Triton Terms and Conditions for Goods or Services (Purchase Agreement)

1. PARTIES. “Seller” as used herein means the addressee of this order. “Buyer” as used herein means Triton Systems, Inc.
2. ACCEPTANCE AND LIMITATIONS. By shipping the goods ordered on the face of this order, providing the services or by acknowledging receipt of this order, Seller agrees to the terms and conditions of sale set forth on the face hereof as well as those printed hereon. These terms and conditions constitute an offer by Buyer, which may be accepted only on these terms and conditions. Any additional or different terms and conditions contained in Seller’s acknowledgment form, or other document, will not become part of this order unless the Buyer accepts them in writing.
3. VARIATION IN QUANTITY.  Goods shipped in excess of Buyer’s order may be returned at Seller’s expense.
4. CHARGES. No charge for packing or cartage will be allowed and all shipments FOB Destination or on which full freight is allowed must be prepaid unless expressly agreed upon by Buyer.
5. PACKAGING. Seller warrants that all packaging materials furnished under this order and all packaging associated with goods furnished under this order were not manufactured using and do not contain chlorofluorocarbons. Additionally, Seller warrants and certifies that all goods, including packaging and packaging components provided to Buyer have been accurately labeled in accordance with the requirements of 40 CFR part 82. Seller agrees to indemnify, defend and save the Buyer harmless, its officers, directors and employees from and against any losses, damages, claims, demands, suits, liabilities, fines, penalties and expenses (including reasonable attorney’s fees) that may be sustained by reason of Seller’s non-compliance with such applicable law.
6. TITLE AND RISK OF LOSS.  Title and risk of loss and damage to goods purchased by Buyer under this order shall vest in Buyer when the goods have been delivered at the FOB point. If the goods are delivered in a damaged or defective condition or are damaged during delivery, Buyer may, at its option, exercise the rights and remedies set forth in Paragraph 7, entitled “WARRANTY,” which are available upon refusal or revocation of acceptance and may also refuse to accept delivery of the goods from the carrier. Time is of the essence and Buyer may, at its option and without limitation of any of its other rights, cancel all or any unfulfilled part of this order if deliveries are not made within the time specified.
7. WARRANTY.  Seller warrants to Buyer and Buyer’s customers as follows:
   1. Goodsfurnished to Buyer will be merchantable, free from defects in design material and workmanship, and with conform to and perform in accordance with the specifications, drawings and samples. These warranties extend to the future performance of the goods and shall continue for a period of twelve (12) months (or such longer period if specified elsewhere in this order) following acceptance by Buyer, or if for resale by Buyer’s customer. In addition, if goods furnished contain one or more manufacturers’ warranties, Seller hereby assigns such warranties to Buyer and its customers. Goods or services not meeting the warranties will be, at Buyer’s option, returned for refund, repaired, replaced or re-performed by Seller at no cost to Buyer or its customers and with transportation costs and risk of loss and damage in transit borne by Seller. Repaired or replaced goods shall be warranted as set forth above in this Paragraph. All warranties shall survive inspection, acceptance and payment.
   2. Services furnished to Buyer will be performed to applicable generally accepted industry standards. 
8. SHIPPING INSTRUCTIONS. Seller warrants and agrees that it will comply with and be governed by the following shipping instructions and provisions related thereto.
   1. PACKING.Buyer’spurchaseordernumber,partnumber,andmaterialdescriptionmustappearontheoutside of each package and on all packing slips, invoices and allied papers. A packing slip must be included with each shipment
   2. INVOICES. Invoices in duplicate must be mailed to Buyer (address shown on front side) no later than the day following the date of shipment, together with bill of lading, express receipt or other shipping documents. The time for discounting invoices shall begin on the date of receipt of goods at Buyer’s plant or other specified delivery point or on the date of Seller’s invoice whichever is later.
   3. ROUTING. If Buyer specifies no shipping instructions, Seller shall ship by the most direct and cheapest way. If shipping instructions are specified, Seller authorizes Buyer to deduct from any invoice of Seller (or to charge back to Seller) any increased costs incurred by Buyer as a result of Seller’s noncompliance
9. COMPLIANCE WITH LAWS. Seller and all persons representing Seller shall comply at their own expense with all applicable federal, state, local and foreign laws, ordinances, regulations and codes, , and including the identification and procurement of required permits, certificates, licenses, insurance, approvals and inspections in performance of the sale of goods or performance of services, under this order.  Seller agrees to indemnify, defend (at Buyer’s request) and save harmless Buyer, its affiliates and its customers and each of their officers, directors and employees from and against any losses, damages, claims, demands, suits, liabilities, fines, penalties and expenses (including reasonable attorney’s fees) that arise out of or result from any failure to do so.
10. INDEMNITY. Seller agrees to indemnify and save harmless Buyer, its officers, agents, directors, employees, successors and assigns (all hereinafter referred to as “Buyer”) from and against any losses, damages, claims, demands, suits liabilities, fines, penalties, judgments, and expenses (including reasonable attorney’s fees) that arise out of or from: (1) any claim made or action brought on the ground that use or resale by Buyer, or by anyone purchasing from Buyer, of the goods hereby ordered infringes any patent, trademark, copyright, trade name, license or other proprietary right of other parties (2) injuries or death to persons or damage to property, including theft, in any way arising out of or occasioned by or on account of the performance of the work or services performed by Seller or persons furnished by Seller and (3) any failure on the part of Seller to satisfy all claims for labor, equipment materials and other obligations relating directly or indirectly to the performance of the work or services.
11. CHANGES. Buyer has the right to make changes in one or more of the following areas with respect to the goods or services: statement of work, drawings, designs and specifications, quantities, places of delivery, inspection and acceptance, delivery schedules, method of shipment and packaging or packing. To be effective, a change must be made by written change order issued and signed by Buyer’s Purchasing Representative. If a change order issued by Buyer causes an increase or a decrease in the cost of performing the Work or the time required for its completion, Buyer may make an equitable adjustment in price and/or delivery schedule. Any claim by Seller for an equitable adjustment must be submitted in writing to Buyer’s Purchasing Representative within thirty (30) days of receipt of the change order from Buyer. Seller shall proceed with performance of the order as changed. The fact that there may be a disagreement concerning a requested equitable adjustment or other issues related to the change shall not excuse Seller from continuing such performance in a timely manner.
12. CANCELLATION. Buyer shall have the right to cancel this Order or any part thereof at any time. If production of the goods or performance of the services hereby ordered has not commenced, Buyers liability in the event of such cancellation shall be limited to the actual expenditures incurred by Seller on this order. If production of goods or performance of services has commenced, Buyer’s liability shall be limited to acceptance of and payment for goods or services the manufacture or performance of which has been completed in accordance with this order and to the payment for actual expenditures incurred by Seller on the balance of the order. . In the event an advance payment is made, Seller shall return the full advance payment, unless the parties mutually agree on a deduction for actual expenditures. Buyer shall also have the right at any time, to have Seller suspend work on goods or services ordered pending a determination of whether or not Buyer will cancel the order. If Buyer subsequently elects to cancel the order, its liability to Seller shall be determined as aforesaid but Buyer shall not be liable for cost or expenses incurred by Setter after the date of Buyer’s election to suspend work. Buyer shall also have the right to cancel this order without liability hereunder if Seller’s rights hereunder are assigned without the written consent of Buyer or in the event that Seller becomes bankrupt or insolvent or makes an assignment for benefit or creditors.
13. DEFAULT.  Notwithstanding Buyer’s rights under Paragraph 12, Buyer may, by written notice to Seller, cancel this order in whole or in part if Seller fails to (1) deliver the goods or perform the services within the time specified in this order, (2) make progress so as to endanger performance of this order or (3) perform any of the other provisions of this order. Buyer’s right to cancel this order under items (2) and (3) above may be exercised if Seller does not cure such failure within ten (10) days (or more, if authorized by Buyer in writing) after receipt of the notice from Buyer specifying the failure and upon such cancellation, any advance payments shall be returned, promptly. If Buyer cancels this order in whole or in part it may acquire under the terms and manner the Buyer considers appropriate, goods or services similar to those cancelled and Seller shall be liable to Buyer for any excess costs for those goods or services. 
14. FORCE MAJEURE. Neither party shall be held responsible for any delay or failure in the delivery of goods or performance of services of any part of this order to the extent that such delay or failure is caused by fire, flood, explosion, war, strike, embargo, government requirement, civil or military authority, act of God, or other similar causes beyond its control and without the fault or negligence of the delayed or non-performing party and its subcontractors. When the delay or nonperformance continues for a period of twenty (20) days, Buyer may cancel this order or any part of it relating to goods not already shipped, or services not already performed.
15. PRICES AND ALLOWANCES. Seller warrants that the prices, allowances and other terms and conditions of Seller applicable to this order are as reasonable as currently offered by Seller to any other customer for the same or similar type and quantity goods or services performed.
16. USE OF INFORMATION. No specifications, drawings, designs, layouts, formulae, sketches, models, samples, tools, computer or other apparatus, programs, technical or business information, intellectual property or data (“Information”), written, oral or otherwise, furnished by Seller to Buyer under this order shall be considered by Buyer to be confidential or proprietary unless the Seller so notifies the Buyer in advance and in writing. Buyer is free to obtain the same or similar Information from other sources, or to manufacture or provide them itself, and to use/or sell them, all in any desired quantities or volumes without any obligation whatsoever to Seller. Any Information furnished to, developed or acquired by Seller under this order, shall remain and be Buyer’s property. Seller agrees to keep confidential and use any Information received from the Buyer only for the purpose set forth in the order, and without Buyer’s written consent, not disclose to any other person. All Information in written, graphic or other tangible form furnished by Buyer hereunder (and copies thereof) and all notes, extracts, studies, compilations, memoranda and other documents containing such Information, shall be returned to Buyer or destroyed by Seller at Buyer’s request.
17. INSPECTION. Buyer shall at all times have access to the manufacture of goods or performance of services for the purpose of inspection or a Quality Review and Seller shall provide safe and proper facilities for such purpose. NOTE – IF A GOVERNMENT CONTRACT NO. APPEARS ON THE FACE OF THIS ORDER THE FOLLOWING APPLIES:
    If government inspection is required prior to shipment from Seller’s plant or performance of services, Seller must promptly notify the government representative normally servicing its plant so that government inspection can be accomplished. Upon receipt of this order, the Seller agrees to promptly furnish and copy to the government representative who normally services its plant or, if none, to the nearest Army, Navy. Air Force or Defense Supply Agency inspection office. In the event the representative or office cannot be located, our Purchasing Representative should be notified immediately.
18. TOOLS, DESIGNS, PATTERNS, DIES, ETC. No tools, designs, patterns, dies, etc. belonging to Buyer, and used by the Seller in the manufacture of goods, contracted for herein shall be used in the production, design in manufacture of articles for any other person, firm or corporation, nor for the manufacture of larger quantities than those specified herein, except with the specific permission of the Buyer. At the completion of this contract, said tools, designs, patterns, etc. shall be disposed of as Buyer may direct. All such items must be permanently marked or identified as property of Buyer and with a tool number as designated by Buyer.
19. PAYMENT TERMS.  Unless payment terms more favorable to Buyer appear on Seller’s invoice, and Buyer elects to pay on such terms, invoices shall be paid NET 45 after review and approval of Buyer’s Program Manager. In the event an advance payment is made, Seller shall return the full advance payment upon Cancellation or Default, without deduction.
20. CHOICE OF LAW. The laws of the State of Massachusetts shall govern the construction, interpretation and performance of this order and all transactions under it. The parties agree that the provisions of the Massachusetts Uniform Commercial Code (UCC) apply to this order.
21. ASSIGNMENT AND SUBCONTRACTING. Seller shall not assign any right or interest under this order (excepting monies due or to become due) or delegate or subcontract any work or other obligation to be performed without the prior written consent of Buyer. Any attempted assignment; delegation or subcontracting in contravention of the above provisions shall be void and ineffective.
22. GOVERNMENT CONTRACT PROVISIONS. If a U.S. government prime contract number or subcontract number appears on the face of this order the U.S. Government Contract Provisions contained in the Addendum to this Order entitled, _U.S. Government Contract Provisions” apply. These Government Contract Provisions are in addition to all of the foregoing provisions. In the event of a conflict between these U.S. Government Contract Provisions and the other provisions of this order, these U.S. Government Contract Provisions shall take precedence.
23. CONFLICT OF INTEREST. During the Term of this order, Seller shall not engage in any activity that could reasonably be interpreted as having a conflict of interest with the Services that Seller is working on for Buyer. Seller will avoid, and immediately notify Buyer of, any such actual or apparent conflict of interest with the objectives of Buyer or its clients. 
24. IP RIGHTS.  Buyer shall have all right, title and interest, including all copyright, trade secret and patent rights in and to the Work Product and any other intellectual property made or conceived by Seller under or arising out of this order (collectively “Work Product IP”), with the exception of Background IP described below.  Seller shall cooperate with Buyer in the prosecution or perfection of any work and all intellectual property rights in and to the Work Product IP. Seller shall retain all rights and title in all preexisting intellectual property, inventions, discoveries, improvements, mask works and patents owned by Seller (“Background IP”) and Seller hereby grants to Buyer a non-exclusive, worldwide, fully paid, irrevocable, perpetual, royalty-free, transferrable, sublicensable license to copy, use, make, have made, market, distribute, offer for sale, sell, import, improve, modify and create derivative works based on Background IP contained in the goods or services provided under this order.