Terms and Conditions of Sales

TERMS AND CONDITIONS OF SALES

1. Scope

These Terms and Conditions of Sale (“T&C”) apply to all orders for hardware, software and other computer system services from Advantec Computer Systems, LLC (“Supplier”), unless Supplier and a Customer have entered into a separate written agreement signed by both parties that applies to a Customer’s orders for specific goods or services. Supplier’s computer systems (the “Computers”) are assembled by Supplier and comprised of hardware and software components that Supplier procures from third parties.

2. Purchase Order

Prior to the Effective Date of any sale, Customer will issue a binding 1 year Blanket Purchase Order for a minimum quantity of Computers (the “Purchase Order”). The Purchase Order shall include a start date and an end date and shall specify one or more dates (each a “Ship Date”) on which a specified quantity of Computers, for each bill of materials (“BOM”), shall be shipped. Quantities shall be specified in multiples determined by the Supplier. Supplier will be responsible for determining its Computer build requirements based on the Purchase Order. The parties acknowledge and agree that the terms and conditions of any such purchase order not on Supplier’s standard Purchase Order shall not be binding upon the parties or in any way modify, amend, or supersede the T&C.

2.a Order of Precedence. These T&C including the documents referenced herein shall apply to the exclusion of all other general terms and conditions incorporated in or referred to in any documentation submitted by Customer to Supplier.

Subject to the foregoing, in case of any conflict or inconsistency the following order of precedence shall apply:

A. The terms of an ongoing supply agreement signed by the Supplier and the Customer;

B. The terms of a Purchase Order, where either: (i) these T&C expressly provide for the parties to optionally deviate from the relevant provision of these T&C; or (ii) where the Purchase Order states that the parties wish to deviate from the terms of these T&C for the purpose of the individual transaction and the parties expressly accept the deviation;

B. The terms of any Schedule to a Purchase Order or ongoing supply agreement; and

C. The main body of these T&C.

3. Order Commitment

Customer shall accept delivery of and pay Supplier for the total number of Computers scheduled for a particular Ship Date. The quantity specified in the first Ship Date shall be binding. Customer may change the quantity specified in any subsequent Ship Date only upon written notice received by Supplier at least 90 days prior to such Ship Date.

4. Pricing

Prices quoted in the Attachment A to Purchase Order shall not be increased during the term of that order, except to the extent that prices charged to Supplier for the components that comprise the Computers increase. Notwithstanding the foregoing, prices may change on each anniversary of the Effective Date of any ongoing supply agreement between Supplier and Customer upon 90 days prior written notice to Customer. If Customer does not wish an ongoing supply agreement to renew in light of such change, Customer may terminate an ongoing supply agreement effective at the end of the then-current term upon 90 days prior written notice.

5. Taxes

Customer shall pay or reimburse Supplier for all applicable federal, state, municipal, and other government value added (VAT), sales, use, excise, withholding, personal property, goods and services and other similar taxes, governmental fees, levies, customs and duties resulting from Customer’s purchase, except for taxes based on Supplier’s net income, gross revenue, or employment obligations. Supplier’s pricing does not include such taxes and fees.

6. Invoicing

Invoices shall be issued at the time the Computers are shipped. All invoices must include the following information: Customer Purchase Order number, Invoice date and number, and a description, part number and revision, quantity, unit of measure, unit price and extended price of for all line items. All invoice terms will be deemed accurate unless Customer advises Supplier in writing of a material error within 10 days following receipt. If Customer advises Supplier of a material error, (a) any amounts corrected by Supplier in writing must be paid within 14 days of correction, and (b) all other amounts shall be paid by Customer by the due date. If Customer withholds payment because Customer believes an invoiced amount is incorrect, and Supplier concludes that the amount is accurate, Customer must pay interest on the unpaid disputed amount from the due date until Supplier’s receipt of payment. Customer may not offset, defer or deduct any invoiced amounts that Supplier determines are correct following the notification process stated above.

7. Shipping

Shipping terms are: F.O.B. Origin unless otherwise agreed. Supplier will arrange for shipping with Customer’s designated carrier to the ship-to address indicated in the Purchase Order, but such costs are the responsibility of the Customer unless otherwise agreed to in writing. Risk of loss and damage is Customer’s once Supplier delivers the Computers to the carrier. Customer shall notify Supplier within 21 days of the invoice date if Customer believes any Product included in its Order is missing, wrong, or damaged

To ensure efficient receiving and invoicing, Supplier shall mark all shipping containers with Customer part number, and quantity.

7.a  Transfer of Risk and Title; Costs. Risk of loss for equipment and for physical media containing licensed software transfers to Customer upon Delivery. “Delivery” for equipment occurs when Supplier provides the equipment to the carrier at Supplier’s designated point of shipment.  “Delivery” for Software occurs either when Supplier provides physical media (or the Equipment on which it is installed) to the carrier at Supplier’s designated point of shipment, or the date Supplier notifies Customer that Software is available for electronic download. Unless otherwise agreed, cost of transit insurance on behalf of Customer shall be included in the total price stated on an invoice or Purchase Order.

8. Payment

Customer shall pay Supplier’s invoices in full within 30 days from invoice date.

All unpaid invoices shall bear interest at an amount equal to 1.5% of the outstanding balance per month (or the maximum rate of interest allowed by law), commencing upon the date payment is due. Customer's failure to make timely payment may result in collection proceedings, revocation of credit, stoppage of shipment, delay or cessation of future deliveries, repossession of unpaid delivered goods and termination of this Agreement. Supplier shall have no continuing obligation to deliver Products on credit, and any credit approval may be withdrawn by Supplier at any time and without prior notice. Supplier retains (and Customer grants to Supplier) a security interest in the Computers to secure payment in full and compliance with this Agreement, and Customer agrees to execute any additional documents necessary to perfect such security interest. In the event the sales invoice shall be placed by Supplier in the hands of an attorney for the purpose of collection, with or without litigation, or for the purpose of enforcing Supplier's security interest in the Computers, the Customer agrees to pay any and all costs associated with such placement, including, without limitation, attorney's fees and costs incurred prior to, during, or subsequent to trial, and including, without limitation, collection, bankruptcy, or other creditor's rights proceedings.

9. Specifications

All items delivered pursuant to a Purchase Order or an ongoing supply agreement shall meet the Customer’s written specifications or drawings provided by Customer to Supplier at the revision level indicated on the latest Purchase Order, subject to the warranty provisions set forth in Section 15 below.

Any changes in specifications must be agreed to in writing by the parties and referenced in corresponding Purchase Orders. In the event a party wishes to propose a change to the specifications, an Engineering Change Notice (“ECN”) must be submitted by such party to the other party and the Supplier will communicate any changes to cost or delivery that would result from such changes. If Customer wishes to proceed with the revised specifications notwithstanding any changes to costs or delivery specified by the Supplier, Customer will submit a new purchase order referencing the latest revision level of the specifications.

10. Discontinuation

Supplier shall have the right to discontinue the Computers covered by a Purchase Order or an ongoing supply agreement, provided that Supplier agrees to continue to supply, for a period of 5 years from the last date of sale hereunder (i) component parts that are still available from the component suppliers and (ii) sustaining support for such Computers. Such components and support shall be provided at Supplier’s prices and fees then in effect. To the extent replacement of any component is necessary in the course of providing such support, supplier may substitute like or upgraded parts if identical parts are not available, subject to the notice requirement in Section 11 below. Should discontinuation of production of the Computers covered by a Purchase Order or an ongoing supply agreement or components comprising the Computers occur for any reason, including “end of life” of a particular component, Supplier will provide Company with the opportunity for a last time purchase, subject to availability of component parts.

11. Change Control

Supplier shall endeavor to provide Customer with 90-day notice of any discontinuation or unavailability of any component parts via written formal change notification, but at a minimum shall provide such notice within 5 business days of receiving notice of such discontinuation from the component supplier in question.

12. Quality Assurance

Supplier shall develop and maintain an ongoing internal quality and manufacturing plan. During the term of this agreement, Customer may at any time, with 10-day notice, conduct internal audits and an inspection of Supplier's manufacturing facility and processes during normal business hours for the sole purpose of determining whether Supplier is complying with such internal quality and manufacturing plan. Such inspection shall be made under the supervision of Supplier’s personnel and shall be subject to Customer signing a mutually acceptable nondisclosure agreement.

13. Vendor License Agreements

Customer’s rights to use the software delivered with the Computers by Supplier are governed by the terms of the software manufacturers’ applicable end-user license agreements. Unless different terms have been agreed between the parties, microcode, firmware or operating system software required to enable the Computers with which they are shipped to perform their functions, is licensed for use solely on such Computers.

14. Indemnification

Customer shall indemnify, defend and hold harmless Supplier, for any and all losses, damages, settlements and expenses (including reasonable attorney’s fees) arising from, connected with, or related in any way to any third party claim alleging that any aspect(s) of the design of the computers delivered hereunder that was/were left to the sole discretion of, or was/were specified by Customer, or the use thereof, infringes any intellectual property right of such third party (together referred to herein as “Claims”) provided, that Supplier shall: (i) give Customer prompt written notice of any Claims for which Supplier may seek indemnification from Customer; (ii) permit Customer to participate in the defense of the same through its counsel, subject to any applicable privileges; (iii) give Customer relevant information in its possession relating to such Claims; (iv) assist in such defense; and (v) not compromise or settle any such Claims without Customer’s written consent.

Supplier shall indemnify and hold harmless Customer, for any and all losses, damages, settlements and expenses (including reasonable attorney’s fees) arising from, connected with, or related in any way to any third party claim alleging that Supplier's performance of its obligations hereunder left to the discretion of Supplier or a subcontractor retained by supplier to perform a portion of the obligations imposed under this agreement, infringes any intellectual property right of any third party (together referred to herein as "Claims for Supplier"), provided, that Customer shall: (i) give Supplier prompt written notice of any Claims for which Customer may seek indemnification from Supplier; (ii) permit Supplier to participate in the defense of the same through its counsel, subject to any applicable privileges; (iii) give Supplier relevant information in its possession relating to such Claims; (iv) assist in such defense; and (v) not compromise or settle any such Claims without Supplier written consent.

15. Limited Warranty

Supplier expressly warrants that for a period of 1 year from the date of the relevant invoice (the “Warranty Period”), the Computers shall conform to written specifications and drawings provided by Customer and referenced on an accepted Purchase Order, and shall be free from material defects in workmanship. If, during the Warranty Period, it is determined by Customer that a Computer does not meet such specifications, Customer shall return the Computer to Supplier prior to the end of the Warranty Period and Supplier’s sole and entire obligation shall be to repair the Computer or replace it at Supplier’s discretion. If Supplier is unable to effect such within a reasonable time, then Supplier will refund the amount Customer paid for the affected Equipment as depreciated on a straight-line basis over a 5 year period, upon return of such Equipment to Supplier.

Notwithstanding the foregoing, Supplier shall have no obligation to repair or replace, and no liability to Customer, if the problem is found to be (i) due to misuse or mishandling by anyone other than Supplier; (ii) due to environmental causes; or (iii) due to circumstances beyond Supplier’s control.

For any components within the Computers, Supplier agrees to pass through to Customer whatever warranties that the manufacturers of the hardware or licensors of the software components provide with their respective products. Supplier warrants that it has clear title to the goods and that the goods and services shall be delivered free of liens and encumbrances.

Other than the warranties set forth in this paragraph 15, and to the maximum extent permitted by applicable law, Supplier makes no other express warranties and DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED BY LAW, INCLUDING THE WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

Supplier is not be responsible for damages or delays resulting from Acts of God, and from other actions beyond its control, both governmental and otherwise, including but not limited to war, terrorism, riot, seizure, and/or embargo.

16. Limitation of Liability:

The limitations, exclusions and disclaimers stated below apply to all disputes, claims or controversies (whether in contract, tort (including negligence) or otherwise) related to or arising out of a Purchase Order or ongoing supply agreement (“Dispute”). The terms of this paragraph are agreed allocations of risk constituting part of the consideration for Supplier’s sale of Products and Services to Customer and will apply even if there is a failure of the essential purpose of any limited remedy, and regardless of whether a party has been advised of the possibility of the liabilities.

IN NO EVENT WILL SUPPLIER (or its hardware and software vendors) BE LIABLE FOR SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT, LOSS OF REVENUE, LOSS OF OPPORTUNITY, LOSS OF USE OF USE, OR PROCUREMENT OF SUBSTITUE PRODUCTS OR SERVICES. IN NO EVENT WILL SUPPLIER’S LIABILITY EXCEED THE REPAIR, REPLACEMENT OR COST OF THE SPECIFIC PRODUCT PURCHASED FROM SUPPLIER. SOME STATES MAY NOT RECOGNIZE A DISCLAIMER OR LIMITATION OF WARRANTIES OR LIMITATION OF LIABILITY SO THE ABOVE DISCLAIMERS MAY NOT APPLY. CUSTOMER MAY ALSO HAVE DIFFERENT OR ADDITIONAL RIGHTS AND REMEDIES THAT VARY FROM STATE TO STATE.

Prevention and Mitigation. Customer is solely responsible for its data. Customer shall implement IT architecture and processes enabling Customer to prevent and mitigate damages in line with the criticality of the systems and data for Customer’s business and its data protection requirements, including a business recovery plan. In that regard, Customer shall: (i) provide for a backup process on a regular (at least daily) basis and backup relevant data before Supplier performs any remedial, upgrade or other works on Customer’s IT systems; (ii) monitor the availability and performance of its IT environment during the performance of Services; and (iii) promptly react to messages and alerts received from Supplier or through notification features of the Products and immediately report any identified issue to Supplier. To the extent that Supplier has any liability for data loss, Supplier shall only be liable for the cost of commercially reasonable and customary efforts to recover the lost data from Customer’s last available backup.

17. Term and Termination

Ongoing Supply Agreements shall remain in effect for one year, and automatically renew for one-year terms thereafter, unless terminated sooner in accordance with the following paragraphs:

Termination for Convenience. Either Party may terminate an ongoing supply agreement for convenience (i) effective on any anniversary of the Effective date upon 60 days written notice; or (ii) effective at any point in time upon 6 months written notice.

Termination for Cause. Either party may terminate an ongoing supply agreement immediately should (a) the other party materially breach this Agreement and fail to cure such breach within forty-five (45) days after receiving written notice thereof, or (b) if (i) the other party becomes insolvent or files a petition under relevant bankruptcy or similar laws or is declared bankrupt, or (ii) a receiver, manager, liquidator, trustee in bankruptcy, or other office with similar power is appointed over all or a substantial part of the assets of the other party.

Results of Termination. In the event of termination under any of the foregoing circumstances, the obligations of the parties shall continue to apply with respect to any Ship Date preceding the effective date of termination. In the event of Termination by Customer for any reason other than for cause, or Termination by Supplier for any reason but convenience, Customer shall still be required to purchase the remainder of the total number of Computers specified in the Purchase Order.

18. Entire Agreement

These T&C represent the complete and final agreement between the Customer and Supplier for the matters set forth herein. Terms contained in Customers' purchase orders, offers to buy, terms and conditions, and the like will have no effect, and do not modify or supplement the CTS, even if Supplier does not expressly object to those terms when accepting a Customer order. In the event any section or portion of a section of this T&C is deemed unlawful or unenforceable, that section or portion of a section will be stricken, and the remaining terms will continue in full force and effect.

19. Force Majeure

Neither party shall be liable to the other for any delay or failure to perform any of its obligations (other than for the payment for goods and services) caused by Force Majeure. If such delay or failure lasts longer than 30 days, then the other party may immediately terminate, in whole or in part, the relevant Purchase Order by giving written notice to the delayed party. “Force Majeure” refers to circumstances beyond a party’s reasonable control including, without limitation, act of God, war, riot, civil commotion, terrorist acts, malicious damage, governmental or regulatory actions, accident, breakdown of plant or machinery, local or national emergency, explosions, fire, natural disasters, severe weather or other catastrophes, epidemics/pandemics, general import/export/customs process problems affecting supplies to Supplier or to Customer, shortages in materials, failure of a utility service or transport network, embargo, strike, lock out or other industrial dispute (whether involving Supplier’s workforce or any other party), or default of suppliers or subcontractors due to any of the preceding events.

20. Relationship of the Parties

The parties are independent contractors for all purposes, and Supplier shall perform its obligations hereunder as an independent contractor of Customer. A party cannot obligate any other party without prior written approval. No party is responsible for the acts or omissions of any other. Nothing contained herein is intended or shall be construed to create any partnership, joint venture or agency relationship between the Parties.

21. Third Party Rights.

There are no third-party beneficiaries to any Purchase Order or ongoing supply agreement under any laws.

22. Governing Law; Jurisdiction

The T&C and any Dispute between the Supplier and a Customer is governed by the laws of the Commonwealth of Massachusetts and the federal laws of the United States. To the extent permitted by law, the state and federal courts located in Massachusetts will have exclusive jurisdiction for any Disputes. Customer and Supplier agree to submit to the personal jurisdiction of the state and federal courts located within or for Middlesex County, Massachusetts, and agree to waive any and all objections to the exercise of jurisdiction over the parties by those courts and to venue in those courts.