Terms and Conditions of Sale

General: Flashtalk Technology, Inc. (“FTI”) and Customer agree that the terms and conditions identified in this Agreement shall govern exclusively the sale or licensing by FTI of all hardware, firmware, software and services (collectively referred to as “Goods”) within the United States. No addition or modification to any of the terms and conditions as they appear in this Agreement shall be binding upon FTI unless in writing and signed by an authorized representative of FTI. FTI objects to and rejects other terms and conditions that may be proposed by Customer or that appear on or are referenced in Customer's purchase order or requisition that are in addition to or otherwise not consistent with the terms and conditions in this Agreement.

Terms: Terms are net thirty (30) days from date of invoice, subject to credit approval. Customer to pay all costs of collection. No payment by offset is permitted. In addition to its rights described in the section Cancellation and Termination, FTI reserves the right to suspend any further performance hereunder or otherwise in the event payment is not made when due.

Shipment: Shipment will be Ex Works FTI’s factory, warehouse or other point of shipment by FTI (per current Incoterms). Customer to pay all shipping, insurance, C.O.D. and related charges.

Title and Responsibility: Title to hardware shall remain with FTI as security only and until full payment therefor. Title for software or firmware remains with FTI and is licensed for use by Customer pursuant to FTI’s license agreement. Risk of loss or damage shall pass to Customer upon shipment from Ex Works point.

Quotations: All written quotations and proforma invoices automatically expire unless accepted within thirty (30) days from the date quoted. Verbal quotations expire the same day they are made. In order for catalog orders to be binding, quotations must specifically identify Goods and list the actual quantities involved. All stenographic and clerical errors are subject to correction.

Published Prices, Weights and Dimensions: Prices shown in any FTI publication are subject to change without notice and are not to be construed as a definite quotation or offer to sell by FTI. Published or advertised weights and dimensions are estimates or approximations only and are not warranted.

Taxes: Prices do not include sales, use, excise, customs, value-added or similar taxes, and Customer shall pay or reimburse FTI for all such taxes as they apply.

Services: Services (including installation, repair, start-up, application engineering assistance and technical training) are not included in the price unless specifically agreed to in writing by FTI.

Scope Change: All changes affecting Goods, delivery date or otherwise affecting the scope of the order are to be documented in writing and subject to prior approval at FTI Headquarters. All changes approved by FTI may result in price, delivery, specification, and/or other changes.

Warranty: FTI warrants to Customer that the Goods will be free from defects in workmanship for a period of six (6) months from the date of shipment from FTI’s factory in Solon, Ohio (or such other period of time specified by FTI on the face of its written quotation), and shall comply, as applicable, with specifications listed by FTI on the face of its written quotation. Satisfaction of this warranty, consistent with other provisions herein, will be limited to the replacement, or repair or modification of, or issuance of a credit for the Goods involved, at FTI’s option, only after the return of such Goods with FTI’s consent in accordance with RETURN OF EQUIPMENT. Any warranty service (consisting of time, travel, and expenses related to such services) performed other than at FTI’s factory, shall be at Customer’s expense.

Such warranty satisfaction is available only if (a) FTI is promptly notified in writing upon discovery of an alleged defect and (b) FTI’s examination of the subject Goods discloses, to its satisfaction, that any alleged defect has not been caused by misuse, neglect, improper installation, improper operation improper maintenance, repair, alteration or modification, accident, or unusual deterioration or degradation of the Goods or parts thereof due to physical environment or due to electrical or electromagnetic noise environment. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES WHETHER EXPRESSED, IMPLIED OR STATUTORY INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE and thereby excludes certifications or the like for product performance, use or design with respect to any standard, regulation or the like (unless and to the extent independently approved in writing at FTI Headquarters) AND EXTENDS ONLY TO CUSTOMER PURCHASING FROM FTI OR AUTHORIZED FTI RESELLER.

Limit of Liability: IN NO EVENT, REGARDLESS OF CAUSE, SHALL FTI ASSUME RESPONSIBILITY FOR OR BE LIABLE (a) FOR BUSINESS INTERRUPTION, LOSS OF PROFIT OR THE LIKE, (b) FOR PENALTIES OR PENALTY CLAUSES OF ANY DESCRIPTION, OR (c) FOR INDEMNIFICATION OF CUSTOMER OR OTHERS FOR COSTS, DAMAGES, OR EXPENSES EACH ARISING OUT OF OR RELATED TO THE GOODS OR SERVICES OF THIS ORDER, (d) FOR CERTIFICATION, UNLESS OTHERWISE SPECIFICALLY PROVIDED HEREIN, OR (e) FOR INDIRECT OR CONSEQUENTIAL DAMAGES UNDER ANY CIRCUMSTANCE, INCLUDING ANY LOSS, INJURY, OR OTHER DAMAGES. FTI’S MAXIMUM LIABILITY, INCLUDING DIRECT DAMAGES, SHALL NOT EXCEED THE AMOUNT OF THE PURCHASE ORDER. THIS LIMITATION OF FTI’S LIABILITY WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE. ANY ACTION AGAINST FTI MUST BE BROUGHT WITHIN SIX MONTHS AFTER THE CAUSE OF ACTION ACCRUES.

EACH PROVISION HEREOF WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTY OR CONDITION OR EXCLUSION OF DAMAGES IS SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND IS TO BE ENFORCED AS SUCH.

Licensed Software and Firmware: Software or firmware which is subject to any FTI license agreement is also subject to Terms and Conditions herein unless inconsistent with the FTI license agreement, in which case the license agreement shall govern. By using the product, Customer agrees to the terms and conditions of the FTI license agreement.

Indemnification: Customer agrees, as separate obligations, to reimburse, indemnify, hold harmless and to defend FTI (or to pay any attorney’s fees and other related expenses incurred by FTI) at Customer’s sole expense against all actual or alleged damage, loss, expense, claim, liability or penalty, including but not limited to claims of infringement of proprietary rights, unfair competition, bodily injury or death, property or other damage, arising out of the design or any application, use, misuse, possession, consumption or sale of Goods or from any act or omission of Customer, its affiliates, its reseller and end customers, or failure of Customer to properly perform and/or comply with this Agreement and the terms hereof. FTI shall give written notice of any claim or potential claim to Customer within a reasonable time following the time at which FTI first became aware of the circumstances which gave rise to such claim for indemnification hereunder. The obligation to indemnify under this section shall survive the cancellation, termination or expiration of this Agreement.

Export Control: Any Goods or technical data supplied by FTI under these Terms and Conditions are subject to the United States Export Administration Act and Regulations thereunder, which includes the licensing of certain products. It is the responsibility of the exporter to comply with the Act and Regulations.

Goods Returned for Repair: Prior to returning Goods for repair, the Customer must first obtain a Return Merchandise Authorization (“RMA”) number. The RMA number must appear on the shipping carton. A Return Merchandise Authorization will be valid for 30 days only. The customer shall pay all shipping and insurance charges to FTI.

When Goods are received without an RMA number, or if the RMA has expired, FTI may, at its option, return the Goods to the customer, freight collect, or process the return for a handling charge of twenty-five dollars ($25) or ten percent (10%) of the product cost, whichever is greater.

Non-Cancelable, Non-Returnable Inventory: “Non-Cancelable, Non-Returnable Inventory” means all inventory that is either (i) in FTI’s possession and not returnable to the vendor/supplier or usable for other accepted orders from Customer, or (ii) on order from a vendor/supplier and not cancelable.

Returnable Inventory: Returnable Inventory means all inventories that may be returned to a vendor for either full or partial credit, and may be further subject to return freight, restocking charges or other vendor fees. Customer shall pay the net cost to FTI for Returnable Inventory which is calculated as FTI’s cost minus vendor credits plus all charges for return freight, restocking charges or other vendor fees.

Customer Owned Inventory: For those components, parts, or other supplies (collectively “Customer Inventory”) owned by Customer and held by FTI at its warehouse for inclusion in Goods, Customer agrees that it retains: (i) all risk of loss for damage or casualty to Customer Inventory, and (ii) the sole obligation and responsibility of maintaining insurance for casualty, loss, damage, fire and theft of Customer Inventory, whether self-insured or through third party insurers. FTI shall have no risk of loss and no obligation to insure Customer Inventory. Customer further agrees to defend, indemnify and hold harmless, FTI, its affiliates, and all directors, officers, employees and agents from and against all casualty, loss, damage, fire and theft of Customer Inventory.

Tooling: Customer shall pay for, or obtain and consign to FTI, any tooling specific to the Goods.

Non-Recurring Expenses: Customer shall prepay all non-recurring expenses as set forth in the applicable Quotation.

Cancellation and Termination: Any order placed under this Agreement may be modified or cancelled or terminated, and scheduled shipments may be deferred by the Customer only (a) upon FTI’s prior written agreement and (b) upon terms, satisfactory to FTI, that compensate FTI for all costs incurred by reason of such modification, cancellation or deferment, which shall take into account, among other things, all labor, facility, and equipment costs identified in the order and which have been incurred prior to the date of notice, the cost of any Non-Cancelable, Non-Returnable Inventory, any vendor cancellation charges (including restocking fees), the net cost to FTI for Returnable Inventory, and any unreimbursed non-recurring engineering expenses, tooling, or production costs and the impact on the purchase price of Goods not cancelled. All such costs and expenses resulting from the cancellation and ten percent (10%) of the final net price will be included in the cancellation charges to compensate for disruptions in scheduling, planned production, and other direct costs. Payment shall be made within thirty (30) days from date of invoice.

FTI shall have the right to cancel any order placed under this Agreement or terminate this Agreement at any time by written notice for any breach of the order or this Agreement, including but not limited to non-payment by the Customer, and FTI shall be entitled to collect cancellation and termination charges as identified above.

No termination by Customer for default shall be effective unless and until FTI shall have failed to correct such alleged default within forty-five (45) days after receipt by FTI of the written notice specifying such default.

Force Majeure: FTI shall not be liable for any loss, damage or delay in delivery due to acts of God or causes beyond its reasonable control including acts of the Customer, acts of civil or military authority, fires, strikes, floods, epidemics, quarantine restrictions, war, riots, delays in transportation, transportation embargoes, or inability due to causes beyond its reasonable control to obtain necessary engineering talent, labor, materials or manufacturing facilities. In the event of such delay, the delivery date shall be extended for that length of time as may be reasonably necessary to compensate for the delay.

Government Clauses and Contracts: No Government contract regulations or clauses shall apply to the goods of this order or bind FTI unless specifically agreed in writing at FTI Headquarters.

Assignment: This Agreement may not be assigned by either party without the written consent of the other party.

Governing Law and Forum: This Agreement shall be made in and performed in the State of Ohio and shall be governed by and interpreted in accordance with the laws of the State of Ohio including its provisions of the Uniform Commercial Code, but specifically excluding the provisions of the 1980 UN Convention on Contracts for the International Sales of Goods. Customer agrees that all actions or proceedings arising directly or indirectly from this Agreement shall be litigated exclusively in courts having both jurisdiction and venue within the State of Ohio and Cuyahoga County. Customer hereby consents to the jurisdiction of any local, state or federal court located within the State of Ohio and Cuyahoga County and waives the personal service of any and all process upon Customer herein and consents that all such service or process may be made by certified mail to the Customer. Should any term or provision of this Agreement be held wholly or partly invalid or unenforceable under applicable law, the remainder of the Agreement evidenced hereby will not be affected thereby.

April 2012. Supersedes all prior versions.

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