**Exhibit 10.10**

 
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**SUPPLYAGREEMENT**

On the date ofsignature this Supply Agreement has been entered into by

XTENT Inc.125 Constitution DriveMenlo Park, CA 94025USAhereinafter referred to as “**XTENT**”

and by

Fortimedix B.V.Horselstraat 16361 HC NuthThe Netherlandshereinafter referred to as “**Fortimedix**”

**1.****              Purpose**

As XTENT is a manufacturer of medical devices andwishes to purchase certain products manufactured by Fortimedix pursuant to XTENT’sdesigns and specifications (“Products”) for use in or with XTENT’s devices,this Agreement describes all contractual aspects of the specification,ordering, manufacturing, pricing and payment of the Products as the partiesdeem necessary in association with Fortimedix’s supply of Products to XTENT.

**2.****              Products**

The Products supplied by Fortimedix to XTENT arelisted and specified in Appendix 1, which forms an integral part of this Agreement.

**3.****              Validity**

This Agreement is valid for an initial period of three(3) years from the date of March 18, 2007 (Validity Period), subject to Section5 hereof. The Agreement can be cancelled with effect at the end of the ValidityPeriod by either party through written notice at least six (6) months prior tothe end of the Validity Period. If no such notice has been given by eitherparty, the Validity Period will be automatically extended by one year. TheValidity Period will be automatically extended for an additional one-yearperiod at the end of such one year extension and each year thereafter as longas neither party gives the aforementioned six-month cancellation notice.

XTENT may terminate thisAgreement by written notice prior to the end of the Validity Period ifFortimedix fails to deliver, pursuant to XTENT’s specifications (as set forthin Section 14) and delivery schedules, at least 90% of XTENT’s ordered quantityof Products specified in any three orders (consecutive or not consecutive)within any six-month period, Fortimedix fails to cure such failure within fourteen(14) days of receiving written notice from XTENT, and such failure is notattributable to any action or inaction of XTENT in violation of this Agreement.

Both parties are entitledto terminate this Agreement by written notice prior to the end of the ValidityPeriod with immediate effect:

a)              Inthe event of a material default on the part of the other party, provided that noticeof default is given in writing, including specific charges of default andrequirements to cure, and the party receiving the notice of default fails tocure within ninety (90) days from its receipt of such notice.

b)             Inthe event of bankruptcy or liquidation on the part of the other party.

c)              In the event ofdissolution on the part of the other party.

**4.****              Quantities**

Fortimedix will build production capacity for a monthlyvolume of [*] units of the Products by the end of 2007 and will keep thiscapacity available for supply to XTENT. No later than January

Fortimedix initials ____

 

XTENT initials ____

Certain Confidential Information contained in thisdocument, marked by “[*],” has been omitted and filed separately with thesecurities and exchange commission pursuant to rule 406 of the securities actof 1933, as amended.

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31, 2008, the parties shall agree upon any furtherproduction capacity to be added by Fortimedix by the end of 2008, which shallbe no less than that capacity needed to deliver any Minimum Quantity agreed tofor the year 2009 as set forth below.

**5.****              Minimum Orders**

XTENT shall order from Fortimedix a minimum of [*]units in 2007, [*] units in 2008 and a minimum quantity of units in 2009 to beagreed upon as set forth below (“Minimum Quantity”), unless this Agreement isterminated prior to the relevant year. On or after December 1, 2007, theparties shall negotiate in good faith to agree upon the Minimum Quantity for2009. The parties presently intend to agree upon a Minimum Quantity for 2009which is no less than that for 2008, provided the parties are satisfied withthe relationship and XTENT remains on schedule to receive regulatory approvalsin the US and Europe; however, notwithstanding the foregoing, the partiesunderstand that nothing in this Agreement binds either party to any MinimumQuantity for 2009 unless agreed to in writing by both parties on or afterDecember 1, 2007. If the parties cannot reach agreement for such MinimumQuantity by January 31, 2008, Fortimedix may (i) give written notice of itsintent to terminate the Agreement at the end of 2008; or (ii) continue with theAgreement with no Minimum Quantity requirement for 2009.

In the event that XTENT fails to receive approval foran Interventional Device Exemption (IDE) by the US Food and Drug Administrationby December 31, 2007, the Minimum Quantity for 2008 shall not apply until suchtime as XTENT receives IDE approval, and the Minimum Quantity for 2008 willthen apply to the year beginning on the date of such approval, and any MinimumQuantity agreed-to for 2009 will apply to the year beginning one year and oneday from such approval.  The Validity Periodset forth in Section 3 shall be extended as necessary to carry out theforegoing.

No later than January 31st of each of 2008, 2009 and 2010,Fortimedix will supply XTENT with an accounting of quantities of Productsordered and delivered during the preceding calendar year. If both the quantity orderedby XTENT and the quantity delivered by Fortimedix are lower than the MinimumQuantity for the applicable year, Fortimedix shall notify XTENT in writing ofthe difference. Within thirty (30) days of receiving such notice, XTENT shallissue a purchase order for the difference between the quantity ordered for thecalendar year and the applicable Minimum Quantity. Upon delivery of the quantityordered, Fortimedix will invoice XTENT for such quantity, and payment of the invoicedamount would become due within 30 days from the date of invoicing.

After the first three years of the Validity Period, ifthe Validity Period is extended, no minimum order will be required.

**6.****              CollaborativePlanning**

XTENT will provide Fortimedix with a three-monthrolling forecast of Product volumes to be delivered. The forecast will beissued before the end of the first week of each month and the volumes indicatedfor that month are to be considered as a firm order, whereas the quantitiesindicated for the second month are a forecast within a band of 10% more or lessand the quantities indicated for the third month are a forecast within a bandof 20% more or less. XTENT will inform Fortimedix promptly about any forecastchanges and Fortimedix will inform XTENT promptly about any possible capacityconstraints.

**7.****              Specifications,Protocols, and Processes and Change of Specifications, Protocols, and Processes**

Fortimedix shallmanufacture Products in accordance with the Specifications set forth inAppendix 1. If Fortimedix finds it necessary or desirable to change anyspecifications, protocols, or processes, Fortimedix shall give XTENT notice andnot implement any such change without XTENT’s consent. Such consent, as well asthe scope of the changes, shall be documented and obtained prior toimplementation of identified changes. If XTENT similarly finds it necessary ordesirable to change any Specification or protocols, then it will so notifyFortimedix and Fortimedix will use reasonable efforts to effect such change. Ifany change requested by XTENT will increase or decrease Fortimedix’s cost ofthe Product, before effectuating such change, XTENT and Fortimedix shall agreeto change the price on Appendix 2 hereto pursuant to good faith

CertainConfidential Information contained in this document, marked by “[*],” has beenomitted and filed separately with the securities and exchange commissionpursuant to rule 406 of the securities act of 1933, as amended.

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negotiations it being theintent hereof that the revised price change be proportionate to the change inFortimedix’s costs associated with the change requested in the Specification.To facilitate effectuation of this section, Fortimedix will provide to XTENTsuch information as is necessary for XTENT to evaluate and confirm all cost changes.

**8.****              Exclusivity**

Fortimedix shall notdevelop, manufacture, sell, advise or supply any other form of assistanceconcerning products in the XTENT Field as hereinafter defined for third partiesother than those agreed upon by XTENT. The “XTENT Field” shall mean [*].

**9.****              Manufacturing LeadTimes**

Fortimedix guarantees the ex-works delivery of Productsin 21 days from the date of receipt of XTENT’s purchase order. Fortimedix willmake all reasonable efforts to facilitate less than standard lead time orders andwill promptly confirm XTENT all delivery dates of less than the standard leadtime.

Fortimedix’s obligations hereunder, shall be excusedby strikes, riots, war, invasion, acts of God, fire, explosion, floods, delayof common carrier, acts of government agencies or instrumentalities, or judicialaction to the extent such government or judicial action is not resulting fromFortimedix’s negligence, wilful wrongdoing or other action in breach of thisAgreement.

**10.****       Traceability, Audits, andQuality System**

Fortimedix will provide XTENT with traceabilityrecords of the Products in accordance with XTENT’s quality procedures. XTENT orany regulatory body associated with approval of XTENT’s products shall have theright to audit Fortimedix facility with thirty (30) days advance writtennotice. Fortimedix agrees to respond to any audit observations within thirty(30) days after written notification of the audit observation.

Fortimedix agrees to maintain a Quality Systemsufficient to manufacture Products meeting XTENT specifications as well as anyapplicable regulatory requirements. Fortimedix agrees to notify XTENT inwriting of planned significant changes to the Quality System prior toimplementation of the changes.

**11.****       Packing**

All Products shall besuitable packed and shipped to XTENT by Fortimedix in the manner specified by XTENT.If packing is not specified, the Product shall be packed in a commerciallyreasonable manner.

**12.****       DeliveryTerms**

Fortimedix shall deliverthe Products on an Ex-Works basis (Incoterms 2000). XTENT will instructFortimedix which carriers to use for XTENT’s risk and expense. XTENT isresponsible for the insurance of the Product as of the moment that they havebeen handed over to the first carrier on Fortimedix’s premises.

**13.****       Priceand Payment Terms**

All orders for Productshereunder shall be subject to XTENT’s standard Purchase Order Terms andConditions, which are attached hereto as Appendix 3 and shall form part of thisAgreement.  In the event of a conflictbetween the terms of the Purchase Order Terms and Conditions and the provisionsof this Agreement, the provisions of this Agreement shall prevail. Prices ofthe Product are specified in Appendix 2. These prices are valid throughout theduration of this Supply Agreement. Fortimedix will assume full responsibilityfor offsetting the effects of possible cost inflation. Fortimedix agrees thatthe price charged for the Products shall be [*].

CertainConfidential Information contained in this document, marked by “[*],” has beenomitted and filed separately with the securities and exchange commissionpursuant to rule 406 of the securities act of 1933, as amended.

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[*]. All credit notes areimmediately deductible from any outstanding payments. Fortimedix shall invoice XTENTonly upon shipment Ex-Works Fortimedix’s facility.

If XTENT is in delay ofpayment for more than 30 days, Fortimedix is allowed to charge an interest feeequal to the 3-months European Interbank Offered Rate (EURIBOR) plus2,0%-points. If XTENT is in delay of payment for more than 60 days or ifFortimedix in its sole discretion finds reasons to believe that XTENT’s abilityto pay is severely impaired, it may suspend deliveries until late payment hasbeen remedied or the ability to pay has been demonstrated, without suchsuspension of delivery being a breach of contract.

**14.****       Rightof Return**

Products found not to bein accordance with the quality and control requirements, as set forth in theSpecifications as per Appendix 1 will be returned to Fortimedix with a noticefrom XTENT identifying and specifying, in reasonable detail, the Productsrejected and the reasons for rejection. Unless Fortimedix’s inspections providefirm evidence that the Products were in accordance with the quality and controlrequirement, XTENT will be credited for the full payments related to thosenon-compliant Products. In the event of disagreement between the parties as towhether any delivered Products meet XTENT’s specifications, each party shalldesignate an independent third party expert to inspect such Products and mutuallydecide the issue. If such experts are unable to reach agreement, the mattershall be referred to arbitration pursuant to Section 23.

**15.****       Warranties**

a)              Fortimedixrepresents and warrants that all of the Products delivered to XTENT under thisAgreement will comply with the Specifications as per Appendix 1 and that the Productswill be free from any defects in product and workmanship. This is the sole andexclusive warranty given by Fortimedix with respect to the Product. Fortimedixmakes no other warranty and hereby expressly disclaims all other representationor warranties of any kind, express or implied. No implied warranty ofmerchantability, no implied warranty of fitness for any particular purpose, andno implied warranty arising by usage of trade, course of dealing or course ofperformance is made by Fortimedix.

b)             XTENTshall not be liable for, and Fortimedix assumes responsibility for and agreesto indemnify and hold harmless XTENT from, all personal injury and propertydamages that occur during Fortimedix’s products formulation, fabrication, ormanufacturing process or for claims based on violations of federal, state orlocal laws or regulations applicable to employee or environmental protection,in connection with such manufacturing process (e.g., a claim based onFortimedix’s violations of environmental standards or standards dealing withproviding a safe place to work or the maintenance of hazardous products).

c)              Fortimedixrepresents and warrants to XTENT that it has not entered into any agreement,which conflicts with the terms of this Agreement, and that it will not do soduring the duration of this Agreement.

d)             XTENT shallindemnify and hold harmless Fortimedix, and agrees to defend any action orclaim against XTENT for patent infringement or infringement of any otherintellectual property right as a result of the use of the Product except to theextent such action or claim arises out of the alleged infringement byFortimedix of patents or other intellectual property rights related tomanufacturing processes or equipment used by Fortimedix for the manufacture of Productsfor XTENT.

e)              XTENTagrees to indemnify and hold harmless Fortimedix, its officers, agents,employees and authorized representatives from and against any and all costs ordamages arising out of or related to any claim or lawsuit for personal injuryor death to any person as a result of a defect 

CertainConfidential Information contained in this document, marked by “[*],” has beenomitted and filed separately with the securities and exchange commissionpursuant to rule 406 of the securities act of 1933, as amended.

 

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or malfunction ofany XTENT medical device in which Fortimedix’s Product is used, as long as theFortimedix Product was manufactured within established Specifications and wasfree from defects in product and workmanship when received by XTENT. XTENT willdefend, manage and assume all costs of any lawsuit or claim related to thisindemnification. Fortimedix will notify XTENT promptly after Fortimedix becomesaware of any claim by any third party with respect to which Fortimedix would beentitled to indemnification hereunder. Fortimedix will not settle or offer tosettle any such claim or lawsuit without XTENT’s prior written approval.

f)                Inno event shall either party hereto be liable to the other for anyconsequential, indirect, incidental, exemplary or special damages of any kind,including loss of profit and/or revenue.

**16.****       ProprietaryRights**

a)              Nolicense under any intellectual property of Fortimedix, including patents andtrade secrets, is granted herein.

b)             XTENTis the owner of all intellectual property rights with regard to the Products,including patents and trade secrets. No license under any intellectual propertyof XTENT, including patents and trade secrets, is granted herein.

c)              Anyinventions by a party hereto (First Party) which are derived from the ConfidentialInformation of the other party (Second Party) shall be owned by the Second Party,and the First Party agrees to assign such invention to the Second Party,execute any documents, and perform such other acts as may be necessary oruseful to perfect the Second Party’s ownership thereof.  Confidential Information shall mean allinformation relating to the technology, products, services, personnel,customers, or business of the Second Party which is received directly orindirectly by the First Party unless such information (i) is in the publicdomain not due to any act of the First Party; (ii) was received from a thirdparty not under any obligation to the Second Party to maintain such informationin confidence; or (iii) is developed independently by employees or agents ofthe First Party who do not have access to or knowledge of the ConfidentialInformation of the Second Party.

d)             Anyinventions by Fortimedix in the XTENT Field (as defined in Section 8) duringthe term of this Agreement shall be owned by XTENT, and Fortimedix agrees toassign any such inventions to XTENT, execute any documents, and perform suchother acts as may be necessary or useful to perfect XTENT’s ownershipthereof.  For purposes of clarity, the XTENTField shall not include stent cutting or polishing methods, processes, ormachinery.

**17.****       Replacementof Prior Agreements**

This Agreement containsthe entire understanding of the parties with respect to the supply of the Productsduring the term of this Agreement and voids and supersedes all priornegotiations, contracts, agreements, undertakings and understandings, whetherwritten or oral, if any, between the parties. This Agreement may from time totime be changed but only by an instrument in writing, signed by both parties,which specifically states that it is an amendment hereto.

**18.****       Non-Complianceof Other Documents with Supply Agreement**

Sales of Productshereafter shall be governed by this Agreement and such other documents normallyused by the parties for such transactions including, but not limited to,purchase orders, confirmations, shipping documents and invoices provided,however, that if the terms and provisions of any such document or othercommunication from one party to the other respecting this Agreement or the Productshereunder are in conflict with this Agreement, this Agreement shall be deemedcontrolling.

**19.****       Independenceof Parties**

Nothing contained in thisAgreement shall be deemed to create a joint venture, partnership, agency orsimilar endeavour between the parties hereto. Each party shall act solely as anindependent contractor and neither part shall have any power or authority todirectly or indirectly bind or act on behalf of the other.

**20.****       Assignment**

This Agreement may not beassigned by any party, without the prior written consent of the other

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party, except to (1) adirect or indirect wholly-owned subsidiary, (2) any third party who shallacquire, by sale of assets or otherwise (including merger), all orsubstantially all of the assets or a controlling share of the stock of suchparty or (3) any entity 50.5% or more of the equity interest in which are ownedby shareholders of such party. No such assignment shall relieve the assigningparty of its obligations hereunder. This Agreement shall be binding upon anypermitted assignee or successor in interest of either party; provided, however,that any successor in interest of XTENT, whether by acquisition, merger orotherwise, may terminate this Agreement by providing written notice toFortimedix and payment of the amount which would be due for delivery of thegreater of the undelivered quantity of any then-current 3-month forecast or theundelivered portion of the total of any Minimum Quantities agreed to for suchyear and any subsequent years of the Validity Period, if any.

**21.****       PartialInvalidity of Agreement**

If any provision of thisAgreement is held by any competent authority to be invalid or unenforceable inwhole or in part, the validity of the other provisions of this Agreement andthe remainder of the provisions in question shall not be affected thereby.

**22.****       Changes**

Change proposals orchanges subjected to the Agreement have to be studied before changes can beexecuted. All changes requested by XTENT or Fortimedix must be mutually agreedupon before such changes are implemented by one of the parties. All notices,requests, proposals or other communication required or permitted to be givenunder this Agreement shall be in writing. Any notice given as aforesaid shallbe deemed given and effective upon actual delivery. Any party may change itsaddress by notice given in accordance herewith.

**23.****       DisputeResolution**

The Parties agree thatany dispute arising under this Agreement, or in connection with any breachthereof, shall be finally resolved through binding arbitration conducted inaccordance with the arbitration rules and procedures of the InternationalChamber of Commerce by one (1) arbitrator appointed in accordance with saidrules.  Any such arbitration shall beheld in London, United Kindom. The arbitrator shall determine what discoverywill be permitted, consistent with the goal of limiting the cost and time whichthe Parties must expend for discovery; provided the arbitrator shall permitsuch discovery as the arbitrator deems necessary to permit an equitableresolution of the dispute.  Any writtenevidence originally in a language other than English shall be submitted inEnglish translation accompanied by the original or a true copy thereof.  The costs of the arbitration, includingadministrative and arbitrators’ fees, shall be shared equally by the Parties,and each Party shall bear its own costs and attorneys’ and witness’ feesincurred in connection with the arbitration. Any award may be entered in a court of competent jurisdiction for ajudicial recognition of the decision and applicable orders of enforcement.

**24.****       Counterpartcopies**

This Agreement may besigned in one or more counterpart copies all of which together shall constituteone Agreement and each of which may equally evidence this Agreement.

**25.****       GoverningLaw, Language**

This Agreement shall beconstrued and interpreted under and in accordance with the laws of TheNetherlands. The official text of this Agreement shall be in English. Shouldthe parties sign or execute a version of this Agreement in another language,any interpretation or construction thereof shall be based solely on the Englishlanguage text.

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Inwitness of all the above, parties hereto have caused this Agreement to beexecuted as of the day and year first written above.
| For and on behalf of **Fortimedix  B.V.** |   | For and on behalf of**XTENT  Inc.** |
|-------------------------------------------|--------|-------------------------------------|
| For and on behalf of**Fortimedix B.V.**   |   | For and on behalf of**XTENT Inc.**  |
| Name:                                     |   | MARC VAN DE GRAAF                   |   | Name: |   | HENRY A. PLAIN, JR. |
| Title:                                    |   | CEO                                 |   | Title: |   | Chairman |
| Date:                                     |   | 03 April 2007                       |   | Date: |   | 3/27/07 |
| Signature:                                |   | /s/ MARC VAN DE GRAAF               |   | Signature: |   | /s/ HENRY A. PLAIN, JR. |

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**APPENDIX 1: PRODUCT SPECIFICATIONS**
| **Position** | ** ** | **Fortimedix  Partnumber** | ** ** | **XTENT Partnumber** | ** ** | **Description**                   | ** ** | **Specification numbers** |
|--------------|------------|----------------------------|------------|----------------------|------------|-----------------------------------|------------|---------------------------|
| 1            |       | 100052                     |       | MS02703              |       | XTENT coronary  stent 3.5mm MP35N |       | 118001 &  199014      |
| 2            |       | 100061                     |       | MS03481              |       | XTENT coronary  stent 3.0mm MP35N |       | 131001 &  199014      |

 

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**APPENDIX2: PRICES**
| ** ** | ** ** | **[*]** | ** ** | **[*]** | ** ** | **[*]** | ** ** | **[*]** | ** ** | **[*]** | ** ** |
|------------|------------|---------|------------|---------|------------|---------|------------|---------|------------|---------|------------|
| [*]        |       | [*]     |       | [*]     |       | [*]     |       | [*]     |       | [*]     |       |
| [*]        |       | [*]     |       | [*]     |       | [*]     |       | [*]     |       | ∞ |       |
| [*]        | ** ** | [*]     | ** ** | [*]     | ** ** | [*]     | ** ** | [*]     | ** ** | [*]     | ** ** |

 

Prices areEx-Works (Incoterms 2000), excluding taxes and excluding duties.

Prices for the Products are [*].

The above-mentioned prices are for stents, which are:

[*].

·                  In compliance with XTENT’s specifications as set forth in Appendix 1 andany other specifications agreed-to in writing during the term of this Agreement(including those set forth in any Purchase Order accepted by Fortimedix).

The above-mentioned prices include [*].

Certain Confidential Information contained in this document, marked by“[*],” has been omitted and filed separately with the securities and exchangecommission pursuant to rule 406 of the securities act of 1933, as amended.

 

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**APPENDIX 3: XTENT PURCHASE ORDERTERMS AND CONDITIONS**

# SHIPPING INSTRUCTIONS

**1.            Tariff Provisions:**All shipments shall be made in strictconformity with governing tariff rules and regulations and packagingspecifications, except where otherwise specifically required by provisions ofthis Order.

**2.            RoutingInstructions:**

**(a)** Freight shipments are to be routed viaOrder instructions or as authorized by Buyer. Seller will request prior routing instructions for delicate equipment oremergency shipments.

**(b****)** Freight Charges: Shipments are to bemade “Freight Collect” on FOB source shipments, unless otherwise specifiedherein. AIRBORNE shipments are to have freight charges prepaid and added to thegoods invoice. Attach copies of paid freight bills to any invoice that includestransportation charges.

**(c)**Insurance: Do not declare any value forcarriage or insurance.  Shipments shallbe released to minimum value of governing classification or tariff, or insuredfor minimum value for traceability.

**(d)** Consolidation: Except where limited byClause 2(c), above, consolidate all shipments to the delivery point specifiedherein, for any one day, on one bill of lading.

**(e)**Purchase Order Number(s) must appear on all correspondence; shippinglabels; invoices; and shipping documents, including packing sheets, bills oflading, and air bills.

**3.            HazardousMaterial Packaging, Labeling, and Shipping:** Seller shall comply with provision 10below.

# PURCHASE ORDER GENERAL PROVISIONS

**1.            Warranties:** Seller expressly warrants that all itemsfurnished to Buyer hereunder will be fit and safe for the purpose for whichmanufactured and for any particular purpose recommended to Buyer by Seller,will be free from defects in material and workmanship, will conform toapplicable specifications, drawings, samples and descriptions and, if of Seller’sdesign, will be free of design defects. These warranties are in addition to anyother express or implied warranties of Seller with respect to the items, andshall survive acceptance by Buyer of items and any payment by Buyer withrespect to items. Neither Seller’s shipment of any items ordered hereby norpayment by Buyer of any invoice from Seller to Buyer therefore shall constituteBuyer’s acceptance of items ordered hereby or waiver of Seller’s warrantieshereunder.  If in Buyer’s reasonableopinion any item delivered by Seller hereunder is unmerchantable, unfit for itsintended use, or for any particular purpose recommended to Buyer by Seller, orotherwise defective; then, at any time within ninety (90) days from the datewhen such items are received by Buyer, Seller shall at the Seller’s cost,including, without limitation reasonable field and shutdown costs and any andall packing, shipment, delivery, and installation costs, promptly repair,modify, or replace any items.

**2.            Changes:** By written order, Buyer may from timeto time order work suspension or make changes in drawings, designs,specifications, quantity, place of delivery, methods of shipment and packaging,property and services furnished by Buyer. If such change causes an increase ordecrease in the price of this Order or in the time required for itsperformance, Seller shall promptly notify Buyer thereof and assert its claimfor adjustment within 10 days after the change is ordered, and an equitable adjustmentshall be made. However, nothing in this provision shall excuse Seller fromproceeding immediately with the Order as changed.  Whether made pursuant to this provision or bymutual agreement changes shall not be binding upon Buyer except when specificallyconfirmed in writing by a member of Buyer’s Purchasing Department. Information,advice, approvals, or instructions given by Buyer’s technical personnel orother representatives shall be deemed expressions of personal opinions only andshall not affect Buyer’s and Seller’s right and obligations hereunder unlessset forth in a writing which is signed by a member of Buyer’s PurchasingDepartment and which expressly states that is constitutes an amendment to thisOrder. Seller is required to notify Buyer immediately upon making any changesto the Sellers manufacturing process, materials, or handling that couldpossibly affect the quality of the material or service when incorporated into afinished device.

**3.            Infringement Indemnity:** Seller warrants that items furnished hereunderwill not and do not infringe any third party patent, copyright, trademark, ortrade secret. If any claim, action, suit or other proceeding is brought againstBuyer based upon copyright, trademark, patent or proprietary rights of a thirdparty under the laws of any governmental authority relating to the items, Buyerwill give timely written notice to such claim, action, suit or other proceedingto Seller.  Seller will defend any suchclaim, action, suit or other proceeding on behalf of and without expense toBuyer or Buyer may conduct its own defense which shall be at Seller’s expenseand Seller will indemnify and save Buyer harmless from all losses, costs ordamages, including without limitations reasonable fees for attorneys suffered byBuyer as a result of any such claim, action, suit or other proceeding. Sellerwill, at Seller’s expense (a) use Seller’s best efforts to procure for Buyer orBuyer’s customers the right to continue selling or using any items or partsthereof that may be affected by such claim of infringement, or (b) replace theallegedly infringing items or parts thereof with non-infringing items or modifysuch items or parts thereof so that they become non-infringing; providedhowever, that such modification shall not materially alter the characteristics,or affect or increase the cost of use, operation or maintenance of such items.

**4.            Proprietary Information, Duplicationand Disclosure:**

**(a)** Seller shall not use for any purpose,other than fulfilling Buyer’s Orders, or disclose, without Buyer’s priorwritten consent, any tools or other items or any drawings, specifications,technical information or other data which have been specifically designed forBuyer in connection with this Order or furnished by Buyer.

**(b)** Seller agrees that it will notpublicize this Order or disclose, confirm, or deny any details thereof to thirdparties, or use Buyer’s name in connection with Seller’s sales promotion orpublicity without prior written approval from Buyer.

**5.           ****Default:**Buyer may terminate this Order for Seller’s default, if Seller becomesinsolvent, fails to pay it’s debts as they become due, or makes or proposes anassignment for the benefit of creditors.

**6.            Force Majeure:** Neither Buyer nor Seller shall be liablein damages for, nor shall this Purchase Order be terminable or cancelable byreason of, any delay or default in either party’s performance hereunder if suchdefault or delay is caused by events beyond such party’s reasonable controlincluding but not limited to, acts of God, action of any government or agencythereof, war or insurrection, civil commotion, destruction of facilities ormaterials by earthquake, fire, flood or storm, labor disturbances, epidemic, orfailure of suppliers, public utilities or common carriers. The party soaffected shall give prompt notice to the other party of such cause and shalltake whatever reasonable steps are necessary to relieve the effect of suchcause as rapidly as possible. Both parties agree to endeavor to resumeperformance of all obligations under this Purchase Order as soon as practicalif such performance is delayed or interrupted by reason of force majeure.

**7.            Assignments and Subcontracting:**

**(a)**Neither this Order nor any interestherein nor claim hereunder may be assigned or delegated by Seller; nor may allor substantially all of this Order be further subcontracted by Seller withoutthe prior written consent of Buyer. Buyer’s consent shall not be deemed torelieve Seller of its obligations to comply fully with the requirements hereof.

**(b)** Notwithstanding the above, Seller maywithout Buyer’s consent assign monies due and to become due hereunder providedBuyer shall continue to have the right to exercise and all of its rights under,settle any and all claims arising out of and enter into amendments to thisOrder, without notice to or consent of the assignee. Buyer shall be givennotice of the assignment; all invoices shall refer to the assignment.

**8.            Invoices:**

**(a)** Invoices in duplicate shall be mailedto Buyer’s Accounts Payable Department when items are shipped. The time forpayment shall not commence before Buyer’s actual or scheduled receipt,whichever is later of items at their destination or before performance bySeller in accordance with the requirements of this Order. Without limitingBuyer’s other remedies, if data is deficient or is not furnished whenscheduled. Buyer may withhold remaining payments (or such portion thereof asBuyer may deem equitable) until such deficiency or delinquency is cured. Allshipping costs and all federal

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manufacturers’and retailers’ excise and state or local sales or use taxes, when applicable,must be billed as separate items on Seller’s invoices. And all tax exemptioncertificates shall be accepted by Seller.

**(b)** In addition to any other remedies thatmay be available in law or in equity, Buyer shall have the right to recoverfrom Seller by offset or otherwise the price of any items returned to Sellerunder the terms of this Order.

**9.            Buyer’s Representatives:** Buyer’s employees are functioning in a representativecapacity for Buyer with respect to any actions taken in connection with thisPurchase Order and may not be held personally liable by Seller for suchactions.

**10.          Hazardous Material Packaging,Labeling, and Shipping:** Seller shall package label, transport, and ship hazardous materials oritems containing hazardous materials in accordance with all applicable Federal,State and Local laws and regulations, including but not limited to currentpublished issues of tariffs and regulations reflecting 49 Code of FederalRegulation Articles 100-199, the Explosive Safety Manual AFM 127-100 andFederal Aviation Regulation 103, as amended (e.g., the current Hazardousmaterials Regulations of the Department of Transportation; the Official AirTransport Restricted Articles Tariff; and subsequent reissues thereof) andfurnish appropriate Material Safety Data Sheets in accordance with CaliforniaHazardous Substances Information and Training Act. Seller prior to eachhazardous material shipment, shall notify Buyer of its nature and shipment databy such means of communication as will allow for proper preparation foracceptance of delivery by the carrier of the material and shall identify sameon all shipping documents.

**11.          Cancellation:** Buyer may cancel this Purchase Order with30 days written notice to Seller. Buyer and Seller will negotiate a reasonablecancellation fee to be paid by Buyer, such fee including such Seller expensesas costs for specialty raw materials procured in advance by Seller for Buyerfor this Purchase Order, goods in progress and finished goods on hand. Suchcancellation fee will not include any penalty for cancellations.

**12.          Disputes:** Irrespective of the place of performance,this Order will be construed and interpreted according to the laws of the stateof California without resort to California’s Conflicts of Laws rules. Pendingfinal resolution of a dispute hereunder, the seller shall proceed diligentlywith the performance of this Order and in accordance with the Buyer’s decision.Venue for any legal proceedings between Buyer and Seller shall be in the stateor federal judicial district closest to Menlo Park, California.

**13.          General:** This order and the attachments anddocuments incorporated herein constitute the complete and exclusive statementsof the terms of this agreement between Buyer and Seller and supersede all priorrepresentations, understandings, and communications relating hereto. Theinvalidity in whole or in part of any provision of this Order shall not affectthe validity of other provisions. Buyer’s failure to insist, in any one or moreinstances, upon the performance of any term of Order shall not be construed asa waiver or relinquishment of Buyer’s right to such performance or to futureperformance of such a term or terms and Seller’s obligation in respect theretoshall continue in full force and effect. Time shall be of the essencehereunder. Seller shall perform work and make deliveries no earlier than andonly to the minimum extent consistent with delivery schedules and otherrequirements.

**14.          Precedence****:** Conflicting provisions hereof, if any shall prevail in the followingdescending order of precedence: (1) typed provision set forth on this Order,(2) Buyer’s Purchase Order Attachments, (3) the preprinted portion of this Order,including these Purchase Order General Provisions, 4) statement of work, and(5) specifications attached or incorporated by reference.

                                                                                                                                    Rev. 6/06-SF

 

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