PNY Technologies Asia Pacific Limited Terms and Conditions
Seller (“Supplier”) agrees to sell to PNY Technologies Asia Pacific Limited PAYMENT TERMS –Supplier shall invoice Company upon shipment of(“Company” or “PNY”), and Company agrees to buy from Supplier, the Goods or in the calendar month following the provision of Goods orGoods or Services reflected on the face of this Purchase Order Services. Invoices shall be paid by Company within sixty (60) days of the(“Order”) on the following terms and conditions (“Terms and Conditions” date the invoice is received. Payment shall not constitute either an
acceptance of the Goods or Services, or any waiver of impairment of any
and/or “Agreement”):
of Company’s rights under this Agreement at Law or Equity or otherwise.
ENTIRE AGREEMENT –The terms and conditions set forth below Company may deduct any monies owed to Company by Supplier for this
together with those appearing on the face of this Purchase Order (“PO”) Order, any other Order, or any other transaction between Company andare the complete and exclusive agreement between Company and Supplier.
Supplier identified on the face of this Order. This PO takes precedence
over and supersedes any additional or different terms and conditions of DELIVERY – Upon receipt of this Order, Supplier, acknowledging that
Supplier, whether issued before or after the date of this PO. Company TIME IS OF THE ESSENCE, shall deliver all goods or services within therejects any contrary or additional terms or conditions. Any attempt by respective interval(s) shown on the face hereof. Unless otherwise
Supplier to alter, supplement, modify or amend these terms and specified in this Order, shipments of Goods shall be F.O.B. to Company
conditions will be considered a material alternation of this Agreement facility. Supplier bears all costs of packaging, loading, shipment and all
and, therefore, shall be null and void. No modification of this Order shall risk of loss until delivery is made in accordance with this Order. In the
be binding on either party unless in a single writing and signed by each event Supplier shall fail to deliver goods or services within the interval(s)party.
This PO is accepted by Supplier’s performance or partial provided on the face hereof, then in addition to all other rights andperformance, or in any other manner indicating acceptance that is remedies at law or equity or otherwise available to Company and without
any liability or obligation of Company, Company shall have the right toconsistent with the provisions of this PO.
cancel this Order, buy the goods and services elsewhere and hold
WHO IS BOUND: Supplier is bound by this Agreement. Supplier is not Supplier responsible for the cost of cover, or establish a new delivery
relieved of Supplier’s obligations to comply with Company’s requirements date for Supplier. Cancellations pursuant to this paragraph shall be at nounder this Agreement and remains bound by this Agreement even if charge to Company. Supplier shall be responsible for the cost of any
Supplier purports to assign its responsibilities and obligations under this required expedited airfreight related to late or rescheduled delivery due
Agreement to a third party. In addition to Supplier, anyone who to Supplier’s action.
succeeds to Supplier’s rights and responsibilities, including but notlimited to Supplier’s agents, attorneys, successors, predecessors, NOTICE OF DELAYS - Whenever Supplier has knowledge of an actual
assigns, heirs and/or insurers, referred to collectively herein as “Supplier” or potential delay to the timely performance of this Order, Supplier shalland/or “Seller,” is bound by this Agreement. This Agreement is for the immediately notify Company in writing of all relevant information with
benefit of Company and its agents, attorneys, successors, predecessors, respect to such delay. Such notice is for informational purposes only
assigns, heirs and/or insurers, referred to collectively herein as and shall not relieve Supplier of Supplier’s obligations to comply with
Company’s requirements under this Order. Company may delay delivery“Company” and/or “PNY.”
and/or acceptance occasioned by causes beyond its control.

ACCEPTANCE - No order is valid or binding upon Company unlessgiven on this Purchase Order form and properly signed by Supplier on SHIPPING – Supplier shall: (1) ship all Goods F.O.B. to Company
the face hereof. If Supplier fails to deliver the acceptance copy signed designated destination unless otherwise specified in this Order; (2) shipby Supplier and delivers the goods, Company is free to accept or reject the Material covered by this Order complete unless instructed otherwise
Goods delivered. Supplier’s commencement of work on the goods or in writing; (3) ship according to routing instructions given by Company;
services covered under this Order or any conduct by Supplier that (4) enclose a packing memorandum with each shipment and, when more
recognizes the existence of a contract pertaining to the subject matter than one package is shipped, identify the package containing thehereof shall constitute an acceptance by Supplier to the terms and memorandum; and (5) place the Order number on all subordinate
packages and documents. Supplier shall preserve, package, handle andconditions contained herein.
pack the Goods so as to protect the Goods from loss or damage, in
PRICE – Supplier shall sell to Company the Goods or Services shown on conformance with good commercial practice, Company specifications,the face of this Order at the prices specified. Pricing for the term of this government regulations, and other applicable requirements. Shipping
Agreement shall not exceed the prices listed in this Order. Supplier and routing instructions may be furnished or altered by Company at any
warrants and represents that its prices and other terms are not in excess time. If Supplier does not comply with the terms of this section, Supplierof the lowest prices and terms with other similarly situated customers for authorizes Company to deduct from any invoice of Supplier (or to charge
similar quantities of Goods or Services of like kind and quality. Company back to Supplier), any increased costs incurred by Company as a result
may request a reduction of prices for Material under this Agreement by of Supplier's noncompliance. Supplier bears all costs of packaging,loading, shipment and all risk of loss until delivery is made in accordance
giving written or verbal notice to Supplier.
with this Order.
TAXES – Company shall reimburse Supplier only for the following tax
payments with respect to this Order unless Company advises Supplier CHANGE NOTIFICATION – Supplier agrees that it shall not discontinuethat an exemption applies: state and local sales and use taxes, as Goods sold to Company under this Order for a period of at least one (1)applicable. Company is responsible for no other taxes, including without year from the date of this Order, unless it first shall give Company atlimitation but not limited to, taxes on Supplier’s income, assets, or least ninety (90) days prior written notice and an opportunity to purchasebusiness. Taxes payable by Company shall be billed as separate items additional items of the Goods proposed to be discontinued. Upon noticeon Supplier's invoices and shall not be included in Supplier's prices. of discontinued Goods, Company may cancel this order without liability
Company reserves the right to contest any tax charge listed on to Company, and Supplier agrees to accept returns of discontinued
Supplier’s invoices. Company shall have the right to have Supplier Goods and to issue Company a full credit at the price which Company
contest any such taxes that Company deems improperly levied at originally paid or contracted to pay for such Goods. Supplier shall not,Company's expense and subject to Company's direction and control.
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without prior written consent from Company, make any process or design greater period as may be specified elsewhere in this Order. If Goods orchanges affecting the Goods. Notwithstanding any other provisions of Services furnished contain manufacturers' warranties, Supplier hereby
this Agreement, if Company, in its sole discretion, does not agree to the assigns such warranties to Company and its customers. All warranties
change proposed by Supplier, then in addition to all other rights and shall survive inspection, acceptance and payment. Goods or Services
remedies at law or equity or otherwise, and without any cost to or liability not meeting the warranties will be, at Company's option, returned for orto Company, Company shall have the right to terminate this Agreement subject to refund, repaired, replaced or re-performed by Supplier at noand to terminate any or all Orders for Goods affected by such change cost to Company or its customers and with transportation costs and risk
without further obligation.
of loss and damage in transit borne by Supplier. Repaired andreplacement Goods and/or re-performed Services shall be warranted as
TERMINATION – Company may at any time cancel this Order, in whole set forth above in this Section.
or in part, by written notice to Supplier by mail and/or by electronic mail(“email”). Without charge, Company may change or cancel any portion of NON-COMPLYING GOODS AND SERVICES - If any Goods arethis Order if Company gives Supplier notice (i) for custom Goods or defective or otherwise not in conformity with the requirements of thisServices at least 30 calendar days prior to Delivery Date, and (ii) for Order (“Noncomplying Goods”), Company at its option, may: (1) return
standard Goods or Services at least 14 calendar days prior to Delivery the Noncomplying Goods for repair, replacement or reworking at
Date. In such case, Company’s liability shall be limited to payment for Supplier’s sole cost and expense, or (2) take a credit against theGoods accepted by Company or for Services performed up through purchase price of the Noncomplying Goods.
If any Services are
Company’s notice of termination.
defective, Supplier agrees to re-perform the Services or to perform all
Services necessary so as to deliver the Services to meet the
If Supplier breaches any provision of this Order, Company may terminate requirements of this Order, at no additional cost or expense to Company.
the whole or any part of this Order unless Supplier cures the breach All Noncomplying Goods, over shipments, and early shipments returned
within ten (10) work days after the date of Company’s notice of breach. by Company to Supplier, and all replacement or reworked Goods
Company’s notice of breach may be made by certified mail and/or by shipped by Seller to Company to replace Noncomplying Goods, shall beelectronic mail and/or by facsimile to Supplier.
at Suppliers’ risk and expense including transportation charges.
WARRANTY – Supplier warrants to Company and its customers that LICENSE GRANT – If Goods or Services include Software, firmware orMaterial and/or Services furnished will: (1) be new, merchantable, free documentation, Supplier grants to Company a perpetual, irrevocable,from defects in design, material and workmanship and will conform to non-exclusive, fully paid-up and royalty-free worldwide License to sell,and perform in accordance with the specifications, drawings, samples use, copy, produce, display and distribute such products either as
and other requirements referred to in this Order or provided by Supplier delivered to Company or as integrated in a Company or other products.
prior to the date of this Order; (2) be performed in a first class, Such license will include the right of Company to sublicense third parties
workmanlike manner; (3) be free of all liens, encumbrances and other to achieve the foregoing. Supplier further grants to Company a royaltyclaims; (4) not infringe or misappropriate any patent, trademark, free, non-exclusive license to use, exhibit, excerpt, reproduce, publish,
copyright or other intellectual property right of a third party; and (5) be perform and transmit via the Internet and otherwise use all copyrights,
new and shall not contain any used or reconditioned parts or materials. trade names, trademarks and service marks associated with the Goods
Supplier further warrants and represents that it has the right to sell the or Services in order to promote and sell them or the results or products
Goods and/or Services that are required to Company, and if applicable, thereof.
to license any intellectual property rights in the Goods or Services thatare required to allow Company to resell and otherwise to make full use of INTELLECTUAL PROPERTY - Supplier agrees to defend, indemnify,
the Goods or Services free and clear of all adverse claims.
and hold harmless Company and its affiliates, subsidiaries, assigns,
officers, employees, subcontractors, and customers from and against all
Even if Supplier is unable to expressly warrant that the Goods that threatened and actual claims, losses, demands, damages, liabilities,
Supplier is providing to Company pursuant to these Terms and settlements, fines, penalties, costs, expenses (including the reasonable
Conditions are authorized for use as critical components in medical, life fees of attorneys and other professionals), obligations, causes of action,saving, and/or support devices or systems, safety devices or systems, suits, or injuries, of any kind or nature, arising or resulting from (i)and/or in any other devices, applications or systems in which it is assertion that the Goods or Services, or any part thereof, infringe orreasonably foreseeable that failure of the Goods could lead to death, misappropriate the intellectual property rights of any third party, or (ii) a
bodily injury or catastrophic property damage, Supplier nevertheless breach of any term, warranty or representation of Seller in this Order. If
agrees to defend, indemnify and hold Company harmless to any and all the use of the Goods or the results of any Services by Company or any
third parties for any and all alleged losses, damages, liabilities, costs Company customer is enjoined or threatened to be enjoined, Seller, at its
and/or expenses incurred in or arising out of or related to use of the sole cost and expense shall (i) replace the Goods with a noninfringing
subject Goods pursuant to the Limitation of Liability, Defense and product without loss of functionality, (ii) modify the Goods to be
Indemnification provision appearing below, including but not limited to noninfringing, or (iii) if unable to replace or modify the Infringing Product,
any and all alleged losses, damages, liabilities, costs and/or expenses refund in full all costs paid by Company for the Infringing Product and all
incurred in or arising out of or related to use, whether authorized or not, resulting costs of cover.
of the subject Goods as critical components in medical, life saving,
and/or support devices or systems, safety devices or systems, and/or in IDENTIFICATION – Supplier shall not, without Company’s prior written
any other devices, applications or systems, military or civilian.
consent, engage in publicity related to this Order, or make public use orreference to any Identification in any circumstances related to this Order.
These warranties extend to the future performance of the Goods or “Identification” means any trade name, trademark, service mark, insignia,
Services and shall continue for the longer of (a) the warranty period symbol, logo, or any other designation or drawing or simulation of
applicable to Company's sales to its customers of the Goods or Services Company.
Supplier shall remove or obliterate any Company
or of products which incorporate the Goods or Services, (b) one year identification, trademarks, trade names, insignia, part numbers, symbols,
after the Goods or Services are accepted by Company or (c) such or decorative designs, prior to any use or disposition of any Work and/or
AP v.1PNY Technologies Asia Pacific Limited Terms and Conditions
Services rejected, returned or not purchased by Company. Supplier EXPORT CONTROL – The parties acknowledge that any products,
agrees to indemnify, defend (at Company's request) and hold harmless software, and technical information (including, but not limited to, services
Company, its customers and each of their officers, directors and and training) provided hereunder are subject to R.O.C. export laws andemployees from and against any losses, damages, claims, demands, regulations and any use or transfer of such products, software, andsuits, liabilities, fines, penalties and expenses (including reasonable technical information must be authorized under those laws andattorney's fees) that arise out of or result from any failure to do so. If regulations.
requested by Company, Supplier shall affix Company logos andtrademarks to the Goods or their packaging, and shall use Company CHOICE OF LAW - This Agreement shall be govern by and construed incopyrighted packaging solely for the purpose of selling Goods to accordance with the laws of the Republic of China without applying toCompany and for no other purpose whatsoever. No license in or to any the conflict-of-law rules.
Company trademarks or trade names is granted by this Order or any
other agreement.
LIMITATION OF LIABILITY, DEFENSE AND INDEMNIFICATION –COMPANY SHALL IN NO EVENT BE LIABLE TO SUPPLIER FORCONFIDENTIAL INFORMATION - In the course of the relationship INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR
between Company and Supplier, Supplier may learn Company CONSEQUENTIAL DAMAGES, AND/OR ATTORNEY FEES AND/OR
Confidential Information. “Confidential Information” means the trade FEES AND COSTS OF ANY NATURE, INCLUDING BUT NOT LIMITED
secret, proprietary, and confidential knowledge and business information TO THOSE ARISING OUT OF AN ALLEGED BREACH OF CONTRACT,of Company which includes, but is not limited to, all information BREACH OF LICENSING AGREEMENT, TORT, OR ANY OTHER
designated by Company as confidential, all information or data ALLEGED CLAIM, EVEN IF COMPANY HAS BEEN ADVISED OF THE
concerning Company’s products (including the discovery, invention, POSSIBILITY OF SUCH CLAIMS AND/OR DAMAGES. NO ACTION
research, improvement, development, manufacture or sale thereof), OR PROCEEDING AGAINST COMPANY MAY BE COMMENCED
matters of a technical nature (such as ideas, concepts, designs, MORE THAN ONE YEAR AFTER THE ALLEGED CAUSE OF ACTION
drawings, specifications, materials, diagrams, flow charts, research, HAS ACCRUED. FURTHERMORE, COMPANY SHALL IN NO EVENT
development, know-how, computer programs and routines; and matters BE LIABLE TO ANY THIRD PARTY FOR INDIRECT, INCIDENTAL,
of a business nature (such as the identity of clients and prospective SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES
clients and suppliers, marketing techniques and materials, marketing and AND/OR ATTORNEYS’ FEES OF ANY NATURE INCLUDING, BUT
development plans, costs and forecasts, profits, margins, pricing plans, NOT LIMITED TO, THOSE ARISING OUT OF AN ALLEGED LOSS OF
financial, investor and venture capital and financing information, plans for PROFITS, DATA, REVENUE, PRODUCTION OR USE, BUSINESS
further development, and any other information of a similar nature not INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS AND
available to the public). Supplier agrees that it shall not, without the prior SERVICES, AND/OR PERSONAL INJURY AND/OR DAMAGE TO
written approval of Company, directly or indirectly (a) reveal, report, PROPERTY, WHETHER BASED ON CONTRACT OR TORT,
publish, disclose or transfer any Confidential Information to any person, INCLUDING NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER
or entity, or (b) use any Confidential Information for any purpose or for LEGAL THEORY, EVEN IF COMPANY HAS BEEN ADVISED OF THE
the benefit of any person, or entity, except for the benefit of Company. POSSIBILITY OF SUCH DAMAGES.
Supplier agrees that all Confidential Information is and shall remain the
exclusive property of the Company. Supplier shall not retain copies of SUPPLIER AGREES TO DEFEND, INDEMNIFY AND HOLD COMPANY
Confidential Information and agrees to return all copies thereof upon HARMLESS FROM AND AGAINST ANY AND ALL THREATENED OR
request or upon termination or expiration of this agreement or any ACTUAL CLAIMS, LOSSES, DEMANDS, DAMAGES, LIABILITIES,
relationship with Company. Seller agrees that each employee, agent or SETTLEMENTS, FINES, PENALTIES, COSTS AND EXPENSES,
subcontractor who performs work under this Agreement has been INCLUDING THE REASONABLE FEES OF ATTORNEYS AND OTHER
informed of the obligations contained herein and has agreed to be bound PROFESSIONALS, OBLIGATIONS, CAUSES OF ACTION, SUITS, OR
by them.
INJURIES OF ANY KIND OR NATURE, (COLLECTIVELY“THREATENED OR ACTUAL CLAIMS”), ARISING OUT OF ORCOMPLIANCE WITH LAWS – Supplier shall comply at its own expense RELATED TO THE USE OF SUPPLIER’S GOODS AND/OR
with all applicable laws, ordinances, regulations, codes, including the SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OF AN
identification and procurement of required permits, certificates, licenses, INTEGRATED PRODUCT CONTAINING SUPPLIER’S GOODS.
insurance, approvals and inspections in performance under this SUPPLIER IS OBLIGATED TO DEFEND, INDEMNIFY AND HOLD
Agreement. Supplier agrees to furnish to Company any information COMPANY HARMLESS REGARDLESS OF WHETHER THE ACTUAL
required to enable Company to comply with such laws, rules andregulations in its use of the Goods and Services.
REMEDIES - The rights and remedies granted to Company pursuant tothis PO are in addition to, and shall not limit or affect, any other rights orremedies available at law or in equity or otherwise. Upon Company’s
request, Supplier shall provide Company with a certification stating thecountry of origin for Goods, sufficient to satisfy the requirements of (i) the
customer’s authorities of the country of receipt, and (ii) any applicable
export licensing regulations, including those of the United States.
Supplier shall mark every Good (or the Good’s container if there is noroom on the good itself) with the country of origin. Supplier shall, in
marking the Goods, comply with the requirements of the customs
authorities of the country of receipt.

AP v.1PNY Technologies Asia Pacific Limited Terms and Conditions
OR THREATENED CLAIMS HAVE ANY MERIT AND/OR WHETHER CONSTRUCTION, INTERPRETATION AND SEVERABILITY –If any
THE ACTUAL OR THREATENED CLAIMS ARE PREDICATED UPON term, clause or provision of this Agreement shall be judged to be invalid,
AN ALLEGED ACT OR OMISSION OF COMPANY. SUPPLIER IS the validity of any other term, clause or provision shall not be thereby
OBLIGATED TO DEFEND, INDEMNIFY AND HOLD COMPANY affected, and such invalid term, clause or provision shall be modified in a
HARMLESS REGARDLESS OF WHETHER THE ACTUAL OR manner that would make it valid and would accomplish the intention of
THREATENED CLAIMS ARISE OUT OF UNAUTHORIZED USE OF the Parties as much as possible.
THE GOODS AND/OR SERVICES AND/OR WHETHER THE ACTUAL
OR THREATENED CLAIMS CONCERN THE USE OF THE GOODS The individual signing this Order has the authority to bind Supplier.
AND/OR SERVICES AS CRITICAL COMPONENTS IN MEDICAL, LIFESAVING, AND/OR SUPPORT DEVICES OR SYSTEMS, SAFETY
DEVICES OR SYSTEMS, AND/OR IN ANY OTHER DEVICES, Supplier Name and Address (Printed)
APPLICATIONS OR SYSTEMS, MILITARY OR CIVILIAN. TO THE
EXTENT THAT THIS PROVISION IS INCONSISTENT WITH LOCAL
LAW, THIS PROVISION SHALL BE DEEMED MODIFIED TO BECONSISTENT WITH SUCH LOCAL LAW, PROVIDING THE (Signature of Individual Signing this Order on behalf of Supplier)
BROADEST PROTECTIONS AND RIGHTS POSSIBLE TO COMPANY
THAT ARE PERMISSIBLE UNDER THE APPLICABLE LOCAL LAW Name:AND REQUIRING SUPPLIER TO DEFEND, INDEMNIFY AND HOLD
COMPANY HARMLESS TO THE GREATEST EXTENT PERMISSIBLE Title:
UNDER SUCH LOCAL LAW.
Date:
NO EXCLUSIVITY – This Order reflects a non-exclusive relationship,
and Company is free to order any Goods or Services from any otherperson or entity. This Order does not imply the existence of acontractual relationship beyond its express terms. Nothing in this Order
prevents Company from independently developing, acquiring from otherthird parties, distributing or marketing other Goods or Services which
may perform the same or similar functions as the Goods or Services
provided under this Order.
FORCE MAJEURE – Neither party shall be held responsible for any
delay or failure in performance of any part of this Order to the extent
such delay or failure is caused by fire, flood, explosion, strike, civil,
governmental or military authority, act of God, or other similar causes
beyond its control and without the fault or negligence of the delayed or
nonperforming party or its subcontractors. Supplier's liability for loss ordamage to Company's Goods in Supplier's possession or control shallnot be modified by this section. When Supplier’s delay or
nonperformance continues for a period of at least ten (10) days,
Company may terminate, at no charge, this Order.
SUPPLIER’S INFORMATION - Supplier shall not provide under, or haveprovided in contemplation of, this Order any technical, business or otherintangible information, however conveyed, or any document, print, tape,disc, semiconductor memory or other information-conveying tangible
article, and unless Supplier has the right to do so and Supplier shall notview any of the foregoing as confidential or proprietary. If Supplier mustfurnish any such information to Company with restrictions, it shall only befurnished after negotiation and execution on behalf of Company of aseparate written agreement specifically identifying the documents to be
furnished and setting forth Company’s rights and obligations with respect
thereto.

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