Terms and Conditions of Purchase

  1. Acceptance

    1.1 The terms and conditions contained herein are by this reference incorporated into all purchase orders issued by US Digital Corporation (hereinafter referred to as "US Digital" or "Buyer"). Upon US Digital placing an order and Supplier accepting that order, the Standard Purchase Terms and Conditions outlined in this document are deemed to be agreed upon by the Supplier. They are considered in effect and form a part of the order. These Standard Purchase Terms and Conditions incorporated into the order and the order are hereinafter collectively referred to as the "Purchase Order."

    1.2 Upon Supplier accepting the Purchase Order (whether by requested written or other acknowledgment, shipment of Products, the commencement of performance of services, or by any other conduct), Supplier shall not seek to: (i) modify, (ii) contradict, (iii) negate, or (iv) add to, any term of the Purchase Order (each a "Supplier Add"). Supplier Adds shall be of no force or effect, and the terms of the Purchase Order alone shall bind the parties.

    1.3 Supplier shall not contend or maintain, under any circumstances, that Buyer's performance, acceptance of goods or services, or other action in connection with the Purchase Order constitutes Buyer's acceptance of any terms or conditions other than those expressly set out and those incorporated by reference in the Purchase Order.

    1.4 The delivery date stated in the Purchase Order will be deemed accepted by Supplier unless Supplier objects in writing to Buyer within five (5) business days of its receipt of the Purchase Order or unless otherwise set out in the Purchase Order.

    1.5 These terms and conditions may only be modified with the Buyer's express written consent.

  2. Terms Used Herein

    2.1 "Defect" means the failure of the Product to comply with the warranty provided in Section 7.

    2.2 "Epidemic Failure" means a Defect in more than one unit of the same Product where each such Defect (1) has a similar root cause, and (2) all such Defects occur in one percent or more of units received by Buyer.

    2.3 "Law" means any U.S. or non-U.S. federal, national, state, local or similar statute, law (including common law), treaty, ordinance, code, directive, policy, legal requirement, other government restriction or regulation promulgated or entered into by any regulatory authority of competent jurisdiction, tribunal, judicial or arbitral body, administrative agency or commission or other government authority or instrumentality.

    2.4 "Product(s)" means, without limitation, any component, part, sub-assembly, assembly, raw material, or other commodity purchased by Buyer from Supplier.

    2.5 "Purchase Order" means these Standard Purchase Terms and Conditions collectively as incorporated into a US Digital order as referenced in Section 1.1 above and the order itself.

    2.6 "Supplier" means the party entering into the Purchase Order and any related Purchase Agreement to supply Products to Buyer.

  3. Delivery and Quantity

    3.1 Time is of the essence for delivery and all other obligations arising herein. "Delivery Date" shall mean the date Supplier is required to deliver the Product to the location designated on Buyer's Purchase Order.

    3.2 If Supplier does not meet the scheduled Delivery Dates, and Supplier fails to demonstrate to Buyer that it has taken its best commercial efforts to comply with meeting the Delivery Dates, then Buyer may, at its option, cancel the Purchase Order, or any part of the Purchase Order, without incurring any liability therefore. If Buyer requests expedited shipment of any late deliveries, Supplier will be responsible for shipping cost.

    3.3 Supplier will not ship ahead of the scheduled Delivery Date unless authorized by Buyer in writing. Buyer may return, at its option, all unauthorized early shipments to Supplier at Supplier's expense. Payments for early shipments unauthorized by Buyer will be postponed until the applicable due date after the scheduled Delivery Date.

    3.4 Supplier, when it has reason to believe that deliveries will not be made as scheduled, will provide immediate written notice to Buyer, setting forth the cause of such anticipated delay. Supplier shall be, in addition to any other remedy available to Buyer, liable for Buyer's documented additional expenses due to its failure to deliver if it fails to provide such notice.

    3.5 Notwithstanding the above, neither Buyer nor Supplier shall be liable for delays or defaults due to fires, floods, earthquakes, riots, storms, or acts of civil or military authority and without their fault or negligence. If any such condition exists as to Supplier, Buyer may, at its option, cancel the affected Purchase Order in whole or in part.

    3.6 The shipping terms of delivery are FCA named location ("FCA") as that term is defined in Incoterms 2010. If both parties agree, the terms of delivery may be changed. For FCA terms, the Supplier must utilize the carriers or forwarder provided in the Buyer's shipping guidelines. If the Supplier uses any other carrier or forwarder, the Supplier will be requested to credit Buyer for any additional costs. If carrier or forwarder is not specified in the shipping guidelines, the Supplier will request shipping instructions from Buyer.

  4. Packing and Shipping

    4.1 Shipments must be preserved, packaged, handled, and packed to permit efficient handling, protect from loss or damage, and comply with Buyer specifications included on the Purchase Order, government regulations, industry standards, and carrier requirements. The Supplier will be liable for any loss or damage due to its failure to properly preserve, package, handle or pack any shipment.

    4.2 No charges shall be allowed for handling, packing, crating, returnable containers, import duties, documentation, or media unless specifically provided for in the Purchase Order.

    4.3 All containers, packing lists, bills of lading, and invoices must list the Purchase Order number. Each Purchase Order number must be placed on the shipping documents and in the reference fields of automated shipping systems. When a shipment contains multiple Purchase Orders, each Purchase Order number must be listed and separated by a comma.

    4.4 Suppliers that import to the United States of America will comply with the security recommendations in accordance with the US Customs Trade Partnership Against Terrorism (C-TPAT).

    4.5 Supplier will provide Buyer or Buyer's designated Agent with all necessary information to complete the Importer Security Filing (ISF) when required. The Supplier will make every reasonable effort to ensure information is provided timely and accurately and in such a manner as stipulated by Buyer. Supplier agrees to reimburse Buyer for any fines and/or penalties incurred due to the Supplier providing inaccurate information or the Supplier's failure to provide information. If the Supplier provides inaccurate information or refuses to supply the required ISF information, the Buyer may terminate the relationship with the Supplier, without recourse, subject to the terms outlined in the Purchase Order.

  5. Quality/Inspection

    5.1 Supplier will deliver Products conforming to applicable specifications (i.e., drawings, specification sheets, etc.) and free of any defects and otherwise comply with the warranties outlined in Section 7.1.

    5.2 Upon request, the Supplier will make available to the Buyer all Product test data relating to qualification and production yield as evidence of conformance to specifications and quality control.

    5.3 All Products will be subject to inspection and approval by the Buyer at the Buyer's facilities or such other location as specified by the Buyer. The Buyer will have the right to inspect the Products at any time during the manufacturing process at the Supplier's facilities provided the Buyer gives reasonable advance notice of each visit, and such visit does not disrupt the manufacturing capability of the Supplier or violate the Supplier's safety or cleanroom procedures.

    5.4 Buyer may, at its option, reject and return any Products which contain defective material or workmanship or which do not conform to the Purchase Order, applicable drawings, specifications, or samples. Rejected Products which Buyer returns to Supplier and replacement or repaired Products which are returned to Buyer shall be returned at Supplier's risk and expense.

    5.5 Buyer may, at its option, use a reasonable sampling plan. Lots that fail to pass such sampling plans may, at Buyer's option, be inspected 100% at Supplier's reasonable expense. Buyer may return any defective or nonconforming articles or lots to Supplier at Supplier's risk and expense.

    5.6 Exercise of these remedies shall not be exclusive of or without prejudice to any other remedies provided in law or equity available to the Buyer.

    5.7 Payment for any Products or services will not constitute final acceptance.

    5.8 If Product is rejected, Supplier agrees to supply Buyer with a return material authorization number (including replacement Product if requested by Buyer) and a containment plan within twenty-four (24) hours of Supplier's receipt of notification. Supplier further agrees to provide Buyer with initial failure analysis and corrective action response within seven (7) business days of notification. Supplier agrees to provide failure analysis and corrective action in Buyer's requested format. If replacement Product is found to be non-conforming or delivery of replacement Product is not fulfilled as required, Buyer may, at its option, cancel the related Purchase Order in whole or part, without penalty or liability whatsoever to Buyer and/or Buyer may avail itself of any remedy set forth herein or according to applicable law.

  6. Pricing, Invoices, and Payment

    6.1 Supplier will sell Buyer the Products or services at a price specified under the Purchase Order. In no event will Buyer be liable to Supplier with respect to an amount in excess of the price contained on each Purchase Order.

    6.2 Supplier represents and warrants that Supplier will promptly pass on price decreases and any incentive or other discount program pricing to Buyer.

    6.3 Invoices must reference the Purchase Order number for each separate shipment made against the Purchase Order.

    6.4 All invoices shall be issued, and payment shall be made in the currency stated on the face of the Purchase Order.

    6.5 Buyer shall not be liable for any federal, state, or local taxes unless Buyer cannot supply an appropriate tax exemption certificate. Buyer will never be liable for the Supplier's net income, capital, net worth, or similar taxes. Any applicable taxes shall be separately stated on the face of the Purchase Order and separately invoiced.

    6.6 Subject to Buyer's rights under the Purchase Order, Buyer will pay all invoices within sixty (60) days of receipt of invoice unless otherwise agreed to in writing by the parties.

  7. Warranties

    7.1 Supplier warrants that upon Buyer's taking title to Product and for a period of two (2) years thereafter, notwithstanding any termination or cancellation of all, or any portion of these Standard Purchase Terms and Conditions, all Products purchased hereunder (1) will be free from defects in design, material, and workmanship; (2) will be new and not used or reconditioned except as otherwise permitted under the terms of these Terms and Conditions; (3) will conform to the published specifications, drawings, and/or descriptions provided to Buyer before its purchase hereunder; (4) will be fit for the purpose intended; (5) will be of merchantable quality and all services will be rendered in a good and workmanlike manner. Buyer's approval of designs furnished by Supplier or acceptance of Product will not relieve Supplier of its obligations hereunder. The warranties set forth herein are in addition to and not in lieu of any other warranties given by Supplier and warranties created or existing pursuant to applicable law. The warranties contained in this Section 7 are fully transferable by Buyer, at Buyer's option, to Buyer's customers.

    7.2 Supplier warrants perpetually that as of the time of transfer of title or ownership to Buyer, Supplier had title to the Products, the Products were free of all liens and encumbrances, and Supplier was authorized to sell the Products to Buyer.

    7.3 The warranties set forth herein shall survive inspection, test, acceptance, and payment and shall accrue to Buyer, its successors, assigns, and customers.

    7.4 Warranty failures may be returned to Supplier for repair, replacement, or credit, at Buyer's option, and at Supplier's risk and expense. Repaired and replacement Products accepted by Buyer shall be in "like-new condition" and subject to full original warranties as set forth above.

    7.5 If Supplier breaches any warranty specified herein or afforded by law, Buyer shall be entitled to avail itself cumulatively of all remedies in law or in equity.

    7.6 If there is an Epidemic Failure, Supplier will promptly do one or more of the following, as specified by Buyer, and at Supplier's expense: Investigate the Epidemic Failure and determine its cause, including testing or replacing all Units delivered during or after the Epidemic Period, and promptly notify Buyer of the results of the said investigation; Supply on-site technical support and all necessary Products to repair or replace Products known to be affected by the Epidemic Failure which was delivered to Buyer during the Epidemic Period; Accept the return of all Products which were affected by the Epidemic Failure or were delivered to Buyer during the Epidemic Period for either repair or replacement at no charge to Buyer pursuant to which Supplier will pay all shipping costs and bear the risk of loss both to and from Supplier's factory; and/or Further, Supplier shall ensure that the appropriate quality controls and other measures are taken so that all Products of a similar type supplied subsequent to the date of such an Epidemic Failure will not suffer the problems that caused or resulted from the Epidemic Failure.

    7.7 Notwithstanding anything to the contrary in this Section 7, Buyer shall be entitled to full compensation for any and all losses, damages, costs, and expenses (including but not limited to rework costs, overtime charges, cost of manufactured or partially manufactured assemblies, fines and penalties paid by Buyer and/or claimed by any customer of Buyer related to a breach of Supplier's warranties hereunder) and other similar amounts suffered or incurred.

  8. Changes

    8.1 Buyer reserves the right, at any time, to request changes in the specifications, drawings, samples, or other description to which the Products or services are to conform, the quantity and method of shipment and packaging, or in the time or place of delivery.

    8.2 Supplier will advise Buyer in writing of any impact on cost, manufacturing, or delivery schedules within fifteen (15) days of Buyer's request. The Supplier will institute any such change when authorized by Buyer in writing, and Buyer will pay any agreed-upon increase in Supplier's cost attributable to the change.

    8.3 Unless otherwise stated on the face of the Purchase Order or in an attachment to the Purchase Order, Buyer may reschedule any delivery due date at Buyer's facility more than fourteen (14) days from the date of such rescheduling without incurring any rescheduling charges or other expense.

    8.4 Supplier will confirm, within two business (2) days, any changes or reschedules in writing, via mail, facsimile, or electronic data transmission.

    8.5 Supplier will not, without the prior written consent of Buyer, make any process, design, materials, or other changes to the Products. Supplier shall notify Buyer of any proposed changes to be made to the products via a Product or Process Change Notification (PCN). Buyer shall be notified a minimum of ninety (90) days before the scheduled shipment date of the product identified in the PCN. Shipment shall not occur unless the Buyer approves the PCN in writing. For product discontinuance, Supplier shall provide notice of product discontinuance to Buyer, allowing a minimum of six (6) months from the notice for Buyer to place final orders, and twelve (12) months from the notice for final shipments to be scheduled.

    8.6 The Purchase Order will not be deemed or construed to be modified, amended, rescinded, canceled, or waived in whole or in part, except in writing by Buyer.

  9. Buyer Property

    9.1 Any tools, equipment, programs, or materials furnished to Supplier by Buyer for the performance of the Purchase Order or tooling specifically paid for by Buyer as part of the Purchase Order, whether itemized or included in the price of any Products (hereinafter referred to as "Buyer's Property"), shall remain Buyer's property.

    9.2 Supplier agrees to maintain Buyer's Property and use it only to fill this and any future orders for Buyer.

    9.3 While in Supplier's custody and control, Buyer's Property will be insured by Supplier at Supplier's expense in an amount equal to its replacement cost. The Supplier will supply, at Buyer's request, evidence of the same.

    9.4 Buyer's Property will be subject to repossession and/or removal by Buyer at any time.

  10. Indemnification

    10.1 Supplier will indemnify, defend and hold Buyer and its employees, subsidiaries, affiliates, successors, and assigns harmless from and against all claims, damages, losses, costs, and expenses, including attorney's fees, arising from any third party claim to the extent based on (a) the Product, or any design, information, technology and/or processes related to the Product; (b) that the Product or any design, information, technology and/or processes related to the Product infringes or violates any patent, copyright or other intellectual property rights of a third party; (c) actual or alleged non-compliance of the Product or any component part thereof with applicable Law; or (d) design or product liability alleging that the Product has caused or will in the future cause damages of any kind (claims under sections (a), (b), (c), and/or (d) hereinafter defined as "Subject Claims"). Buyer will notify Supplier in writing of any Subject Claim made against Buyer. The Supplier will reimburse Buyer's expense for counsel if Supplier does not assume control of the defense of a Subject Claim. The Supplier will not make any settlement of a Subject Claim that affects Buyer's rights or interests without Buyer's prior written approval, which will not be unreasonably withheld.

    10.2 Supplier has no obligation for any Subject Claim to the extent the claim results from (1) Buyer's unauthorized modification of a Product, (ii) the combination, operation or use of a Product with any product, data, or apparatus not authorized, supplied by, or approved by Supplier, (iii) anything Buyer provides to incorporate into a Product, (iv) modification of a Product by Supplier in compliance with Buyer's unique design, tooling, specification, direction, instruction, (v) use by Supplier of any of Buyer's designated or consigned material, component or parts in the Product which directly cause the Subject Claim, (v) abuse, misuse, neglect, alteration, modification, tampering, improper repair or installation of the Products provided, or (vi) any negligent or willful act on the part of Buyer.

    10.3 If the use by Buyer or its affiliates, subsidiaries, assigns or customers of any Product or service furnished under the Purchase Order is enjoined due to a claim under subsection (b) of section 10.1 above ("Infringement Claim"), Supplier shall, at its own expense, procure for Buyer the right to continue using the Infringing Product. If Supplier is unable to do so, Supplier shall, at its own expense, either replace the Infringing Product with a non-infringing Product with the same fit, form, and functionality or modify the Infringing Product so that it becomes non-infringing but retains the same fit, form, and functionality as the Infringing Product. If Supplier is unable to replace or modify the Infringing Product, Supplier shall promptly refund in full all costs paid by Buyer for the Infringing Product, and Buyer may cancel any remaining portion of the Purchase Order. Exercise of these remedies shall not be exclusive of or with prejudice to any other remedies provided in law or equity available to Buyer.

  11. Property and Ownership for Tooling

    11.1 It is agreed that ownership and title of any tool or tools forming a part of Buyer's Property will pass to Buyer once the tool has received final approval by Buyer and Buyer has made payment in full.

    11.2 Each tool forming a part of Buyer's Property shall be clearly and permanently marked as Buyer's property as directed in the Purchase Order.

    11.3 The Supplier guarantees to protect Buyer's Property from access by any third party, unless otherwise previously approved by Buyer in writing.

    11.4 If the Supplier becomes insolvent or bankrupt, Buyer is entitled to enter Supplier's facility and remove Buyer's Property from Supplier's site.

  12. Cancellation

    12.1 Buyer may cancel the Purchase Order in whole or in part at any time in the manner specified in Section 12.8, upon the occurrence of Supplier's breach of the Purchase Order or a finding of default, or other certain events to include but not limited to: (i)Insolvency of Supplier, filing by Supplier of a voluntary petition in bankruptcy, filing of an involuntary petition to have Supplier declared bankrupt, provided the same is not vacated within thirty (30) days from the date of such filing or the execution by Supplier of any assignment for the benefit of creditors. (ii)Inability or failure of Supplier to complete and provide Buyer with Buyer's required specific declarations and certifications of legal compliance with specific Laws, such declarations to include, but not limited to, a SUPPLIER PRODUCT COMPLIANCE DECLARATION, referenced in Section 15.1.

    12.2 In the case of cancellation according to Section 12.1 above, Buyer shall incur no liability to Supplier after giving written notice of the cancellation.

    12.3 Buyer shall have the option to cancel this order, without cause, at its discretion. In such event, Buyer's liability shall not exceed the full price of Products already manufactured to meet scheduled delivery dates provided such delivery dates are no more than thirty (30) calendar days from the date of notification of such cancellation (hereinafter "Cancellation Related Payments").

    12.4 In the event of Buyer's cancellation, other than according to section 12.1, Buyer shall only be liable for Cancellation Related Payments if Supplier is otherwise unable to sell components or material to another source at a price equal to or exceeding the price Buyer agreed to pay within a reasonable time frame.

    12.5 Upon cancellation of services orders, Buyer shall only be liable for the price of the work that has been completed as of the date of cancellation notice.

    12.6 Under no circumstances shall Buyer be obligated to pay Cancellation Related Payments exceeding the value of the unpaid balance of the Purchase Order.

    12.7 If Buyer notifies Supplier of the cancellation of the Purchase Order, Supplier shall immediately stop all work on the Purchase Order. Buyer shall not be liable for Supplier's excess material ordered or manufactured that is attributable to Supplier's failure to immediately stop all work on the Purchase order upon Buyer's notification of cancellation.

    12.8 Buyer may cancel the Purchase Order orally or in writing. If Buyer provides oral notice of cancellation, Buyer will confirm such oral cancellation in writing within twenty-four (24) business hours of the oral notification.

    12.9 Upon notification of cancellation, Supplier shall provide a complete analysis which shall specify any anticipated Cancellation Related Payment requirement.

  13. Liability


  14. Confidentiality

    14.1 The parties agree to keep confidential from any third party all information obtained while performing obligations pursuant to the Purchase Order, including but not limited to specifications, drawings, pricing, usage/schedules, verbal understandings, or site observations. The parties will use at least the same care in protecting the other party's confidential information as the party would use in protecting its own confidential information.

    14.2 The parties further agree that such information shall be distributed internally on a need-to-know basis and shall not be used, except to perform obligations pursuant to the Purchase Order, without prior written permission of the other party.

    14.3 Supplier will not disclose the existence of the Purchase Order to any third party, including the Products or services covered by the Purchase Order, prices, pictures, descriptions, or samples without prior written approval from Buyer.

  15. Compliance with Applicable Laws

    15.1 Supplier represents and warrants to Buyer that the manufacture, delivery, or sale to Buyer of any Product under the Purchase Order complies with all applicable Laws. Upon request, Supplier shall furnish Buyer with specific declarations and certifications of legal compliance to include, but not limited to, a SUPPLIER PRODUCT COMPLIANCE DECLARATION.

    15.2 Supplier represents and warrants to Buyer that all Products will, at the time of sale or delivery to Buyer, comply with all Product safety, emissions, environmental and other Laws applicable thereto, including Information and Labeling Requirements, and any requirements included in the Product specifications or provided by Buyer and the Supplier's published specifications. The Supplier will obtain and maintain all certifications related to such requirements to the extent such certification is required by any applicable law or is reasonably requested by Buyer.

    15.3 Supplier agrees to furnish to Buyer copies of all regulatory reports and certifications upon demand. Further, if any resubmissions for re-certifications are required, the Supplier will provide timely notice to the Buyer and immediately provide the Buyer with copies and full details of the same.

  16. Toxic Substances

    16.1 Supplier acknowledges that it is the intent of Buyer to identify and disclose, where appropriate, including to Buyer's customers, all hazardous substances contained in or added to the Products. Supplier represents and warrants that none of the following hazardous substances are present in any Product:

    asbestos, azo colorants, and its compounds, ozone-depleting substances (CFCs, HCFCs, HBFCs, carbon tetrachloride, etc.), tributyltin oxide (TBTO), tributyltin (TBT), triphenyl tin (TPT), polychlorinated biphenyls (PCBs), polychlorinated terphenyls (PCTs), polychlorinated naphthalenes (more than 3 chlorine atoms), short-chain chlorinated paraffins (SCCPs), and nuclear or radioactive materials.

  17. Notices

    17.1 Any notice to Buyer will be directed to Buyer's authorized representative as designated on the Purchase Order.

    17.2 Any notice required pursuant to the Purchase Order will be in writing and will be deemed received as of the date of actual receipt of such written notice.

  18. Miscellaneous

    18.1 Supplier will not delegate any duties or assign any rights under the Purchase Order without prior written approval from Buyer. Any attempted delegation or assignment will be void.

    18.2 Failure by Buyer to insist upon strict compliance to the terms and conditions of the Purchase Order is not a waiver of the term or condition. The waiver of any term or condition of the Purchase Order must be in writing. No such waiver will be construed as a waiver of any other term or condition or as a waiver of any subsequent breach of the same term or condition.

    18.3 If any provisions herein are held to be invalid or unenforceable by a court of law for any reason, such provisions will, to the extent of such invalidity or unenforceability, be reformed or, if necessary, severed to the minimum extent necessary to render the remainder of the Purchase Order to be valid or enforceable, but without in any way affecting the remainder of such provision or any other provision contained herein, all of which will continue in full force and effect.

    18.4 The Purchase Order will be construed in accordance with and governed by the laws of the State of Washington, USA. In the event, there is any litigation to interpret the terms of the Purchase Order, to enforce the terms of the Purchase Order or alleging breach of the Purchase Order, the exclusive venue and jurisdiction of such litigation shall be in the Superior Court in and for Clark County, Washington, USA.

    18.5 Supplier represents, to the best of its knowledge and belief, that the Supplier and any of its Principals (as defined in 48 C.F.R. 52.209-5) are not presently debarred, suspended, proposed for debarment, or declared ineligible for the award of contracts by any Federal agency.

    18.6 Supplier represents that it has not within a three-year period preceding the Purchase order, been convicted of or had a civil judgment rendered against it for the commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, state or local) contract or subcontract; violation of Federal or state antitrust statutes relating to the submission of offers; or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, or receiving stolen property; and are not presently indicted for, or otherwise criminally or civilly charged by a governmental entity with, the commission of any of the offenses enumerated in this paragraph.

    18.7 With regard to tooling Purchase Orders, Supplier agrees to waive any lien that it may have on all property covered under said Purchase Order once payment in full has been received.