Purchase Order Terms and Conditions

1. Governing Terms; Acceptance

The following terms and conditions shall apply to the purchase by Tecore Networks, its subsidiaries and affiliates (“Tecore”) from the seller (“Seller”) of the goods (“Goods”) and/or services (“Services”) (the Goods and/or Services being collectively referred to hereinafter as the (“Purchase”), all as described on the purchase order(s) referencing these terms and conditions (“Purchase Order”) and to which these terms and conditions are incorporated by such reference. Tecore will not accept nor be bound by and any different or additional terms or conditions with respect to the Purchase contained in any proposal, acknowledgement, invoice or other form or communication, other than those contained in a written agreement signed by both Tecore and Seller covering the Purchase. If there is no such written agreement, Tecore will make the Purchase only upon the following terms and conditions. In such event, the entire contract between Tecore and Seller consists of this Purchase Order, these terms and conditions, and Seller’s acceptance as above stipulated, and this contract shall not be changed or added to except in writing signed by authorized representatives of each party. Any different or additional terms in the Seller’s forms are hereby deemed to be material alterations and notice of objection to them and rejection of them is hereby given. Seller’s acceptance of the Purchase Order, shipment or delivery of Goods or provision of Services shall constitute Seller’s assent to and acceptance of the following terms and conditions.

2. Taxes

With respect to the Purchase Order, these terms and conditions and the Purchase, Tecore shall be responsible only for taxes that Tecore is required to pay under applicable statutes. All other taxes with respect to any of the same shall be paid by Seller.

3. Delivery

Unless otherwise expressly specified on the Purchase Order, Goods shall be transported FOB destination, freight pre-paid. All items will be shipped “Standard Freight” (typically, 3 to 5 business days). If a change in freight terms is requested, the expenses for such change in freight terms will be the responsibility of the Buyer. No charges will be allowed for transportation, boxing, crating or other packaging of Goods unless agreed in writing by Tecore in advance. If any delivery is, or is threatened to be, delayed, Seller shall promptly give notice thereof to Tecore’s authorized representative, together with all relevant information with respect thereto. The giving of and the terms of such notice shall not relieve Seller of any duty hereunder. Title to the Goods shall pass to Tecore upon delivery of Goods to Tecore’s designated destination.

4. Risk of Loss

Seller assumes and shall be responsible for all risk of loss of, damage to and liability for (a) Goods and all works in process, materials and other property of Tecore, Seller or third persons in connection with Seller’s performance of the Purchase Order, until acceptance by Tecore of Goods, (b) any property received by Seller from, or held by Seller or its supplier for the account of, Tecore, from the time of Seller’s receipt or holding of same and (c) any Goods or part thereof rejected by Tecore or as to which Tecore has revoked acceptance, from the time of such rejection or revocation.

5. Changes

Seller shall notify Tecore in advance in writing of all changes in raw materials, manufacturing or testing methods, packaging, shelf life or other changes which may affect the quality of the Goods delivered under the Purchase Order. Such changes must be agreed upon by Tecore in writing.

6. Inspection; Acceptance

The Purchase is received subject to inspection and approval. Without limiting Seller’s liability hereunder, if the Purchase is defective in any way or does not conform to applicable warranties or with the other provisions of these terms and conditions or the Purchase Order, Tecore, in addition to any and all other rights and remedies it may have, may revoke its acceptance of or may reject any or all of the Purchase. Upon such revocation or rejection, Tecore may, at Seller’s expense, require prompt correction or replacement of the Purchase at Seller’s expense. In case of such rejection or revocation of acceptance, transportation of the rejected goods, both to and from Tecore, shall be at Seller’s expense, and rejected goods are not to be replaced except upon specific instruction from Tecore. Tecore reserves the right to return for full credit any excess over quantity called for in any order or orders, with Seller bearing the cost of transportation both ways for any overage.

7. Pricing; Invoicing; Payment

Seller shall deliver to Tecore all invoices within thirty (30) days after shipping or service delivery. The price invoiced for the Purchase shall be no higher than the price stated on the front of this Purchase Order unless notification is received from Seller prior to shipment and the change is accepted by Tecore. The price for the Purchase specified in the Purchase Order shall be Seller’s lowest price currently in effect for the quantity of Goods or Services involved. Should Seller quote, offer or provide any lower price or better terms for any Goods or Services of the same or less quantity to any other party prior to completion of the transaction contemplated by the Purchase Order, Seller shall promptly notify Tecore, and, to the extent not unlawful, such lower price or better terms shall apply to the transaction contemplated by the Purchase Order. Specific payment terms for any invoice shall be contained on the face of each individual Purchase Order.

8. Warranties

Seller hereby warrants that it has good and marketable title to Goods delivered to Tecore hereunder, free and clear of all liens and encumbrances and, immediately following delivery of same to Tecore, Tecore shall have good and marketable title to all such Goods, free and clear of all liens and encumbrances. Seller hereby further warrants that Goods and all parts thereof and the operation thereof (a) shall (i) be fit for their intended purpose and for such particular uses specified by Tecore or otherwise known by Seller, (ii) be new and of established commercial operability and good quality, (iii) not infringe any patent, trademark, copyright or other intellectual property right, and (iv) comply with all safety, health and environmental laws and regulations applicable thereto; and (b) shall, for a period of fifteen (15) months after delivery, (i) conform to the specifications, drawings, samples and descriptions attached hereto or referred to herein or in the Purchase Order, if any, or if the same are not provided, to Tecore’s standard specifications, (ii) conform to all applicable plans, drawings, samples or models furnished to and approved by Tecore and conform to all of Seller’s product literature and items referenced therein, and (iii) be in merchantable condition and free from all contaminants and defects in material, parts and workmanship and, to the extent not manufactured or provided according to detailed designs furnished by Tecore to Seller, be free from all defects in design. With respect to any Services provided hereunder, Seller warrants that such Services shall be performed in accordance with the highest standards, practices and codes of the industry applicable to such Services. Seller’s warranties contained herein (and any consumer warranties, service policies or similar undertakings of Seller) shall be enforceable by Tecore’s customers and any subsequent owner or user of the Purchase or products produced from or containing the Purchase as well as by Tecore. Such warranties shall survive Tecore’s inspection, testing, acceptance and payment for such Purchase. Seller shall be liable for all damages, including all consequential, incidental, third party and special damages incurred by Tecore as a result of Seller’s failure to meet or otherwise comply with the warranties contained herein.

9. Indemnification

Seller shall defend, indemnify and hold harmless Tecore, and its subsidiaries, affiliates, officers, directors, employees, agents, customers, users and their respective successors and assigns from and against any and all claims, losses, liabilities, damages and expenses of any nature (including attorneys’ fees) arising out of or in connection with (a) Seller’s performance of, or failure to perform, any of its obligations hereunder or under the Purchase Order, including without limitation Seller’s breach of any warranty given herein; (b) any claim of infringement or violation of any trademark, copyright, patent or other intellectual property right relating to the Purchase; (c) any product liability or other claim or action with respect to the Purchase or any products produced from or containing the Purchase, except to the extent such claim or action is a direct result of Tecore’s negligence or wrongful acts or omissions; (d) the failure of Seller or the Purchase to comply with applicable laws or (e) Seller’s negligent or wrongful acts or omissions.

10. Insurance

Seller shall obtain and maintain in full force and effect adequate liability insurance to insure all of Seller’s obligations under the Purchase Order and these terms and conditions, and Tecore reserves the right to establish minimum insurance requirements with respect to same.

11. Force Majeure

No liability hereunder shall result to either party from any failure or delay in payment, performance, non-performance, acceptance or non-acceptance with respect to the Purchase caused by circumstances beyond the reasonable control of the party affected, including but not limited to acts of God, war, fire, accident or disaster, or by reason of any law, regulation or other act of any governmental authority, including court orders, or labor problems; provided, however, that the affected party shall promptly give written notice to the other party whenever such failure or delay becomes reasonably foreseeable, and shall use its best efforts to overcome promptly the effects of such failure or delay. If Seller, by reason of a failure or delay excused under this paragraph, is unable to supply goods the same as or similar to the ones covered herein, in the quantities contracted for, Seller shall allocate its actual production among its internal needs and its customers in a fair and reasonable manner. If notwithstanding such efforts the failure or delay continues for a period of more than thirty (30) days, the other party may elect to terminate the Purchase Order. Quantities of Goods omitted due to any failure or delay excused under this paragraph shall, without liability, be deleted from the Purchase Order.

12. Compliance with Law

Seller shall comply with all applicable laws and governmental regulations which may in any way affect or be applicable to the Purchase or Seller’s performance hereunder, including without limitation any applicable requirement under the Toxic Substances Control Act (the “TSCA”), the Fair Labor Standards Act, and laws concerning environmental protection and occupational health and safety. In particular, (a) Seller hereby agrees to incorporate in each invoice covering the Goods, a certification that the Goods covered by the invoice were produced in compliance with all applicable requirements of Sections 6, 7 and 12 of the Fair Labor Standards Act, as amended, and with all relevant regulations and orders of the United States Department of Labor issued under Section 14 thereof, and (b) Seller warrants that (i) all Goods delivered hereunder and all work performed and activities undertaken on Seller’s premises, including the equipment used therefore, shall comply with applicable standards promulgated under the Occupational Safety and Health Act of 1970, as amended, and regulations adopted thereunder, (ii) the nondiscrimination clauses contained in Section 202 of Executive Order 11246, as amended, relative to equal employment opportunity, and the implementing rules and regulations of the Office of Federal Contract Compliance are incorporated herein, (iii) in accepting the Purchase Order, Seller assumes responsibility for testing, process control, labeling and other requirements of the U.S. Consumer Product Safety Commission and/or other regulatory agencies or laws, and is responsible for reporting product hazards in accordance with Section 15 of the Consumer Product Safety Act, Public Law 92-573, and (iv) all chemical substances contained in the Purchase, shall be, at the time of the sale and Tecore’s receipt, on the then current list of chemical substances published by the Administrator of the Environmental Protection Agency pursuant to Section 8 of the TSCA and in compliance with all other rules and regulations of the Environmental Protection Agency. Not by way of limitation to the foregoing, Seller hereby certifies that all Goods constituting or containing chemical substances subject to the TSCA (including substances which Seller does not make or import) are correctly listed on the TSCA Chemical Substances Inventory, 15 USC 2601 et seq. and regulations thereunder, or else comply with an exemption to such Inventory listing. Seller shall inform Tecore in advance of any TSCA restrictions known to it governing the use and disposal of the Goods, including, but not limited to, any proposed or final Significant New Use Rule restrictions.

13. Import Requirements

Upon Tecore’s request, Seller shall provide Tecore with an appropriate certification stating the country of origin of the Goods sufficient to satisfy the requirements of (a) the U.S. customs authorities, and (b) any applicable export licensing regulations, including those of the United States. Seller shall mark all of the Goods with their country of origin. If any Goods are imported, Seller shall, when possible, allow Tecore to be the importer of record. If Tecore is not the importer of record and Seller obtains duty drawback rights to the Goods, Seller shall, upon Tecore’s request, provide Tecore with documents required by the customs authorities of the country of receipt to prove importation and to transfer duty drawback rights to Tecore.

14. Certain Equipment and Tools; License

If Tecore furnishes Seller with, or pays for, tools, dies, jigs, fixtures, patterns or other equipment for Seller’s use in filling the Purchase Order, the same shall be and remain the property of Tecore and shall not be used for orders of third parties without Tecore’s prior written consent. All such property, while in Seller care, custody and control shall be held at Seller’s risk and shall be insured by Seller at Seller’s expense in an amount equal to replacement costs with loss payable to Tecore. Such property shall be returned to Tecore in the same condition as received, ordinary wear and tear excepted, upon completion of the Purchase Order, unless otherwise agreed upon by the parties. Seller hereby grants to Tecore and its affiliates a nonexclusive, royalty-free, worldwide, perpetual license to use, make, sell, offer for sale, import or export any Tecore product or process in any field, which incorporates or is based on the Purchase provided to Tecore under the Purchase Order.

15. Confidentiality

All information supplied by Tecore and designated as confidential, shall be held in confidence by Seller. Such information shall not be reproduced, used, or disclosed to others by Seller without Tecore’s prior written consent, and shall be returned to Tecore upon the completion of Seller’s obligations under the Purchase Order or upon Tecore’s demand. Seller shall not, without Tecore’s prior written approval, disclose or permit to be disclosed any information contained in or related to the Purchase Order to any person to whom such disclosure is not necessary in connection with the performance of the Purchase Order. All property furnished hereunder by Tecore shall be maintained in confidence, shall remain Tecore’s property and, together with all copies thereof, shall be returned to Tecore or destroyed as Tecore may direct. Not by way of limitation to the foregoing, Seller shall not use the name, tradename, trademarks, trade dress or service marks owned by Tecore or the logos of Tecore in any publicity releases, news releases, annual reports, product packaging, signage, stationery, print literature, advertising or websites without securing the prior written approval of Tecore. Seller shall not, without prior written consent of Tecore, represent, directly or indirectly, that any good or service offered by Seller has been approved or endorsed by Tecore.

16. Termination

Seller acknowledges that any Goods delivered or Services rendered by Seller under this agreement may be supplied by Tecore to a Government customer (any Agency within the United States Federal Government, or an entity of any State Government), and contracts with such Government customer(s) may include provisions permitting termination of a Purchase Order, or any part thereof, for the convenience of the Government customer(s).

Tecore may at any time terminate a Purchase Order, or any part thereof, for convenience if, and only if, the Government customer exercises its termination for convenience rights under such Government contract, and Tecore has supplied to Seller a copy of the Government’s notice thereof. Tecore’s sole liability upon such termination shall be payment to Seller for any Goods delivered or Services rendered by Seller prior to notice of such termination for which payment has not already been made. Seller shall not be entitled to any damages (including, but not limited to, consequential damages and lost profits) as a result of any such termination.

17. Governing Law; Severability; No Prejudice; No Waiver

The validity, interpretation and performance of the Purchase Order and these terms and conditions shall be governed by the law of the State of Maryland, without reference to its principles of conflicts of laws, and when applicable by the provisions of the Uniform Commercial Code, and not the Convention for the International Sale of Goods. Tecore and Seller consent to the exclusive jurisdiction and venue of the state and federal courts of the State of Maryland. Tecore and Seller waive any objection to jurisdiction or venue therein and consent to service of process by registered mail, return receipt requested. If any provision of the Purchase Order or these terms and conditions is or becomes illegal, invalid or otherwise unenforceable under any applicable law, such provision shall be considered severed therefrom and herefrom and all other provisions of the Purchase Order and these terms and conditions shall remain enforceable and be interpreted, as far as and if possible, so as to give effect to its intended purpose. None of the Purchase Order, these terms and conditions nor any ambiguity found therein or herein shall be construed against a party merely because such party drafted the Purchase Order or these terms and conditions. The rights and remedies set forth in the Purchase Order and these terms and conditions shall not be exclusive and are in addition to all other rights and remedies of the parties thereto or hereto provided by law. Failure of Tecore to exercise any right it may have under the Purchase Order or these terms and conditions on one or more occasions shall not waive its right to exercise the same on another occasion.

18. Entire Agreement; Assignment; Headings

Except with respect to a written agreement between Tecore and Seller concerning the Purchase, the Purchase Order and these terms and conditions set forth the entire understanding of the parties. All terms and conditions incorporated in a signed Purchase Order shall be the controlling document if found to be in conflict with these terms and conditions, and shall supersede all prior understandings, negotiations, and dealings between the parties with respect to the Purchase. No agreement or understanding, oral or written, in any way purporting to modify the terms of the Purchase Order or these terms and conditions shall be binding upon either party unless contained in a writing signed by the party against whom enforcement of such agreement or understanding is sought. Seller shall not assign its rights or obligations under the Purchase Order or these terms and conditions without the prior written consent of Tecore. Tecore may assign its rights and obligations under the Purchase Order and these terms and conditions to any of its affiliates and to any purchaser of all or substantially all of its assets. Headings used herein are for the convenience of reference only and shall not control the construction or interpretation of any of the provisions of the Purchase Order or these terms and conditions.

19. Certain Sites

When the Purchase Order covers the supply of Goods or Services on the premises of Tecore or its affiliates, or on any construction site, Seller shall be subject to such additional terms and conditions as may be imposed with respect to such premises or sites. Seller shall, and shall cause each of its employees, agents, representatives and contractors to, abide by such terms and conditions, and hereby releases and agrees to defend, indemnify and hold harmless Tecore, and its affiliates, officers, directors, employees, agents, customers, users, and their respective successors and assigns from and against any liability or claims of any kind arising out of or relating to their presence on such premises or sites, including without limitation claims for personal injuries suffered by Tecore’s or Seller’s employees, agents, representatives or contractors. Upon request of Tecore, and at no cost or expense to Tecore, Seller shall promptly remove from such premises and sites any person under the control of Seller who violates any safety, health or plant laws, regulations, ordinances or rules or who may cause or threaten to cause a breach of the peace, or who is otherwise objectionable to Tecore for any reason.