclose any Confidential Information of the disclosing party, the receiving party shall immediately provide the disclosing party with notice thereof prior to any disclosure, shall use its best efforts to minimize the extent of disclosure, and shall cooperate with the other party should such other party seek to obtain a protective order or other appropriate remedy.

  1. PUBLICITY. Vendor shall not use or allow its Representatives to use, Company’s name, the names of Company’s subsidiaries or parent (if any), without Company’s prior written consent, which may be withheld at Company’s sole discretion. This prohibition of use shall include without limitation use in any publicity or advertising, including without limitation media releases, public announcements, or public disclosures. Vendor shall immediately provide notice to Company in the event it becomes aware of any violation of this prohibition and, at Vendor’s sole expense, take such steps necessary to cease and cure such violation to Company’s satisfaction.

  2. ASSIGNMENT, WAIVER, REMEDIES CUMULATIVE. Vendor may not assign or subcontract under this Agreement, in whole or in part, without Company’s prior written consent. No action or inaction by either party hereto shall be construed as a waiver of its rights under this Agreement or as provided by law. None of the terms of this Agreement may be waived except by an express agreement in writing signed by the waiving party. The failure or delay of either party in enforcing any of its rights under this Agreement shall not be deemed a continuing waiver of such right. The waiver of one breach hereunder shall not constitute the waiver of any other or subsequent breach. No remedy or election hereunder shall be deemed exclusive but shall, whenever possible, be cumulative, in addition to, and not in lieu of any other remedies available at law or in equity.

  3. SEVERABILITY. In the event any provision of this Agreement conflicts with the law under which this Agreement is to be construed or if any such provision is held illegal, invalid or unenforceable, in whole or in part, by a competent authority, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with Applicable Law. The legality, validity and enforceability of the remaining provisions shall not be affected thereby and shall remain in full force and effect.

  4. SURVIVAL. Vendor’s obligations under any provisions set forth in this Agreement related to ownership of deliverables, confidentiality, publicity, governing law and indemnification or which contemplate performance or observance subsequent to termination or expiration of this Agreement shall survive such expiration or termination.

  5. GOVERNING LAW/VENUE. If legal action is commenced, Vendor will continue to diligently perform its obligations under this Agreement pending final resolution of the dispute. Unless otherwise specified in an Order, this Agreement is governed and shall be construed and enforced in accordance with laws of the location where Company is to take delivery of the goods or services (with the exception of conflict of laws rules) and all actions relating to this Agreement must be brought and heard in a court of competent jurisdiction located in or having jurisdiction over that location.