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Sales Terms and Conditions

All quotations and sales by Vantage IC, LLC, its subsidiaries or affiliates (“Seller”) are subject to these terms and conditions and those on the front of this document. NO AGENT, EMPLOYEE, OR REPRESENTATIVE OF SELLER HAS ANY AUTHORITY TO ALTER OR DELETE ANY TERM OR CONDITION OF THIS CONTRACT OR TO BIND SELLER TO ANY WARRANTY, COVENANT, OR REPRESENTATION CONCERNING THE GOODS DESCRIBED IN THIS CONTRACT UNLESS THAT WARRANTY, COVENANT, OR REPRESENTATION IS CONTAINED IN THIS CONTRACT.

1. Acceptance and Cancellation of Orders:

Any contract for the sale of goods made between Buyer and Seller may be cancelled by Buyer only upon the advance written consent of Seller (which it may withhold in its sole discretion). As a condition to receiving Seller’s written consent, Buyer shall pay all reasonable cancellation and restocking charges incurred by Seller due to Buyer’s cancellation of the order. Seller may designate certain Products as non-cancelable, non-returnable (“NCNR”).

2. Delivery and Title:

All prices quoted and goods shipped are F.O.B Seller’s place of shipment. Title of goods will remain Seller’s until buyer remits full payment for invoiced goods. Risk of loss of all goods shall pass to Buyer when the goods are placed by Seller in possession of a common carrier selected by Buyer or Seller for shipment to Buyer. Unless expressly provided otherwise on the front of this Contract, Buyer shall pay all freight, handling, delivery and insurance costs for the shipment of goods. Selection of the carrier and delivery route shall be made by Seller unless specified by Buyer.

Seller may modify terms prior to shipment, refuse or delay any shipment, or require payment in advance if Buyer fails to satisfy or fulfill any contractual obligations to Seller, whether pursuant to this Contract or any other contract between Seller and Buyer or if Seller believes in good faith that Buyer’s ability to make payments may be impaired. Buyer shall remain liable to pay for any Products already shipped and all NCNR and Customer Specific Products ordered by Buyer.

Seller may deliver all goods covered by this Contract at one time or portions, from time to time, within the time allotted for delivery as provided in the order. Each shipment shall be considered a separate and independent transaction and payment shall be made according to the designated terms upon submission of invoice.

Buyer acknowledges that delivery dates provided by Seller are estimates only and Seller shall not be liable for delays in delivery or for failure to perform due to causes, beyond the reasonable control of Seller nor shall the carrier be deemed an agent of Seller. Delivery of a quantity, which varies from the quantity specified, shall not relieve Buyer of the obligation to accept delivery and pay for the Products delivered. Delay in delivery of one installment shall not entitle Buyer to cancel other installments.

3. Prices:

a) The prices of the Products are those specified on the front of Seller’s invoice. b) Unless otherwise agreed to in writing by Seller, all prices quoted are exclusive of transportation and insurance costs, duties, and all taxes including, but not limited to, federal, state, provincial and local sales, excise, value added, goods and services taxes and any other taxes.

Buyer agrees to pay these taxes unless Buyer has provided Seller with an exemption resale certificate in the appropriate form for the jurisdiction of Buyer’s place of business and any jurisdiction to which Products are to be directly shipped hereunder, or unless the sale is otherwise exempt from these taxes. Buyer agrees to indemnify and hold Seller harmless for any liability for tax in connection with the sale, as well as the collection or withholding thereof, including penalties and interest thereon. When applicable, transportation and taxes shall appear as separate items on Seller’s invoice.

4. Payment:

a) Upon approval of credit, standard terms of payment are net thirty (30) days from the date of invoice unless otherwise specified in writing by Seller. b) Seller hereby retains a security interest in all Goods delivered hereunder, together with the proceeds from the sale or other disposition thereof, until Buyer has made payment in full for such Goods and related charges.

Buyer shall, upon request of Seller, execute all documents and financing statements necessary to perfect such security interest. c) All late payments shall be charged interest computed on a daily basis from the due date until paid in full. A late charge of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, will be imposed on all past due accounts. Buyer shall be liable for costs of collection, including reasonable attorneys’ fees and court costs, in any action to collect past due amounts.

5. Buyer’s Terms and Conditions:

The terms and conditions of sale herein apply to all orders accepted by Seller and shall be applicable to all Goods and Services delivered to Buyer pursuant hereto or pursuant to any other agreement which incorporates these terms and conditions. Buyer acknowledges and agrees that any terms and conditions set forth on any purchase order or other document submitted by Buyer which are different than or conflict with the terms and conditions herein are hereby rejected by Seller and are superseded by the terms and conditions herein which shall govern in all respects.

Acceptance by Buyer of the Goods and Services shall be deemed conclusive acceptance of the terms and conditions herein. All orders must be approved and accepted by Seller at Seller’s place of business. Once accepted by Seller, the Buyer’s order may not be cancelled or re-scheduled. Seller’s performance of any contract is expressly made conditional on Buyer’s agreement to Seller’s terms and conditions contained in this Contract. Commencement of performance or delivery shall be for Buyer’s convenience only and shall not constitute acceptance by Seller of Buyer’s terms and conditions. If a contract is not earlier formed by mutual agreement between Buyer and Seller, acceptance of any goods or services by Buyer shall constitute acceptance by Buyer of the terms and conditions stated herein.

6. Export Control / Use of Product:

Buyer certifies that it will be the recipient of Products to be delivered by Seller. Buyer acknowledges that the Products are subject to the export and/or import control laws and regulations of various countries including the Export Administration Laws and Regulations of the United States. Buyer agrees to comply strictly with all U.S. export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required and acknowledges that it shall not directly or indirectly export any Products to any country to which such export or transmission is restricted or prohibited.

Products sold by Seller cannot be transferred, sold or re-exported to any party on the Denied Entity List or Restricted Person List of the U.S. Department of Commerce, Bureau of Export Administration (BXA), any party designated by the U.S. Treasury Department’s Office of Foreign Assets Control, and any party debarred or sanctioned for proliferation or terrorism reasons by the U.S. State Department. Products sold by Seller are not designed, intended or authorized for use in life support, life sustaining, nuclear, or other applications in which the failure of such Products could reasonably be expected to result in personal injury, loss of life or catastrophic property damage.

If Buyer uses or sells the Products for use in any such applications: (1) Buyer acknowledges that such use or sale is at Buyer’s sole risk; (2) Buyer agrees that Seller and the manufacturer of the Products are not liable, in whole or in part, for any claim or damage arising from such use; and (3) Buyer agrees to indemnify, defend and hold Seller and the manufacturer of the Products harmless from and against any and all claims, damages, losses, costs, expenses and liabilities arising out of or in connection with such use or sale.

7. Technical Assistance or Advice

Any technical data, assistance or advice offered by Seller in regard to the use of any Product or provided in connection with Buyer’s purchases is given free of charge and only as an accommodation to Buyer. Seller shall have no obligation to provide any technical assistance or advice to Buyer and if any such assistance or advice is provided, such fact will not obligate Seller to provide any further or additional assistance or advice.

Seller shall not be held liable for the content or Buyer’s use of such technical assistance or advice nor shall any statement made by any of Seller’s representatives in connection with the Products or Services constitute a representation or warranty, express or implied. Without Seller’s prior written consent, Buyer shall not use, duplicate, or disclose any technical data delivered or disclosed by Seller to Buyer for any purpose other than for installation, operation, or maintenance of the goods purchased by Buyer from Seller.

8. Acceptance / Returns:

Claims against Seller for shortages must be made within five (5) business days after arrival of shipment. Buyer shall inspect all Goods promptly upon receipt thereof and may reject any Goods that are damaged, defective, or fail in any material way to meet manufacturer’s specifications. To reject any Goods, Buyer must notify Seller in writing of its rejection within five (5) business days for damaged goods and request a Return Material Authorization (‘RMA’) number for undamaged Goods that fail to meet manufacturer’s specifications within the following time frame based on the condition (Cnd) of Goods sold as stated on the front of this Contract: a) (FN) Factory New, (NE, New) New; Return period is one year from the date of shipment. b) (NS) New Surplus, (SPL) Surplus, (SP) Socket Pulls, (P) Pulls, (FR) Factory Recertified, (T) Tested, (RF) Refurbished; Return period is 30 days from the date of shipment. c) (OH) Overhauled, (SV) Serviceable, (AI) As Is, (AR) As Removed, (US) Used, (RP) Repairable, (I) Inspected, and all other conditions; Return period is 15 days from the date of receipt or upon installation, whichever comes first.

RMA requests for Goods that do not meet manufacturer’s specifications must be accompanied by a professional engineer’s failure or shop report. No returns may be made for any reason without a Return Authorization Form issued by Seller. Unless Buyer notifies Seller in writing of Buyer’s rejection and the reason therefore, the Goods shall be conclusively presumed to be accepted. If Buyer does not request from Seller an RMA within the periods stated above, Seller may, at its sole discretion, refuse to issue an RMA for return of the goods or may require that Buyer pay to Seller a reasonable restocking fee as a condition of issuing to Buyer the RMA. Within five (5) business days after receipt of the written RMA number, Buyer shall return to Seller the rejected Goods, freight prepaid, with the RMA number displayed on the outside of the carton. Seller reserves the right to refuse to accept any rejected Goods where the RMA number is not so displayed. ALL GOODS RETURNED MUST BE COMPLETE UNITS AND HAVE ALL THE ORIGINAL TAGS AND CERTIFICATES ATTACHED. Any goods not returned in accordance with Seller’s Return Policy will be returned to Buyer.

9. Limited Warranty:

Subject to Section 10, Seller warrants that it has title to the goods and that the goods generally conform to the descriptions, if any, on the front page of this Contract. The use of part numbers or other methods of description on the front of this document is for convenience only and does not constitute any representation by Seller with respect to the performance, specifications, or fitness of any part for any purpose.

THE FOREGOING WARRANTIES ARE SELLER’S EXCLUSIVE WARRANTIES, AND THE GOODS SOLD UNDER THIS AGREEMENT ARE SOLD “AS IS” AND “WITH ALL FAULTS.” EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, SELLER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER RELATING TO THE GOODS, INCLUDING WITHOUT LIMITATION THE DESIGN AND CONDITION OF THE GOODS OR THEIR QUALITY, CAPACITY, SUITABILITY, CONSTRUCTION, PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE.

Buyer acknowledges that Seller is acting solely as a pass through distributor of the goods covered by this Invoice and that the licensor or the manufacturer of the goods shall be solely responsible to Buyer and third parties for all liability, claims, damages, obligations, and costs and expenses related to the goods sold by Seller. Buyer agrees to look solely to the manufacturer or repair facility for compliance with the manufacturer’s or repair facility’s warranty and for any maintenance, support or repair of the goods. Seller assigns to Buyer any warranty delivered to Seller by a manufacturer or other vendor to the extent the assignment is permitted by the terms thereof. Seller makes no representation, covenant, or warranty with respect to the extent or enforceability of the manufacturer’s or repair facility’s warranty. No repair or replacement of goods by Seller or manufacturer shall extend the warranty period of the manufacturer.

Seller neither assumes nor authorizes Buyer or any other person to assume on behalf of Seller any other liabilities in connection with the use, sale, or resale of the goods. In no event shall Seller be liable for incidental, consequential, general, exemplary or special damages whether based on contract, representation, warranty or tort, arising out of or related to purchase, installation, use or performance of the Goods. The performance of any value-added service may void the manufacturer’s warranty and render products non-returnable. Orders incorporating such services are, accordingly, non-cancelable and the products are non-returnable. Any third party value-added service provider is deemed to be an agent of customer.

Seller is not a manufacturer of the goods sold and Seller does not assume any liability for, nor warrant that, the products sold do not contain substances that are illegal under Directive 2002/95/EC of The European Parliament and the Council of 27 January 2003 on the restriction on the use of certain hazardous substances in electrical and electronic equipment, under any amendments to said directive, or under any local law regulations regarding the same or similar requirements. As buyer of the products, Buyer assumes any and all risk that the products may contain such substances and Buyer agrees to hold harmless, save and indemnify Seller for any liability associated with the same.

10. Limitation of Liability:

a) Within the periods specified in Section 8, Buyer shall have the right to examine and test the goods to determine if there is any damage, defect, or shortage. All claims for any damage, defect, shortage, or for any cause whatsoever (whether the claim is based in contract, negligence, strict liability, other tort, or otherwise) shall be deemed waived unless made in writing and received by Seller within specified period after Buyer’s receipt of the goods, or, if the claim is for non-delivery of goods, within the return period after the date the goods were to be delivered.

Failure of Seller to receive written notice of any such claim within the applicable time period shall be deemed an absolute and unconditional waiver by Buyer of the claim regardless of whether the facts giving rise to the claim shall have then been discovered or whether processing, further manufacture, other use, or resale of goods shall have then taken place.

b) BUYER’S EXCLUSIVE REMEDY SHALL BE FOR DAMAGES AND SELLER’S TOTAL LIABILITY FOR ANY AND ALL LOSSES AND DAMAGES ARISING OUT OF ANY CLAIM WHATSOEVER (WHETHER THE CLAIM IS BASED ON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY) SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE GOODS IN RESPECT TO WHICH THE CLAIM ARISES OR, AT SELLER’S OPTION, THE REPAIR OR REPLACEMENT OF THE GOODS SOLD. IN NO EVENT IS SELLER LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LIABILITY, CLAIMS, OBLIGATIONS, DAMAGES, COSTS, OR EXPENSES, INCLUDING WITHOUT LIMITATION, ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES RESULTING FROM ANY CLAIM (INCLUDING LOST PROFITS, BUSINESS LOSSES, PERSONAL PROPERTY DAMAGE, ANY LIABILITY OF BUYER TO ITS CUSTOMERS OR THIRD PARTIES, PERSONAL INJURY, AND DEATH) ARISING OUT OF OR RELATING TO THE SALE OF GOODS BY SELLER TO BUYER OR ANY RELATED SERVICES PROVIDED TO BUYER.

Seller is not liable for, and Buyer assumes full liability for, all personal injury and property damage connected with the handling, transportation, possession, processing, repackaging, further manufacture, or other use or resale of goods, whether the goods are used along or in combination with any other material. c) Goods sold by Seller are not authorized to be used in life support equipment or for applications in which the failure or malfunction of the goods would create a situation in which personal injury or death could occur. Any such use or sale of goods sold by Seller is at the sole risk of Buyer, and Buyer agrees to indemnify and defend Seller against and hold Seller harmless from all damages and costs arising out of such use or sale.

11. Accounts Receivable and Credit Balances:

Seller may assign accounts receivable to a Seller affiliate. In order to defray the cost of customer account administration any credit balance or other sum owed to customer which remains unclaimed by customer for a period of eighteen months will become the property of Seller.

12. Intellectual Property:

Seller disclaims any warranty against infringement with respect to the goods sold pursuant to this Contract and the packaging relating to such goods. Seller is not liable with respect to any actual or alleged infringement of any United States or foreign patent, trademark, copyright, mask work right, trade dress, trade secret, or similar proprietary rights. If any Product includes software or other intellectual property, such software or other intellectual property is provided by Seller to Buyer subject to the copyright and user license, if any, for such Products, the terms and conditions of which are set forth in the license agreement accompanying such software or other intellectual property.

Nothing herein shall be construed to grant any rights or license to use any software or other intellectual property in any manner or for any purpose not expressly permitted by such license agreement. Buyer acknowledges and understands that Seller is not the manufacturer of any Products ordered or to be supplied to Buyer and is not liable to Buyer or any third party for any copyright, design or patent issue, right or claim that may arise in relation to any Product.

13. Installation:

Buyer is solely responsible for the installation and operation of the goods, including without limitation, obtaining all permits, licenses, or certificates required for the installation or use of the goods

14. Force Majeure:

Seller is excused from performance of any obligations and shall not be liable for delays in delivery or for failure to perform if its failure or delay of performance is caused by events or conditions beyond Seller’s reasonable control including without limitation, acts of God, acts of a public enemy, quarantine restrictions, expropriation or confiscation of facilities, compliance with any order of any governmental authority, industrial disturbances, blockades, insurrections, arrest and restraint of people or rulers, civil disturbance, boycotts, acts or omissions of Buyer or civil or military authorities, fire, strike, lock-outs, landslide, lightning, wash-outs, tornadoes, hurricanes, windstorms, explosions, epidemic, flood, storm, earthquake, riot, war, breakage or accident of machinery or equipment, delays in transportation, or inability to obtain necessary labor, materials, or supplies. In the event of any delay, the contractual date of delivery, if any, shall be extended for a period equal to the time lost as a consequence of the delay without penalty to Seller.

15. General:

All agreements, covenants, conditions and provisions contained herein shall apply to and bind the assignees and successors in interest of Buyer. If any provision of this Contract is held to be invalid, illegal, unconscionable, or unenforceable, that provision will be considered separable from the remaining provisions of this Contract, will be reformed and enforced to the extent that it is valid and lawful, and will not affect the validity, legality, or enforceability of any other provision of this Contract. The captions used herein are for the convenience of the parties only and shall not affect the constructions or interpretation hereof. Nothing in this Contract, whether express or implied, is intended or should be construed to confer upon, or grant to, any person, except Buyer and Seller, any claim, right, or remedy under it.

16. Integration and Assignment

This contract records the final, complete and exclusive agreement between the parties with regard to the subjects addressed in it and supersedes any and all prior or contemporaneous oral or written agreements between them regarding the same. No course of prior dealings between the parties and no usage of the trade is relevant to supplement or explain any term used in this contract. Acceptance or acquiescence in a course of performance rendered under this contract is not relevant, to determining the meaning of this contract even though the accepting or acquiescing party had knowledge of the nature of performance and opportunity for objection. An amendment or modification of this contract will be valid and effective only if it is in writing and signed by both the Buyer and Seller. Any assignment by Buyer and Seller. Any assignment by Buyer of this contract or any rights in it, without Seller’s advance written consent, shall be void.

17. Breach:

In the event of breach by Buyer, Seller shall have all the remedies provided under New York State Statutes, which shall be cumulative with one another and with any other remedies that Seller might have at law, in equity, under any agreement of any type or, without limitation, otherwise. The waiver by Seller of any breach hereof or default in any payment shall not constitute a waiver of any succeeding breach or default. The exercise or failure to exercise any remedy shall not preclude the exercise of that remedy at another time or any other remedy at any other time.

No action, regardless of type, arising out of, or in any way connected with, the goods furnished or services rendered by Seller to Buyer, may be brought by Buyer more than one year after the cause of action has accrued. Buyer shall pay to Seller, on demand, all costs incurred by Seller in enforcing, prosecuting, or defending any provision of this Contract. For purposes of this Contract, “costs” means the fees, costs, and expenses of experts, attorneys, mediators, witnesses, arbitrators and collection agents, whether incurred before or after demand or commencement of legal proceedings, and whether incurred pursuant to trial, appellate, mediation, bankruptcy, arbitration, administrative, or judgment execution proceedings.

18. Controlling Law:

The validity, enforcement, construction, and interpretation of this Contract are governed by the laws of the State of New York (including the provisions of the New York Uniform Commercial Code) and the federal laws of the United States of America, excluding the laws of those jurisdictions pertaining to resolution of conflicts with laws of other jurisdictions. The parties expressly exclude the applicability of the United Nations Convention on Contracts for the International Sale of Goods. Seller and Buyer (a) consent to the personal jurisdiction of the state and federal courts having jurisdiction over Suffolk County, New York, (b) stipulate that the proper, exclusive, and convenient venues for all legal proceedings arising out of this Contract are Suffolk County, New York, for a state court proceeding, and the Suffolk County, New York, for a federal court proceeding, and (c) waive any defense, whether asserted by motion or pleading, that Suffolk County, New York, is an improper or inconvenient venue.

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