Terms and Conditions Agreement

The following Terms and Conditions Agreement (“Agreement”, “TCA”) governs this quote, order and its attachments, all of which are incorporated by reference.

All quotations for goods and services and all orders placed with Digiode™ are subject to the terms of this Agreement. No verbal Agreements amending the terms of this Agreement are valid unless both the Purchaser and Digiode™ duly confirm them in writing. To the extent that any provision of this Agreement conflicts with any term or condition set forth in any prior or subsequent documentation, the provisions of this Agreement shall supersede and control.

1.0. Acceptance of Terms

Digiode™ expressly objects to any purported changes that would work to affect or alter its express terms and conditions of sale. Any purported change submitted by a Customer or (“Purchaser”, “You”) in any additional documentation is hereby expressly rejected. All purchases by Purchaser are expressly limited and conditioned upon acceptance of these Conditions. Neither Digiode’s commencement of performance nor delivery shall constitute acceptance of Purchaser's additional or different terms and conditions.

These terms are an offer which shall become a binding contract with Digiode™ subject to the express terms and conditions hereof, when accepted by your acknowledgment or commencement of performance. Purchaser’s commencement of performance, which includes, without limitation, ordering, purchasing or taking delivery of Material, shall in all cases constitute your unqualified and unconditional acceptance of the terms contained in this Agreement.

Purchaser is responsible for the accuracy of its order. Your specifications and relevant order information must be supplied to Digiode™ with sufficient time to enable Digiode™ to deliver the Materials per that specification. Digiode™ may also, at its discretion, reject the order and decline to complete any part of it. If we decline to complete your order, we will attempt to notify you using the contact information you have provided

Minimum Order Quantity. Some Materials are subject to minimum order quantities. Materials provided in tape and reel packaging are an example. If your order quantity is such that it will require a reel to be split for a future customer (i.e., Full reel has 1000 pcs, and you are only ordering 100 pcs), Digiode™ reserves the right to provide cut tape for the partial reel requirement or to enforce the minimum order quantity for that reel.

Material Pricing. The global market sets pricing for electronic components and other commodities. Prices and availability may be subject to change at any time prior to Digiode’s completion of your order. Quotations, unless otherwise stated, are valid on the business day of issue only. The price set forth in the quote shall be in US Dollars. The prices governing this order shall for all purposes, remain firm unless otherwise agreed to specifically in writing by Digiode™.

Note: Prices are for Materials only and do not include taxes, shipping charges, freight, duties, and other charges or fees, such as fees for special packaging and labeling of the Materials, permits, certificates, test reports, customs declarations and registration. Digiode’s quoted prices do not reflect the cost of accommodating and processing Purchaser’s purchases via credit card, bank wire, or any third-party procurement services, software or ecommerce providers. Credit card payments will incur a 3.5% credit card processing fee.

As-is and As-available. Materials are sold on an “as-is” and “as available” basis. Purchaser acknowledges that in some cases, due to the nature of the electronic components industry, authentic Material will often no longer have provenance or traceability to the original manufacturer or original packaging. Due to the need for quality inspections and review throughout the Material lifecycle, factory-sealed Material may no longer be available. Purchaser must clearly stipulate at the time of order if it requires such traceability documentation going back to the manufacturer, manufacturer COCs, original packaging, or labeling for Material acceptance. If Purchaser has not expressly stipulated a traceability, COC, packaging, or labeling requirement in its Purchase Order, Purchaser waives any right to cancel or return Material for lack of such documentation and Digiode™ will reject any return request citing lack of such documentation.

Stock Allocation. Digiode™ may release any stock it has set aside for you if you have not submitted an official purchase order or confirmed acceptance of the order within 24 hours of our quote. Note: High demand stock may be allocated sooner.

2.0. Delivery & Performance.

Purchaser acknowledges that delivery and/or shipment dates provided in connection with any order are approximates only and do not represent fixed or guaranteed delivery dates. Digiode™ will make every reasonable attempt to provide for prompt delivery of purchased Materials in accordance with order requests. The shipping carrier is not an agent of Digiode™. Delay in delivery of any part of an order shall not entitle Purchaser to cancel the delivery or other scheduled installments. Digiode™ reserves the right to make partial deliveries and Purchaser agrees to accept delivery and pay for the Materials delivered as a condition of this Order.

All deliveries will be made Ex Works Digiode’s facility or FOB place of origin. Hand-off and delivery of Materials to the carrier shall constitute delivery to Purchaser. Title and risk of loss passes to Purchaser once Materials leave Digiode’s custody or control. Unless a preference is specified by Purchaser, selection of the carrier and delivery route shall be made by Digiode™. Digiode™ will ship Material using customer’s shipping account number on file for all orders placed unless a different shipping account number is provided prior to order fulfilment.

All goods shall be delivered packed in suitable containers for shipping protection and storage. Purchaser must notify Digiode™ IMMEDIATELY in writing of any damage to the outer packaging, the Materials, or other order discrepancy within three (3) business days after receipt of the shipment to Purchaser’s facility and prior to shipment to any end customer; otherwise, Purchaser is deemed to have inspected and accepted the Materials and may not revoke acceptance.

The quantity of any shipment of Materials as recorded by Digiode™ on dispatch from Digiode’s place of business is conclusive evidence of the quantity received by Purchaser on delivery unless Purchaser can provide conclusive evidence proving the contrary. Digiode™ shall not be liable for any non- delivery of Materials (even if caused by Digiode’s negligence) unless Purchaser gives written notice to Digiode™ of non-delivery within three (3) days of the date when the Materials would, in the ordinary course, have been received. Any liability of Digiode™ for non-delivery of Materials shall be limited to replacing the Materials within a reasonable time or adjusting the invoice for such Materials to reflect the actual quantity delivered.

3.0. Material Acceptance.

Immediately upon Materials’ receipt, Purchaser shall, at its sole cost and expense, inspect Materials to ensure that it has received all quantities and the quality ordered. No later than three (3) days after Purchaser’s receipt of Materials and before the use, disposition, processing, or any other change from the original condition of any part of the Materials (collectively, “Use” or, as a verb, “Used”), Purchaser shall notify Digiode™ in writing of nonconformances. No Digiode™ inspection or audit shall relieve you of your responsibility to inspect and audit Material promptly for acceptance and conformance with the terms of this Agreement. If Purchaser finds that any Material does not comply with the specifications contained in the Order, Purchaser may reject that portion of the Material that fails to comply and request a refund or replacement. Purchaser must exercise its post-acceptance rights before any substantial change occurs in the condition of the item. Use of any portion of the order after delivery constitutes approval and acceptance of the order by Purchaser.

Purchaser’s failure to give timely, written notice to Digiode™ of any deficiency, defect or shortage within such three (3) day period shall constitute an unqualified acceptance of the Material and a waiver by Purchaser of all claims with respect thereto. If Purchaser has reason to believe any Material does not comply with the limited warranty set forth herein, Purchaser shall not Use the Material without the prior written approval of the Digiode™.

Purchaser is responsible for thoroughly and PROMPTLY performing an incoming inspection of Material upon receipt and prior to shipment of Material to any secondary customer site(s). Digiode™ is not responsible for defects or nonconformances found during incoming inspection at Purchaser’s customer’s or other end user site(s).

4.0. Payment Terms & Credit.

Payment of the total invoice amount, without offset or deduction, is due as stated on Digiode’s invoice. Digiode™ may process your method of payment prior to shipping Material for verification of funds.

Digiode™ makes no assurance or guarantee regarding any amount of credit or the continuation of such credit to Purchaser. If Digiode™, in its sole discretion, provides Purchaser with a line of credit to facilitate purchases of Materials from Digiode™, such credit line may be amended, decreased or terminated at any time, for any or no reason at all, in Digiode’s sole discretion.

Digiode™ reserves the right to modify any credit and payment terms extended to Purchaser whether or not Purchaser's financial condition or previous payment record warrants such action.

Late Payments & Collections. For each month in which any portion of your charges are not paid by the due date on your invoice, we may charge you a late payment fee. Purchaser shall also pay interest at a rate of two percent (2%) per month,

compounded monthly, or the maximum rate allowed by Law, whichever is less, on the outstanding amount of any unpaid invoice beginning on the day after the payment due date.

If Digiode™ uses a collection agency, or initiate any legal action to recover amounts due, you agree to reimburse all such costs and expenses associated with such collections efforts, including without limitation attorneys’ fees. If you are in default on one or more invoices, Digiode™ may apply payments to any of your outstanding accounts. If Purchaser defaults on any payment under this Agreement, Digiode™ may reschedule or cancel any outstanding deliveries and declare all outstanding invoices due and payable immediately.

Performance Assurance. If Digiode™ determines, in its sole discretion, that the creditworthiness or future performance of Purchaser is impaired or unsatisfactory, Digiode™ may, in addition to its other rights and remedies: (i) suspend deliveries of Materials; (ii) require prepayment by wire transfer of immediately available funds at least three (3) days prior to a scheduled shipment of Materials; and/or (iii) require Performance Assurance (as hereinafter defined) prior to a scheduled shipment. Purchaser hereby waives written notice of any such action. “Performance Assurance” means collateral in the form of either cash, letter(s) of credit, guaranty, or other security acceptable to Digiode™ in its sole discretion.

Security Interest. Digiode™ shall retain a purchase money security interest in all Materials delivered to Purchaser, and in such related accessories, replacements, accessions, proceeds and goods, including accounts receivable (collectively, the "Collateral") to secure payment of all amounts due under this Agreement. Purchaser’s failure to pay all amounts hereunder in full when and as due shall constitute a default hereof and shall give Digiode™ all rights of a secured party. If Purchaser fails to pay any amount when due, Digiode™ shall have the right to repossess and remove all or any part of the Collateral from Purchaser. Any repossession or removal shall be without prejudice to any other remedy of Digiode™ hereunder, at law or in equity. Title in the Material shall pass to Purchaser only upon payment in full.

No Waiver. Digiode™ may apply any payment received from Purchaser against any obligation owing from Purchaser to Digiode™, regardless of any statement appearing on or referring to such payment, without discharging Purchaser's liability for any additional amounts owing from Purchaser to Digiode™. Digiode’s acceptance of such payment shall not constitute a waiver of Digiode’s right to pursue the collection of any remaining balance.

Purchaser agrees to settle disputes with Digiode™ in good faith. In the event that a chargeback is placed or threatened on a purchase, Digiode™ will automatically block Purchaser’s customer account for future quotes or purchases, cancel any outstanding orders, and refer the account to collections.

5.0 Material Information.

Digiode™ makes every effort to provide current and accurate Material information, but makes no representation or warranty as to the accuracy, currency, or completeness of the Material information. Digiode™ hereby disclaims all representations, warranties and liabilities under any theory with respect to the Material information. Any typographical or other error or omission in any sales literature, pricing, invoice or quote is subject to correction without any liability on Digiode’s part to ensure conformance with regulatory requirements or manufacturer’s Material specifications. Purchaser shall validate any Material information before using or acting on such information in conjunction with this quote and/or Order.

Further Handling and Use. Digiode™ shall not be liable for, and Purchaser shall indemnify, defend and hold harmless Digiode™, its affiliates and their respective equity owners, shareholders, officers, directors, members, managers, employees, representatives and agents (“Indemnitees”) from and against any and all claims, losses, liabilities, costs and expenses, including attorneys’ fees, (collectively, “Claims”) arising out of or resulting from the handling, Use, combination with other components, incorporation, manufacture, storage, processing, alteration, distribution, transportation, sale or marketing of Materials, or any other action or inaction with regard to the Materials, in each case after the delivery thereof to Purchaser, including, without limitation, Material liability claims, intellectual property claims, and other liability for injuries, death, losses or damages; provided however, that Purchaser shall not be liable to Digiode™ for damages directly caused by the sole negligence of Digiode™. Purchaser’s obligation shall survive the termination, cancellation or expiration of all Purchase Orders delivered in connection with and the cessation of business between Digiode™ and Purchaser.

Use of Material. Purchaser acknowledges that Digiode™ acts solely as an independent distributor of electronic Materials and that the Purchaser is exclusively responsible for detailing the specification of all Materials (including manufacturer and date code information), for ascertaining the use to which they will be put, and for determining their ability to function for that purpose. Purchaser is solely responsible for identifying and defining all processes, considerations and site requirements, which may affect the performance, reliability or operation of the Material.

Digiode does not consent to the use of the Materials in critical safety or other applications where a failure may reasonably be expected to result in personal injury, loss of life, or serious property damage. If Purchaser uses or sells the Materials for use in any such applications or fails to comply with the manufacturer's Material specifications, Purchaser acknowledges that such use, sale, or non-compliance is at Purchaser's sole risk. Purchaser shall indemnify Digiode™ against any and all claims that result from or arise in connection with Materials supplied by Digiode™ and used in the Purchaser’s Material or in combination with other Materials. Purchaser will indemnify Digiode™ against all liabilities for infringement of third-party intellectual property rights arising from our compliance with the Purchaser's specific requirements regarding design or specification for the goods or arising from the use of the goods in combination with other Materials.

6.0. Export/Import Compliance.

Certain controlled Material and its technical documentation are subject to export control laws, regulations and orders of the United States and the export or import control laws and regulations of other countries.

In the event Digiode™ sells Material to Purchaser under this Agreement as a domestic transaction, and Purchaser later exports Material, Purchaser shall assume all responsibilities as the “U.S. Principal Party in Interest.” Purchaser shall not and shall not permit any third parties to, directly or indirectly, export, reexport, or release any Materials to any jurisdiction or country to which, or any party to whom, the export, reexport, or release of any Materials is prohibited by Law. Purchaser shall be responsible for any breach of this Section, including breach by its successors’ and permitted assigns, parent, affiliates, employees, officers, directors, partners, members, shareholders, customers, agents, distributors, resellers, or vendors.

Purchaser shall comply with all Laws and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, reexporting, or releasing any Material. Purchaser shall provide prior written notice of the need to comply with such Laws to any person, firm, or entity which it has reason to believe is obtaining any Materials from Purchaser with the intent to export or reexport. Purchaser agrees to pay any taxes, tariffs or duties, associated with the import or export of the Material in this order in full, without offset.

7.0. Technical Assistance.

Purchaser acknowledges that any technical assistance or advice offered by Digiode™ in connection with Purchaser’s purchase is given free of charge and as a courtesy to Purchaser. All technical advice, information, services, specifications, and recommendations by Digiode™ and its affiliates are intended for use by persons having skill and know- how, and are accepted by Purchaser at its own risk. Neither Digiode™ nor its affiliates assumes responsibility for results obtained or damages incurred from their use. Digiode™ shall not be held liable for the content or Purchaser’s use of such technical assistance or advice, nor shall any statement made by any of Digiode’s representatives in connection with the Materials or services constitute a representation or warranty, express or implied. Digiode’s employees or agents are not authorized to make any representations regarding any Materials or services unless confirmed by Digiode™ in writing and signed by an authorized manager. Purchaser acknowledges that it does not rely on any such representations that are not so confirmed.

8.0. Cancellations and Returns.

All orders are strictly non-cancelable and non-returnable (NCNR) unless goods are materially defective. Digiode™ will only authorize an RMA for documented quality issues that impact functionality, part failures, Digiode™ errors, and only if Purchaser meets the notice and use requirements in this Agreement. Digiode™ will not grant RMAs for damage, shortage, or other discrepancies created by Purchaser, the carrier or freight provider, or any other third party. Purchaser's recovery from Digiode™ for any claim shall not exceed the purchase price paid by Purchaser for those goods which are determined to be defective, irrespective of the nature of the claim.

Under no circumstances will Digiode™ accept returns for damage to Material caused by:

damage during shipment;
dropping, falls, spilled liquids, or immersion in liquids, impact with other objects;
failure to provide a suitable installation or operating environment for the Material and/or accessories (ESD protection/ humidity control);
use of the Material for purposes other than those for which they are customarily used;
using and Operating Material outside of datasheet specs, ratings and parameters;
other abuse, misuse, mishandling, or misapplication;
other improper installation, use or maintenance;
Purchaser’s programs, data, viruses, or other files, systems or components;
disasters such as fire, flood, wind, earthquake, or lightning, power surges.

Purchaser's sole remedies under this provision at Digiode’s discretion, are to: (i) repair the Materials; (ii) replace the Materials at no cost to Purchaser; or (iii) refund Purchaser the purchase price of the Materials. Any replacement parts or Materials provided to the Purchaser will be new or serviceably used, comparable in function and performance to the original part or Material, and warranted for the remainder of the original warranty.

Digiode™ is under no obligation to accept discretionary returns or cancellations that are due to Purchaser error, change in Purchaser demand, customs holds, or issues with third-party shipping carriers. Such cancellations may be accepted on a case-by-case basis and will be refunded via a credit note toward future purchases, less a 25% restocking fee or $250.00— whichever is higher. Unless otherwise provided by applicable law, any credit issued by Digiode™ to Purchaser in any case will expire if unused for twelve (12) months following the date of issuance of such credit.

Initiating a Return. Return requests require review and prior written approval from Digiode™. In order to start the returns process, Purchaser must provide Digiode™ a failure report in the English language from a credible testing facility certifying the problem with the supplied Materials’ form, fit or function. Reports will be accepted from:

a credible independent testing facility certifying the problem with the Materials’ form, fit or function; or
the Purchaser’s in-house test lab certifying the problem with the Materials’ form, fit or function where the failure is also duplicated by Digiode’s authorized lab.

No returned merchandise authorization (RMA) will be granted without a failure report clearly documenting the part identity, its Digiode™ provenance, and the nature of the failure or issue.

Approved Returns. If the return is approved, an RMA number will be issued. Once issued, Material must be returned to Digiode™ unused, unaltered, with its original packaging, and in salable condition within fifteen (15) calendar days. Upon Digiode’s receipt, inspection, and approval of the returned Material, Purchaser will receive a credit memo or refund equal to Purchaser’s full purchase price. Unless otherwise provided by applicable law, any credit issued by Digiode™ to Purchaser will expire if unused for twelve (12) months following the date of issuance of such credit.

Material returned to Digiode™ with previously undisclosed damage, without ESD protection, humidity control, or in otherwise unsalable condition will be subject to a 25% restocking fee. Digiode™ will not accept unauthorized returns or freight collect returns. Purchaser must return all Materials, freight prepaid, as detailed in the RMA and pay any restocking charges. Credit will only be given for parts that have been physically returned to Digiode™. If Purchaser attempts to return Material that has not been approved for return, even if the Material is shipped along with a valid return, Digiode™ will reject the entire shipment and return to the shipper at its expense.

9.0. Counterfeit Avoidance (Electronic Component Procurement)

Digiode™ takes counterfeiting seriously and makes every effort to avoid handling counterfeit components through various verification procedures. Per AS6081, a counterfeit component is a “fraudulent part that has been confirmed to be a copy, imitation, or substitute that has been represented, identified, or marked as genuine, and/or altered by a source without legal right with intent to mislead, deceive, or defraud.”

Digiode™ has a zero-tolerance policy for counterfeiting. If Purchaser is making a suspect counterfeit claim against the Material, Material must be reviewed against a golden sample and determined by an authorized official at the manufacturer to be counterfeit. Digiode™ requires unredacted documentation of this determination from the manufacturer which shall include the name, title/position, and direct contact information of the manufacturer’s authorized individual making the determination for verification. Blanket statements basing component authenticity solely on where a Material was procured are not sufficient as verification. Digiode™ reserves the right to contact the source for further verification, and lack of cooperation from the manufacturer’s authorized individual may prejudice the Purchaser’s claim.

10.0. Limited Liability.

DIGIODE™ SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES, REGARDLESS OF THE BASIS OF THE CLAIM OR WHETHER ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR NOT.

Digiode’s liability to Purchaser is limited to Purchaser's direct damages up to an amount not exceeding the price of the Material that has been determined to be nonconforming. In no event shall Digiode™ be liable to you or to any third party for any damages arising in the fulfillment of this order. To the extent permitted by law, neither Digiode™ nor its employees or agents are liable for, and Purchaser is not entitled to, any indirect, special, incidental or consequential damages (e.g., loss of profits or revenue, loss of data, loss of use, rework, manufacturing expense, injury to reputation, or loss of business). Purchaser assumes all liability for, and shall hold Digiode™ harmless against, any and all claims, demands, damages, costs, loss or expense imposed on Purchaser from any source in fulfillment of this order.

Digiode™ shall not be liable for its inability to secure sufficient quantities of any Materials or liable for failure to fulfill its obligations under this Agreement due to causes beyond its reasonable control (e.g., acts of nature, acts or omissions of Purchaser, operational disruptions, man-made or natural disasters, epidemics/pandemics, materials or Material shortages, strikes, political events, embargoes, criminal acts, delays in delivery or transportation by carriers, or inability to obtain labor, materials or Materials through regular sources). Digiode™ hereby disclaims all responsibility for delays of carrier, loss or damage to goods in transit, or any loss after shipment has been received by carrier in good order.

11.0. No Warranty.

Purchaser acknowledges that Digiode™ is an independent distributor of electronic components and is not the manufacturer of the Materials. Digiode™ makes no representation or warranty, express or implied, including any implied warranties of merchantability or fitness for particular use with respect to the Materials, goods and/or services provided. To the extent legally and contractually permitted, Digiode™ will pass through to Purchaser any transferable Material warranties, indemnities, and remedies provided to Digiode™ by the manufacturer. If required by law, Digiode™ warrants that at the time of delivery, Materials will conform to the specifications stated by the manufacturer in its published data sheet for the Materials. All warranty claims for non- conformance to manufacturer’s specifications are valid for up to 12 months after delivery acceptance of the Materials and covers normal use only. There are no warranties for value added services, services bundled with the Materials, or other services provided by Digiode™.

Any applicable warranties will expire after 12 months and shall be voided entirely at any time before 12 months if:

(i) the Material has not been stored, installed, maintained or operated in accordance with accepted industrial practice or any specific instructions provided by the manufacturer;
(ii) the Material has been subjected to any accident, misapplication, environmental contaminant (including ESD), corrosion, damage, debris, improper passivation, neglect, abuse or misuse;
(iii) Purchaser has modified the Material without Digiode’s prior written consent;
(iv) Purchaser has used or repaired the Material after discovery of the defect without Digiode’s prior written consent;
(v) Purchaser refuses to permit Digiode™ to examine the Material and operating data to determine the nature of the defect claimed; or
(vi) Purchaser fails to meet its obligations.

ALL WARRANTIES OR REPRESENTATIONS NOT SPECIFICALLY INCLUDED IN THE TERMS AND CONDITIONS, INCLUDING THOSE WITH RESPECT TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE WHETHER EXPRESSED, IMPLIED, STATUTORY OR ARISING FROM A COURSE OF DEALING, USAGE OF THE TRADE OR OTHERWISE WITH RESPECT TO ANY GOODS OR SERVICES, ARE EXPRESSLY EXCLUDED. PURCHASER’S REMEDIES ARE SPECIFICALLY LIMITED TO THE REPAIR OR REPLACEMENT OF THE DEFECTIVE GOODS, AS APPLICABLE, DURING THE WARRANTY PERIOD, AND ARE EXCLUSIVE OF ALL OTHER REMEDIES. SHOULD THESE REMEDIES BE FOUND INADEQUATE OR TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE FOR ANY REASON WHATSOEVER, PURCHASER AGREES THAT RETURN OF THE AMOUNT PAID BY PURCHASER TO DIGIODE™ UNDER THE CONTRACT SHALL PREVENT THE REMEDIES FROM FAILING OF THEIR ESSENTIAL PURPOSE AND SHALL BE CONSIDERED BY PURCHASER AS A FAIR AND ADEQUATE REMEDY.

Digiode’s pass-through limited warranties are order specific. Purchasing additional parts or Materials from Digiode™ does not extend this limited warranty period for previously covered components. The coverage period for used/refurbished Materials may vary based on the specification sheet and/or sales invoice.

12.0. Default.

If the Purchaser commits any act of default including:

becoming delinquent or defaulting in any payment, or
breaching any of the terms of this Agreement, or
entering into bankruptcy or liquidation (whether compulsory or voluntary), or
having a receiver or manager appointed over the whole or any part of its business or undertaking, or
if distress or execution is levied or threatened upon any of the Purchaser's property,

then in any such case (and without prejudice to any other rights Digiode™ may have), Digiode™ shall be entitled to:

repossess and re-sell goods delivered to the Purchaser and not paid for in full and for that purpose to enter upon the property in which they are situated.
suspend all further deliveries to the Purchaser until the default is made good or to refuse to deliver any further goods to the Purchaser and to re-sell any further goods ordered by the Purchaser whether they are the balance of any order or the whole part of a further order.

The Purchaser shall in any event be liable to make good to us our loss or profit on all such goods and all costs and expenses of repossession, storage, insurance and sale and to pay to us interest as provided above until actual payment.

In the event of the Purchaser's insolvency we shall be entitled (in addition to any lien arising by law) to a general lien on all the Purchaser's goods in our possession (although the same or some of them have been paid for) for any money due in respect of such goods or in respect of any general or particular balance or other money due from the Purchaser to Digiode™, whether under the same or any other order.

13.0. Force Majeure.

Purchaser and Digiode™, shall be identified thenceforth individually, as a “party” and, collectively, as the “parties.” Neither party shall be liable for damages as a result of a delay in delivery due to any causes beyond its control and without its fault or negligence, including without limitations, acts of God, the public enemy, or the government, acts of terrorism or war, riots, fires, floods, unusually severe weather, epidemics, quarantine restrictions, explosion, breakdown of machinery or equipment, plant shutdown, strikes, labor disputes, or freight embargoes. Additionally, neither party will have any liability for failure to perform contractual obligations arising out of civil disturbances or voluntary or involuntary compliance with any law, order regulation, recommendation or request of any governmental authority, inability to obtain materials necessary for manufacture of the Goods, total or partial failure of any of Digiode’s usual means of transportation of the Goods, or for failure to obtain necessary governmental approvals, permits or licenses. If the failure to perform is caused by the default of a subcontractor, and if such default arises: (i) out of causes beyond the control of both Digiode™ and such subcontractor; and (ii) without the fault or negligence of either of them, then Digiode™ shall not be liable for the failure to perform.

14.0. Confidential Information.

Parties shall treat as confidential all information supplied by the other which is not in the public domain, including, without limitation: (i) methods and processes of operation;(ii) identities of employees, customers, suppliers and their personnel and/or their production means and methods, including information developed from site visits as well as Digiode’s inventory volumes, inventory levels, number of SKUs, containers, cross dock orders, and other information concerning its warehousing and operations; (iii) cost and expense information; (iv) Production information; (v) trade secrets; (vi) confidential processes and technology; (vii) pricing information; (viii) computer programs and equipment; (ix) know-how; (x) research; (xi) inventions; (xii) financial statements or other financial information; (xiii) marketing plans and strategies; (ix)samples; and (x) other information concerning Digiode (collectively, the “Confidential Information”). The parties shall: (i) limit use of the Confidential Information only to the performance of the Terms; and (ii) limit the disclosure of the Confidential Information to those employees whose knowledge of such Confidential Information is necessary in the ordinary course of business, unless prior written consent has been granted by the other party to permit other use or disclosure. Each party shall, upon written request after expiration, termination or cancellation of the Agreements, promptly return all documents previously supplied, destroy any and all copies that were reproduced, and send written confirmation to the other party certifying such destruction. Digiode’s remedies for any violation of this section shall include, but are not limited to, injunctive relief.

15.0. Trademark & IP Considerations.

Each Party shall retain all right, title and interest it may have with respect to items acquired or developed before the effective date or independently of this Purchase Order. You shall indemnify and keep Digiode™, its agents, and successors indemnified against all losses or damages arising from any infringement of any patent in respect of any goods concerning this Order. In addition, you agree to fully reimburse all litigation costs, if any, suffered by Digiode™ as a result of any patent suit, claim, or controversy. Any breach of such duty is subject to the normal statutory limitation period.

16.0. Assignments & Subcontracting.

Subcontracting/assigning rights to third parties by Purchaser shall not take place either in whole or in part without the prior written consent of Digiode™, which Digiode™ may grant or deny as per its discretion and violation of same shall entitle Digiode™ to cancel this order in whole or in part and claim damages. No rights or obligations under this Order, including payment or assignment of moneys due, may be subcontracted, assigned or transferred, in whole or in part, without: (i) prior written approval by Digiode™; and (ii) the assignee’s or subcontractor’s Agreement to be bound by this Agreement.

17.0. Severability, Waivers & Remedies.

The invalidity in whole or in part of any condition of this Agreement shall not impact the validity of other conditions. The remedies herein shall be cumulative and additional to any other remedies in law or in equity. No waiver of any provision of this Order shall constitute a continuing waiver of such provision or a waiver of such provision in other instances.

18.0. Forum & Venue.

Unless otherwise required by law, this Agreement shall be construed in accordance with the laws of the state of Texas without application of its conflict of laws provisions. The exclusive venue for any dispute shall be the federal or state courts of Texas. The parties agree that the United Nations Convention for the International Sale of Goods shall not apply.

In the event of a dispute arising in any way out of this Agreement, the parties agree to resolve their dispute solely through binding arbitration in accordance with the then current rules of the American Arbitration Association. This provision applies to any and all claims against any officers, directors, agents, and employees of Digiode™. To the fullest extent permitted by applicable law, no arbitration under this Agreement will be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise.

You may opt out of this dispute resolution procedure by providing notice to Digiode™ no later than 30 calendar days from the date of purchase of the Material. To opt out, you must send notice by e-mail to [email protected], with the subject line: “Arbitration Clause Opt-Out.” You must include in the opt out e-mail (a) your name and address; (b) the date on which the Material was purchased; (c) the Part Number, (d) Manufacturer; and (e) Lot/Date Codes.

19.0 Independent Contractors.

Digiode™ and Purchaser are independent contractors and are not partners, master/servant, principal/agent or parties to any similar legal relationship with respect to the transactions contemplated hereunder or otherwise. No fiduciary, trust or advisor relationship, nor any other relationship imposing vicarious liability, shall exist between the parties and neither party shall have the authority to bind the other party in any manner whatsoever.

20.0. Entire Agreement.

The terms of this Agreement are solely for the benefit of Digiode™, its affiliates, the Indemnitees, and Purchaser and shall not be deemed to confer upon or give any other party any right, claim, cause of action or interest herein. This Agreement, the price, quantity and Material details in Digiode’s invoice represent the entire Agreement and understanding between the parties with respect to the subject matter herein. Any terms and conditions in addition to or in conflict with the terms and conditions of this Agreement, such as other documentation of Purchaser, including any on-line or click-through Agreements, are null and void. There are no understandings, inducements, commitments, conditions, representations or warranties of any kind, whether direct, indirect, collateral, express or implied, oral or written, from either party to the other, other than as contained in this Agreement.

21.0 Miscellaneous.

The captions and section headings set forth in this Agreement are for convenience only and shall not be used in defining or construing any of the terms and conditions herein. No employee, agent, nor representative of Digiode™ has any authority to bind Digiode™ to any term, affirmation, representation, or warranty concerning any Material not set forth herein, and unless a term, affirmation, representation or warranty is specifically included in this Agreement (and is duly signed by an Officer of both Parties), it shall not be enforceable.

No statements or agreements, oral or written, not contained herein will vary or modify the terms hereof. Neither party shall claim any amendment, modification or release of any provisions hereof unless the same is in writing and such writing: (i) specifically refers to this Agreement; (ii) specifically identifies the term amended; and (iii) is signed by a duly authorized officer of Digiode™ and Purchaser.

All notices, consents, communications or transmittals under this Agreement shall be in writing and shall be deemed received on the day of delivery if delivered by internationally or nationally-recognized overnight courier or delivery service, (with confirmation of receipt), or within five (5) business days if mailed by United States certified mail, return receipt, postage prepaid, addressed to the party to whom such notice is given at the address of such party.

Terms & Conditions

Terms and Conditions Agreement