DEMICOM TERMS of SALE

All quotations and sales by DemiCom, Inc. (“DemiCom”) are subject to these terms and conditions, those on the front of this document and any addendum to these terms and conditions by DemiCom (collectively, ‘Customer Purchase Order’). All prior proposals, purchase orders, negotiations and representations, if any, are merged herein. Customer will be deemed to have assented to all terms and conditions contained herein by accepting any products, making any payments or ordering any products having previously received these terms and conditions. Upon acceptance of this request for quote by DemiCom, this document shall become a contract subject to these terms and conditions.

1 - Pricing.

Except as otherwise set forth on the front of this document, terms of payment are net 30 days from invoice date unless special terms are or have been agreed to by both DemiCom and Customer; prices are FOB DemiCom’s facilities; and prices do not include any taxes, freight, handling, duty or other similar charges, payment of which will be the sole responsibility of Customer.

Prices are conditioned upon timely payment and any past due balance will accrue interest at the monthly rate of one and one-half percent. Freight charges may be constructed on the basis of standard carrier tariffs and may not reflect actual transportation costs. DemiCom reserves the right to modify terms prior to shipment, require payment in advance, or delay or cancel any shipment or order by reason of Customer’s creditworthiness or should Customer fail to fulfill any obligation when due. Prices are subject to change by DemiCom upon Customer’s rescheduling or reconfiguration of Orders. Prices are also subject to change in response to supplier price increases, whereupon, Customer may cancel the undelivered portion of any affected Order by delivering written notice to DemiCom prior to the shipment thereof and within 10 days of its receipt of notice of the price increase.

2 - Shipping.

In the absence of prior agreement as to shipping, DemiCom shall select a carrier. DemiCom’s responsibility for any loss or damage ends, and title passes, when products are delivered to the carrier, to Customer, or to Customer’s agent (including, without limitation, any test house or value added service provider), whichever occurs first. Customer will pay for storage charges if products are held by DemiCom at Customer’s request pending instructions or rescheduled delivery.

3 - Cancellation.

Since products are specifically purchased on Customer’s behalf, no Customer Purchase Order may be cancelled, rescheduled or reconfigured without DemiCom’s prior written authorization and, in such event, Customer will be liable to DemiCom for any additional costs and expenses incurred by DemiCom.

Products are deemed accepted by Customer unless Customer notifies DemiCom in writing within 10 days of delivery of product shortages, damage or defect. No returns may be made for any reason without a Return Authorization Form issued by DemiCom. If Customer refuses to accept tender or delivery of any products or returns any products without authorization from DemiCom, such products will be held by DemiCom awaiting Customer’s instruction for 15 days, after which DemiCom may deem the products abandoned and dispose of them as it sees fit, without crediting Customer’s account.

4 - Delivery.

DemiCom will not be liable for any failure or delay in its performance or in the delivery or shipment of products, or for any damages suffered by Customer by reason of such failure or delay, when such failure or delay is caused by, or arises in connection with, any Act of God, fire, flood, accident, riot, earthquake, severe weather, war, governmental interference or embargo, strike, terrorist act, shortage of labor, fuel, power, materials or supplies, delay in delivery by DemiCom’s suppliers or any other cause or causes beyond DemiCom’s reasonable control. DemiCom reserves the right to cancel without liability any order, the shipment of which is or may be delayed for more than 30 days by reason of any such cause. DemiCom reserves the right to allocate in its sole discretion among Customers or potential Customers, or defer or delay the shipment of, any product which is in short supply.

5 - Entire Agreement.

These terms and conditions contain the complete and entire agreement between the parties with respect to the subject matter of this transaction. No other purchase order or other Customer document will be deemed an offer or counter-offer and any such document is specifically rejected. DemiCom’s failure to object to any document, communication or act of Customer will not be deemed a waiver of any of these terms and conditions. Any addition or change to these terms and conditions must be specifically agreed to in writing by a duly authorized officer of DemiCom before becoming binding on DemiCom.

6 - Import/Export.

Any or all products may be subject to export or resale restriction or regulation, and Customer acknowledges that it will comply with such regulations or restrictions. Any or all products may have been imported. Country of origin information is as provided to DemiCom by its suppliers and is, where applicable, located on the products themselves or the supplier’s innermost packaging thereof.

7 - Assignment.

Customer shall not be permitted to assign this contract with DemiCom to any third party without the express written permission of DemiCom.

8 - Limited Warranty.

DemiCom warrants those products assembled or customized by it against defects caused solely by faulty assembly or customization for 30 days after delivery. All other products, and the components and materials utilized in any assembled or customized products, are covered by, and subject to, the terms, conditions, and limitations of the manufacturer’s standard warranty, which warranty is expressly in lieu of any other warranty, express or implied, of or by DemiCom or the manufacturer. Customer’s exclusive remedy, if any, under these warranties is limited, at DemiCom’s election, to any one of (a) refund of Customer’s purchase price, or (b) replacement of any such product. Customer acknowledges that except as specifically set forth or referenced in this paragraph, THERE ARE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, IN ADVERTISING MATERIALS, BROCHURES, OR OTHER DESCRIPTIVE LITERATURE) BY DEMICOM OR ANY OTHER PERSON, INCLUDING DEMICOM’S AGENTS, EMPLOYEES AND REPRESENTATIVES, EXPRESS OR IMPLIED, AS TO THE CONDITION OR PERFORMANCE OF ANY PRODUCTS, THEIR MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE. DEMICOM ASSUMES NO RESPONSIBILITY OR LIABILITY WHATSOEVER FOR MANUFACTURER’S PRODUCT SPECIFICATIONS OR THE PERFORMANCE OR ADEQUACY OF ANY DESIGN OR SPECIFICATION PROVIDED TO DEMICOM BY OR ON BEHALF OF CUSTOMER. Use of the Customer’s part number on this document or on any products is for convenience only and does not constitute any representation by DemiCom with respect to the performance, specifications, or fitness of any part for any purpose.

9 - Purchase Money Security Interest.

DemiCom retains a purchase money security interest in all products sold by DemiCom to Customer, and in the proceeds of any resale of such products, until the purchase price and any other charges due to DemiCom have been paid in full. Customer agrees to execute any financing statements DemiCom may request in order to protect DemiCom’s security interest and hereby authorizes DemiCom to execute and irrevocably appoints DemiCom’s attorneys for the execution of such financing statements. Upon any breach by Customer of these terms and conditions, DemiCom will have all rights and remedies of a secured party under the Uniform Commercial Code, which rights and remedies will be cumulative and not exclusive. Customer is responsible for all costs and expenses incurred by DemiCom in collecting any sums owing by Customer (which may include, but are not limited to, collection agency fees and costs, and reasonable attorneys’ fees). If DemiCom incurs costs collecting on any judgment arising out of Customer’s breach, Customer will be responsible for them, and this provision will survive the entry of any such judgment. DemiCom shall have the right to offset any sum owed by DemiCom or any DemiCom subsidiary or parent to Customer against any sum owed by Customer to DemiCom or any DemiCom subsidiary or parent. Customer waives any right to assert any counterclaim, set-off or recoupment claims in any action brought by DemiCom.

10 - Government Contract.

If this Customer Purchase Order is placed under a contract with the United States Government, DemiCom agrees to comply with those contract provisions and regulations with which, pursuant to law, it must comply and of which Customer has, at the time of order placement, placed DemiCom on notice. In no event will United States Government Cost Accounting Standards apply. All rights in technical data and software owned or licensed by DemiCom or the manufacturer are hereby reserved and deemed restricted or limited. No provision of Customer’s contract with the government will be binding on DemiCom or the manufacturer except as expressly set forth in this paragraph.

11 - Restrictive Use.

Unless specifically otherwise agreed in writing by DemiCom, Customer acknowledges and agrees that products sold by DemiCom are not intended for and will not be used in life support systems, human implantation, nuclear facilities or systems or any other application where product failure could lead to loss of life or catastrophic property damage. Customer will defend, indemnify and hold DemiCom, and its officers, directors, employees, agents and advisors, harmless from and against any and all claims, suits, obligations, judgments, losses, damages and costs, including without limitation reasonable attorneys’ fees and expenses arising out of or in connection with Customer’s breach of the provisions of this paragraph.

12 - Compliance with Labor Laws.

DemiCom certifies that it complies with all applicable requirements of Sections 6, 7 and 15 of the Fair Labor Standards Act, as amended, and of regulations and orders of the United States Department of Labor issued under Section 14 thereof.

13 - Limitation on Liability.

Except for the warranty coverage referenced in paragraph 3, above, DEMICOM WILL NOT HAVE ANY LIABILITY OR OBLIGATION TO CUSTOMER OR ANY OTHER PERSON FOR ANY CLAIM, LOSS, DAMAGE, OR EXPENSE CAUSED IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, BY THE INADEQUACY OF ANY PRODUCTS FOR ANY PURPOSE, BY ANY DEFICIENCY OR DEFECT IN ANY PRODUCT(WHETHER OR NOT COVERED BY ANY WARRANTY), BY THE USE OR PERFORMANCE OF ANY PRODUCTS OR BY ANY FAILURE OR DELAY IN DEMICOM’S PERFORMANCE HEREUNDER. DEMICOM SHALL IN NO EVENT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, COLLATERAL, DIRECT OR INDIRECT, SPECIAL OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUE, WORK STOPPAGE, IMPALEMENT OF OTHER GOODS, LOSS BY REASON OF SHUTDOWN OR NON-OPERATION OR INCREASED EXPENSES OF OPERATION, WHETHER OR NOT SUCH LOSS OR DAMAGE IS BASED ON CONTRACT, WARRANTY, NEGLIGENCE, INDEMNITY, STRICT LIABILITY OR OTHERWISE.

14 - Restrictions on Value Added Service.

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.

15 - Software restrictions.

Any software included in or relating to products is supplied by the manufacturer. DemiCom makes no representation or warranty with respect there to and will have no liability in connection therewith. Customer agrees to comply with the manufacturers or other requirements with regard to proprietary and similar rights in and to such software (including any requirement to enter into a separate license agreement and prohibitions against duplicating or disclosing the same), even if the seal on any “shrink wrapped” software has been broken by DemiCom, and will indemnify DemiCom against and hold it harmless from any and all liability, claims, suits, obligations, judgments, losses, damages and costs, including without limitation reasonable attorneys’ fees and expenses arising out of or in connection with a breach or purported breach of such requirements.

16 - Severability.

If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other provision and such invalid provision shall be deemed to be severed from this Customer Purchase Order.

17 - Jurisdiction, Venue and International Arbitration.

The provisions of these terms and conditions shall be interpreted in accordance with the laws of the State of California without resort to said state’s Conflict of Law rule, and in accordance with its fair meaning and not strictly against either party. Any claims arising hereunder or relating hereto shall be prosecuted only in the appropriate court of the State of California within the county of Ventura. The parties hereby consent to venue and to the exercise of personal jurisdiction over them in such courts and agree not to make any claim or demand in any other jurisdiction or forum.Additionally, if Customer is a foreign entity: any dispute, controversy or claim arising out of or relating to this contract, including the validity, invalidity, breach, or termination thereof, shall be finally settled by binding arbitration administered by the American Arbitration Association and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction. The arbitration shall be conducted in English in Los Angeles, California, United States in accordance with the ICC Arbitration Rules, and the substantive laws of the State of California.  There shall be one arbitrator, named in accordance with such rules.

Should you have any questions, please contact your DemiCom Account Manager.