1. Offer and Acceptance

Tenrehte Technologies, Inc. and its subsidiaries (“TENREHTE”) offers to perform certain consulting, design, development, or other services for Buyer in accordance with the terms and conditions set forth herein (“TERMS”). Acceptance of this offer is expressly limited to such TERMS. TENREHTE hereby objects to and rejects any additional or different terms proposed by Buyer, including those contained in Buyer’s purchase order, unless TENREHTE expressly agrees to such terms in writing. Each of TENREHTE and Buyer is sometimes referred to in this contract as a “Party” and collectively as the “Parties.” For purposes of this contract, “Personnel” means collectively TENREHTE or any of its employees, representatives, agents, contractors, or subcontractors.

2. Services and Fees

As an independent contractor and general consultant, TENREHTE agrees to perform for Buyer certain consulting, design, development, or other services, for which the Parties may elect to define a set of deliverables (collectively the "SERVICES") as the parties may from time to time agree and specify in a Professional Services Agreement (“PSA”), a Statement of Work (“SOW”), or Purchase Order (each a "WORK ORDER") incorporating these TERMS by reference. This contact shall become effective, final and binding once the WORK ORDER is executed by both Parties (“Effective Date”).

Unless otherwise indicated in a WORK ORDER, all SERVICES will be provided on a time and materials basis, and each WORK ORDER may contain estimates of the time and materials needed for performing the SERVICES, and associated fees for completion of the SERVICES (“ESTIMATES”). Such ESTIMATES will reflect a reasonable estimate of total fees for the SERVICES and not a fixed price, and TENREHTE will use commercially reasonable efforts to provide the SERVICES within the ESTIMATES specified in any WORK ORDER agreed to by the Parties.

Buyer agrees to pay TENREHTE all fees indicated in the WORK ORDER. All fees paid are non-refundable. Each party agrees to cooperate reasonably and in good faith with the other in the performance of the SERVICES and acknowledges that delays may otherwise result. Any changes to the scope of work under a WORK ORDER shall be made by written change order or amendment to the WORK ORDER signed by an authorized representative of each party prior to implementation of such changes. Buyer acknowledges that such changes to the scope of work under a WORK ORDER may impact: (i) the WORK ORDER schedule, (ii) the WORK ORDER fees charged by TENREHTE, and (iii) other relevant factors.

1. Reimbursement of Expenses.

Buyer agrees to pay TENREHTE its actual out of pocket expenses as reasonably incurred by TENREHTE in furtherance of its performance of the SERVICES, such expenses to include, travel by the TENREHTE to Buyer’s facilities in furtherance of SERVICES, and any design tools, development boards and the like TENREHTE acquires to complete the SERVICES, provided that TENREHTE shall obtain Buyer’s prior written consent for such additional expenses that exceed five thousand dollars ($5,000). TENREHTE agrees to provide Buyer with access to such receipts, ledgers, and other records as may be reasonably appropriate for Buyer or its accountants to verify the amount and nature of any such expenses.

3. Price

TENREHTE’s price in effect at the time TENREHTE receives Buyer’s purchase order shall continue to apply for a term of (3) months. Otherwise TENREHTE shall have the right and Buyer shall have the obligation to renegotiate the price of all SERVICES not yet invoiced, and if an agreement is not reached, TENREHTE shall have the right to terminate this contract without liability.

If the price of fuels, metals, raw materials, equipment or other such costs increases significantly, TENREHTE shall have the right and Buyer shall have the obligation to renegotiate the price of all SERVICES not yet invoiced, and if an agreement is not reached, TENREHTE shall have the right to terminate this contract without liability.

1. Accuracy of Information

To the extent TENREHTE provides SERVICES information, TENREHTE attempts to be as accurate as possible. However, TENREHTE does not warrant the accuracy of SERVICES descriptions, SERVICES price, SERVICES availability or other information on its websites, sales brochures, or other matter as accurate, complete, reliable, current, or error-free. Furthermore, in the event that SERVICES are mistakenly listed at an incorrect price, TENREHTE reserves the right to refuse or cancel any orders placed for such SERVICES, regardless of whether the order has been confirmed or Buyer is charged. If Buyer has already been charged for the purchase and Buyer’s order is cancelled, arrangements will be made to issue a credit to Buyer in the amount of the incorrect price.

4. Title and Delivery

Shipments inside the U.S. shall be delivered FOB TENREHTE’s shipping dock. Shipments outside the U.S. shall be delivered FCA (Incoterms 2000) TENREHTE’s shipping dock. Title and liability for loss or damage shall pass to Buyer upon TENREHTE’s delivery to Buyer’s designated carrier. Any subsequent loss or damage shall not relieve Buyer from its obligations. Buyer shall reimburse TENREHTE for insurance and transportation costs on international shipments and shall be responsible for all import duties, taxes and any other expenses incurred or licenses or clearances required. TENREHTE may deliver SERVICES in installments. Delivery dates are estimates. TENREHTE shall not be liable for any damage, losses or expenses incurred by Buyer if TENREHTE fails to meet the estimated delivery dates.

5. Payment Terms

1. Buyer agrees to pay TENREHTE a down payment of thirty percent (30%) of the total SERVICES fees; such down payment is due in full before any SERVICES are started. SERVICES requiring material expenses may incur a substantially higher down payment.
2. For the balance of the SERVICES fees after down payment, if TENREHTE extends credit to Buyer, payment terms shall be net thirty (30) days after TENREHTE’s invoice. TENREHTE may change or withdraw credit amounts or payment terms at any time for any reason. If the SERVICES are delivered in installments, Buyer shall pay for each installment in accordance with the above payment terms. If Buyer fails to make any payment when due, TENREHTE may suspend or cancel performance under any agreements in which TENREHTE has extended credit to Buyer. TENREHTE’s suspension of performance may result in rescheduling delays. If, in TENREHTE’s judgment, Buyer’s financial condition does not justify the payment terms specified herein, then TENREHTE may terminate this contract unless Buyer immediately pays for all products that have been delivered and pays in advance for all products to be delivered. Termination in accordance with this clause shall not affect TENREHTE’s right to pursue any other available remedies.
3. Notwithstanding anything to the contrary, if Buyer fails to make any payment when due, TENREHTE will add a service charge at the rate of 1.5% per month (18% per year) or the maximum legal rate, whichever is less, to unpaid invoices from the due date thereof. Buyer acknowledges and agrees that if TENREHTE retains a collection agency or attorney to collect unpaid amounts, TENREHTE may invoice Buyer for, and Buyer will pay, all reasonable costs of collection, including without limitation reasonable attorney's fees.
4. Buyer may make a direct bank (“wire”) transfer. Wire transfers must be complete before a Buyer’s order can be released. Wire transfers may incur additional administrative costs to process and service the Buyer’s order. Wire transfers may incur additional time to process and service the Buyer’s order.
5. Notwithstanding anything to the contrary, Buyer’s outside the United States must remit payment in advance using wire transfer. Wire transfers must be complete before a Buyer’s order can be released. Wire transfers may incur additional administrative costs to process and service the Buyer’s order. Wire transfers may incur additional time to process and service the Buyer’s order.
6. Notwithstanding anything to the contrary, remittances will be received by a bank simply as clearing agency. The receiving bank has no authority to determine whether or not the amount remitted constitutes payment in full. Remittances marked to indicate payment in full will be deposited by the bank not with standing such markings and such deposit shall not indicate TENREHTE’s acceptance of the remittance as payment in full unless the remittance actually constitutes payment of all sums owed.

6. Taxes

Prices do not include applicable taxes or duties. Buyer is solely responsible for paying all applicable taxes and duties. TENREHTE will add sales taxes to the sales price where required by applicable law, and Buyer will pay such taxes unless Buyer provides TENREHTE with a duly executed sales tax exemption certificate. If Buyer is required by law to withhold any amount of tax from its payment to TENREHTE, Buyer shall promptly pay such amount to the appropriate tax authority and take all reasonable steps to minimize such withholding tax.

As an independent contractor and general consultant, Personnel are not Buyer employees. Buyer shall not take any action or provide Personnel with any benefits or commitments inconsistent with any of such undertakings by TENREHTE. In particular: (i) Buyer will not withhold FICA (Social Security) from TENREHTE payments; (ii) Buyer will not make state or federal unemployment insurance contributions on behalf of TENREHTE or Personnel; (iii) Buyer will not withhold state and federal income tax from payment to TENREHTE; (iv) Buyer will not make disability insurance contributions on behalf of TENREHTE; and (v) Buyer will not obtain workers’ compensation insurance on behalf of TENREHTE or Personnel.

7. Contingencies

TENREHTE shall not be in breach of this contract and shall not be liable for any non-performance or delay in performance if such non-performance or delay is due to a force majeure event or other circumstances beyond TENREHTE’s reasonable control, including but not limited to, shortages of labor, energy, fuel, machinery or materials, technical or yield failures, war, civil unrest, any government act, law or regulation, including any judicial order or decree, any communication or power failure, labor dispute, natural disaster, fire, flood, earthquake, explosion, terrorist act or Act of God.

8. Representations and Warranties

1. Each Party hereby warrants to the other Party that it possesses the full right, power and authority to enter into this contract.
2. TENREHTE warrants that the SERVICES shall be performed by qualified Personnel in a professional manner conforming to generally accepted industry standards and practices. TENREHTE represents that TENREHTE has the qualifications and ability to perform the SERVICES without the advice, control or supervision of Buyer. TENREHTE shall have sole discretion and control of TENREHTE’s work and the manner in which it is performed.
3. EXCEPT AS EXPRESSLY SET FORTH IN THIS CONTRACT, THE SERVICES TO BE PROVIDED BY TENREHTE UNDER THE WORK ORDER AND ANY OTHER MATERIALS AND INFORMATION PROVIDED BY TENREHTE TO BUYER ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TENREHTE SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. TENREHTE DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS MADE BY PERSONS OTHER THAN TENREHTE. BUYER EXPRESSLY ACKNOWLEDGES THAT ANY OTHER MATERIALS AND INFORMATION PROVIDED BY TENREHTE TO BUYER MAY HAVE DEFECTS OR ERRORS WHICH WILL NOT BE CORRECTED BY TENREHTE, AND HEREBY EXPRESSLY WAIVES ALL WARRANTIES OR CONDITIONS NOT SPECIFICALLY SET FORTH HEREIN.
4. Safety-Critical, Military and Automotive Applications

TENREHTE SERVICES are not authorized for use in safety-critical applications (such as life support) where a failure of the TENREHTE SERVICES would reasonably be expected to cause severe personal injury or death, unless officers of the parties have executed an agreement specifically governing such use. Buyer shall fully indemnify TENREHTE and its representatives against any damages arising out of the unauthorized use of TENREHTE SERVICES in such safety-critical applications.

TENREHTE SERVICES are neither designed nor intended for use in military/aerospace applications or environments unless the TENREHTE SERVICES are specifically designated by TENREHTE as military-grade or certified for aerospace operation. Only SERVICES designated by TENREHTE as military-grade meet military specifications. Buyer acknowledges and agrees that any such use of TENREHTE SERVICES which TENREHTE has not designated as military-grade is solely at the Buyer’s risk, and that Buyer is solely responsible for compliance with all legal and regulatory requirements in connection with such use.

TENREHTE SERVICES are neither designed nor intended for use in automotive applications or environments unless the specific TENREHTE SERVICES are designated by TENREHTE as compliant with ISO/TS 16949 requirements. In any case of such use of non-designated SERVICES, TENREHTE will not be responsible for any failure to meet ISO/TS 16949 requirements.

Buyer represents that it has all necessary expertise in the safety and regulatory ramifications of its applications, and Buyer acknowledges and agrees that it is solely responsible for compliance with all legal, regulatory and safety-related requirements concerning its products and any use of TENREHTE SERVICES in Buyer’s applications, notwithstanding any applications-related information or support that may be provided by TENREHTE.

5. Notwithstanding anything to the contrary, SERVICES resulting in the release of (i) SOFTWARE PRODUCTS, (ii) EXPERIMENTAL PRODUCTS, (iii) PROTOTYPE PRODUCTS, (iv) DEVELOPMENT PRODUCTS, and (v) PRE-PRODUCTION PRODUCTS ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.” TENREHTE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING SUCH SOFTWARE PRODUCTS AND EXPERIMENTAL PRODUCTS AND PROTOTYPE PRODUCTS AND DEVELOPMENT PRODUCTS AND PRE-PRODUCTION PRODUCTS, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

9. Limitations and Damages Disclaimer

1. General Limitations

IN NO EVENT SHALL TENREHTE BE LIABLE FOR ANY SPECIAL, COLLATERAL, INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS CONTRACT OR THE USE OF THE GOODS PROVIDED HEREUNDER, REGARDLESS OF WHETHER TENREHTE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCLUDED DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, COST OF REMOVAL OR REINSTALLATION, ANCILLARY COSTS TO THE PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, RETESTING, OUTSIDE COMPUTER TIME, LABOR COSTS, LOSS OF GOODWILL, LOSS OF PROFITS, LOSS OF SAVINGS, LOSS OF USE, LOSS OF DATA, OR BUSINESS INTERRUPTION. NO CLAIM, SUIT OR ACTION SHALL BE BROUGHT AGAINST TENREHTE MORE THAN ONE YEAR AFTER THE RELATED CAUSE OF ACTION HAS OCCURRED.

2. Specific Limitations

IN NO EVENT SHALL TENREHTE’S AGGREGATE LIABILITY FROM ANY WARRANTY, INDEMNITY, OR OTHER OBLIGATION ARISING OUT OF OR IN CONNECTION WITH THIS CONTRACT, OR ANY USE OF ANY TENREHTE PRODUCT PROVIDED HEREUNDER, EXCEED THE TOTAL FEES PAID TO TENREHTE FOR THE PARTICULAR SERVICES SOLD UNDER THIS CONTRACT WITH RESPECT TO WHICH LOSSES OR DAMAGES ARE CLAIMED, OR THE SUM OF $10,000.00, WHICHEVER IS LESS. THE EXISTENCE OF MORE THAN ONE CLAIM AGAINST THE PARTICULAR WORK ORDER SOLD TO BUYER UNDER THIS CONTRACT SHALL NOT ENLARGE OR EXTEND THIS LIMIT.

3. BUYER UNDERSTANDS AND AGREES THAT THE FOREGOING LIABILITY LIMITATIONS ARE ESSENTIAL ELEMENTS OF THIS CONTRACT AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THE MATERIAL AND ECONOMIC TERMS OF THIS CONTRACT WOULD BE SUBSTANTIALLY DIFFERENT.

10. CONFIDENTIALITY AND NON-DISCLOSURE

1. As used in this Section 10.1, the term “CONFIDENTIAL INFORMATION” shall mean any information disclosed by one Party to the other pursuant to this contract which is in written, graphic, machine readable or other tangible form and is marked “Confidential”, “Proprietary” or in some other manner to indicate its confidential nature. CONFIDENTIAL INFORMATION may also include oral information disclosed by one Party to the other pursuant to this contract or the WORK ORDER, provided that such information is designated as confidential at the time of disclosure and is reduced to writing by the disclosing Party within a reasonable time (not to exceed thirty (30) days) after its oral disclosure, and such writing is marked in a manner to indicate its confidential nature and delivered to the receiving Party. Notwithstanding the foregoing designation requirements, Intellectual Property identified in the WORK ORDER as TENREHTE Intellectual Property shall be deemed to be CONFIDENTIAL INFORMATION of TENREHTE, and Intellectual Property identified in the WORK ORDER as Buyer Intellectual Property shall be deemed CONFIDENTIAL INFORMATION of Buyer. The confidentiality obligations of this Contract shall be in addition to any other confidentiality obligations between the Parties.
2. Each Party shall treat as confidential all CONFIDENTIAL INFORMATION of the other Party, shall not use such CONFIDENTIAL INFORMATION except as set forth herein, and shall not disclose such CONFIDENTIAL INFORMATION to any third party, except as expressly permitted in this Contract. Without limiting the foregoing, each of the Parties shall use at least the same degree of care which it uses to prevent the disclosure of its own CONFIDENTIAL INFORMATION of like importance to prevent the disclosure of CONFIDENTIAL INFORMATION disclosed to it by the other Party under this Contract, provided, however, that in no event shall such degree of care be less than reasonable in light of general industry practice.
3. Notwithstanding the foregoing, neither Party shall have liability to the other with regard to any CONFIDENTIAL INFORMATION of the other which: (i) was in the public domain at the time it was disclosed or becomes in the public domain through no fault of the receiver (CONFIDENTIAL INFORMATION shall not be deemed to be in the public domain merely because any part of the CONFIDENTIAL INFORMATION is embodied in general disclosures or because individual features, components or combinations thereof are now or become known to the public); (ii) was known to the receiver, without restriction, at the time of disclosure as shown by the files of the receiver in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the discloser; (iv) was independently developed by the receiver without any use of the CONFIDENTIAL INFORMATION; (v) becomes known to the receiver, without restriction, from a source other than the discloser without breach of this Contract by the receiver; or (vi) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided, however, that the receiver shall provide prompt notice thereof to enable the discloser to seek a protective order to otherwise prevent such disclosure.
4. Each Party shall use all reasonable efforts, including, but not limited to, the execution of proprietary non-disclosure agreements with employees and consultants, to enforce compliance with the provisions of this Section 10 by its directors, officers, employees, and any third party having access to the other Party’s CONFIDENTIAL INFORMATION.
5. Each Party agrees to notify the other promptly in writing of the existence of any circumstances surrounding unauthorized access, disclosure, distribution, possession, alteration, transfer, reproduction or use of the other Party’s CONFIDENTIAL INFORMATION or any portions thereof.

11. Intellectual Property Ownership

1. For purposes of this contract the following terms shall have the meanings set forth below:

1. “Buyer Technology” means the Buyer technology provided to TENREHTE hereunder and identified in the WORK ORDER, including, without limitation, the Other Developments.
2. “Intellectual Property” means the following forms of intellectual property rights owned worldwide by a Party or under which such Party has the right to grant licenses to the other Party of the scope granted herein without the payment of additional consideration: (i) all right, title, and interest in all patent and applications for patent, including any reissue, division, continuation, or continuation-in-part applications throughout the world now or hereafter filed; (ii) all right, title, and interest in all copyrights and all other literary property and author rights; (iii) all right, title, and interest in all mask works; (iv) all right, title, and interest in all trade secrets, and all trade secret rights arising under the common law, state law, federal law and laws of foreign countries; and (v) all right, title, and interest in all know-how and show-how, whether or not protectable by patent, copyright, mask work registration, or trade secret.
3. “Other Developments” means any work product, including, without limitation, any idea, invention, design, concept, technique, or discovery made by the Parties other than the TENREHTE Developments, whether done by one Party or jointly by the Parties, in connection with the performance of the SERVICES hereunder, including, without limitation, any modifications or enhancements of the Buyer Technology.
4. “TENREHTE Developments” means any work product, including, without limitation, any idea, invention, design, concept, technique, or discovery made by the Parties, whether done by one Party or jointly by the Parties, in connection with the performance of the SERVICES hereunder, relating to the TENREHTE Technology, including, without limitation, any modification or enhancement of the TENREHTE Technology.
5. “TENREHTE Technology” means all of TENREHTE’s inventions (whether or not patentable), including, without limitation, any idea, invention, design, concept, technique, or discovery made by TENREHTE, TENREHTE Intellectual Property licensed to Buyer under separate agreement, and the TENREHTE Developments.

2. TENREHTE Technology and TENREHTE Developments

Buyer acknowledges that TENREHTE owns and shall retain all right, title, and interest (including, without limitation any Intellectual Property) in and to the TENREHTE Technology. Each TENREHTE Development shall be the property of TENREHTE; Buyer agrees to assign and hereby assigns to TENREHTE all right, title, and interest (including, without limitation, any Intellectual Property) in and to each TENREHTE Development. Except as expressly set forth herein, no license or other right is granted, by implication, estoppel or otherwise, to Buyer, under any Intellectual Property rights in and to the TENREHTE Technology, and the use of the TENREHTE Technology by Buyer shall be governed by the terms and conditions of the separate license agreement(s) between the Parties.

3. Buyer Technology and Other Developments

Unless otherwise stipulated in a WORK ORDER or other agreement between the Parties, TENREHTE acknowledges that Buyer owns and shall retain all right, title, and interest (including, without limitation, any Intellectual Property) in and to the Buyer Technology. As between TENREHTE and Buyer, the Other Developments shall be considered to be a “Work for Hire” made by TENREHTE for Buyer, and Buyer shall have all right, title, and interest (including, without limitation, any Intellectual Property) in and to each of the Other Developments. The ownership rights to the Other Developments provided under this section are subject to payment in full by Buyer to TENREHTE of all fees and expenses due hereunder for the SERVICES. Except as expressly set forth herein, no license or other right is granted, by implication, estoppel or otherwise, to TENREHTE, under any Intellectual Property rights in and to the Buyer Technology, except the right to use the Buyer Technology in the manner necessary to complete the SERVICES hereunder.

1. In the event of any default by Buyer, Buyer acknowledges and agrees that the Other Developments are not a “Work for Hire”, and all Proprietary Rights embodied in the Other Developments shall be owned exclusively by TENREHTE. To the extent that Buyer provides any feedback or otherwise contributes to the Other Developments, Buyer hereby irrevocably assigns to TENREHTE all of Buyer's right, title, and interest in and to the Other Developments, including, without limitation, all rights in and to any inventions, designs and Proprietary Rights embodied in the Other Developments or developed in the course of TENREHTE's creation of the Other Developments. Buyer will execute any documents in connection with such assignment that TENREHTE may reasonably request.

4. Third-Party Interests

Buyer’s interest in, and obligations with respect to, any items to be obtained from third party vendors, whether or not obtained with the assistance of TENREHTE, shall be determined in accordance with the agreements and policies of such vendors.

12. Term, Cancellations and Rescheduling

This contract will commence on the Effective Date and will remain effective for as long as any WORK ORDER is in effect among the Parties, unless terminated earlier in accordance with the terms of this Section 12.

Buyer or TENREHTE may cancel this contract for convenience upon written notice. In the event of cancellation by Buyer or TENREHTE for convenience, unless otherwise advised by Buyer, TENREHTE shall cease work immediately after receiving notice from Buyer.

Any cancellation or rescheduling of SERVICES by Buyer may result in a charge to Buyer. Such charge, if any, shall be reasonably determined by TENREHTE based on factors such as whether TENREHTE acquired or allocated particular Personnel, supplies or equipment to meet Buyer’s order and such other factors as reasonably determined by TENREHTE.

13. Non-Solicitation of Personnel

During the term of this contract and for a period of one (1) year thereafter, Buyer will not solicit for hire or engagement, or cause others to solicit for hire or engagement, directly or indirectly, as an employee or independent contractor, any Personnel involved in the performance of SERVICES under this contract.

14. Non-waiver of Default

In the event of any default by Buyer, TENREHTE may cease work immediately and suspend its obligations to perform the SERVICES. If TENREHTE elects to continue the SERVICES, TENREHTE’s action shall not constitute a waiver of any such default or affect TENREHTE’s legal remedies for any such default.

15. Governing Law

This contract shall be governed by and interpreted in accordance with the laws of the State of New York, without reference to conflict-of-laws principles. If for any reason a court of competent jurisdiction finds any provision of this contract to be unenforceable, that provision will be enforced to the maximum extent possible to effectuate the intent of the parties, and the remainder of this contract will continue in full force and effect. This contract shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, or by the Uniform Computer Information Transactions Act (UCITA). Buyer agrees that non-exclusive jurisdiction for any dispute arising out of or relating to this contract lies within courts located in the State of New York and consents to venue in Monroe County, New York. Notwithstanding the foregoing, any judgment may be enforced in any United States or foreign court, and TENREHTE may seek injunctive relief in any United States or foreign court.

1. Dispute Resolution

The parties hereby agree that all disputes and differences arising from the execution of, or in connection with this contract shall be settled through friendly consultations by both parties. To this effect, they shall consult and negotiate with each other, in good faith and understanding of their mutual interests, to reach a just and equitable solution satisfactory to both parties. If the parties do not reach such solution within a period of thirty days after receipt of a notice from one party to the other requesting mediation, or such further period the parties shall agree to in writing, then the disputes or differences shall be settled in accordance with the arbitration provisions hereunder.

Any controversy or claim arising out of or relating to this contract, or the breach thereof, that was not settled after mediation, shall be determined by binding arbitration administered by the American Arbitration Association in accordance with its International Arbitration Rules.

There shall be limited discovery prior to the arbitration hearing as follows: (a) exchange of witness lists and copies of documentary evidence and documents relating to or arising out of the issues to be arbitrated, (b) depositions of all party witnesses and (c) such other depositions as may be allowed by the arbitrator upon a showing of good cause. Depositions shall be conducted in accordance with the New York Code of Civil Procedure, the arbitrator shall be required to provide in writing to the parties the basis for the award or order of such arbitrator, and a court reporter shall record all hearings, with such record constituting the official transcript of such proceedings.

The number of arbitrators shall be one. The place of arbitration shall be in Rochester, New York, USA. The arbitration shall be held, and the award shall be rendered, in English.

16. Export Control

1. Buyer agrees that unless prior authorization is obtained from the U.S. Department of Commerce, neither Buyer nor its subsidiaries shall export, re-export, or release, directly or indirectly, any technology, software, or software source code (as defined in Part 772 of the Export Administration Regulations of the U.S. Department of Commerce (“EAR”)), received from TENREHTE, or export, re-export, or release, directly or indirectly, any direct product of such technology, software, or software source code (as defined in Part 734 of the EAR), to any destination or country to which the export, re-export or release of the technology, software, software source code, or direct product is prohibited by the EAR. Buyer furnishes the assurances provided herein to TENREHTE in compliance with Part 740 (Technology and Software Under Restriction) of the EAR.
2. Buyer further agrees to obtain any necessary export license or other documentation prior to the exportation or re-exportation of any product, technical data, software or software source code acquired from TENREHTE under this contract or any direct product of such technical data, software or software source code. Accordingly, Buyer shall not sell, export, re-export, transfer, divert or otherwise dispose of any such product, technical data, software or software source code directly or indirectly to any person, firm, entity, country or countries prohibited by US or applicable non-US laws. Further, Buyer shall give notice of the need to comply with such laws and regulations to any person, firm or entity which it has reason to believe is obtaining any such product, technical data, software or software source code from Buyer with the intention of exportation. Each party shall secure, at its own expense, such licenses and export and import documents as are necessary for each respective party to fulfill its obligations under this contract. If government approvals cannot be obtained, TENREHTE may terminate, cancel or otherwise be excused from performing any obligations it may have under this contract.
3. Any product export classification made by TENREHTE shall be for TENREHTE’s internal use only and shall not be construed as a representation or warranty regarding the proper export classification for such product or whether an export license or other documentation is required for the exportation of such product. This Section 14 shall survive termination of this contract.

17. U.S. Government Contracts

If the products are to be used in a U.S. Government contract or subcontract, those mandatory clauses, except as noted below, of the applicable U.S. Government procurement regulations shall be incorporated by reference. Unless otherwise agreed upon in writing, certified cost or pricing data will not be provided and Cost Accounting Standards, Defective Pricing, and Audit requirements will not apply.

18. Assignment

This contract shall not be assignable by Buyer without TENREHTE’s prior written consent. Any unauthorized assignment shall be null and void.

19. Restrictions and Notices:

1. Notwithstanding anything to the contrary, (i) PRE-RELEASE PRODUCTS, (ii) EVALUATION PRODUCTS, (iii) EXPERIMENTAL PRODUCTS, (iv) PROTOTYPE PRODUCTS, (v) DEVELOPMENT PRODUCTS, and (vi) PRE-PRODUCTION PRODUCTS (such items together as the “VALIDATION PRODUCTS”) are provided FOR ENGINEERING DEVELOPMENT, DEMONSTRATION, AND/OR EVALUATION PURPOSES ONLY.
2. Buyer acknowledges and agrees to all the terms of the additional information and warnings from TENREHTE provided with the VALIDATION PRODUCTS received by Buyer.
3. Buyer acknowledges and agrees to all the terms of the additional product labels TENREHTE attached to the VALIDATION PRODUCTS received by Buyer.
4. Notwithstanding anything to the contrary, VALIDATION PRODUCTS are provided prior to compliance testing to safety, immunity, or emissions requirements and/or standards set forth by local governing bodies and are made available solely to allow the Buyer to determine whether such items would be further purchased if offered at a future date by TENREHTE as a finished product. Among other things, Buyer will be responsible to take whatever measures may be required to correct any interference with radio communications, at its own expense, if such measures are necessary.
5. Buyer assumes all responsibility and liability for proper and safe handling of the VALIDATION PRODUCTS. Further the Buyer is responsible for ensuring that any contacts or interfaces between such items and any human body are designed to be safe and to avoid the risk of electrical shock. Buyer shall only assign technically qualified experts who are familiar with the dangers and application risks associated with handling electrical components, subsystems and systems to use the VALIDATION PRODUCTS, and that such use takes place solely in a controlled environment.
6. Notwithstanding anything to the contrary, VALIDATION PRODUCTS are Non-Cancelable, Non-Returnable ("NCNR"). Unless otherwise authorized by TENREHTE, all VALIDATION PRODUCTS are Non-Cancellable once the Buyer’s order has been accepted by TENREHTE. Excluding VALIDATION PRODUCTS returned for warranty service, unless otherwise authorized by TENREHTE all VALIDATION PRODUCTS are Non-Returnable, and TENREHTE has no obligation to accept the return of any of any VALIDATION PRODUCTS for whatever reason.

20. Entire Agreement

This contract constitutes the entire agreement between the parties relating to the sale of the SERVICES and supersedes all previous communications, representations, or agreements, either oral or written, with respect to the subject matter hereof. No prior representations or statements relating to the sale of the SERVICES made by any TENREHTE representative, which are not stated herein, shall be binding on TENREHTE. No addition to or modification of any provision of this contract shall be binding upon TENREHTE unless made in writing and signed by a duly authorized TENREHTE representative. No course of dealing or trade usage or course of performance shall be relevant to explain or supplement any term in this contract. These terms and conditions shall prevail notwithstanding any different, conflicting or additional terms and conditions that may appear on any purchase order or other writing not expressly incorporated herein, including but not limited to requirements, specifications, data sheets, application notes and purchase order acknowledgements. The section headings contained in this contract are for reference purposes only and shall not affect in any way the meaning or interpretation of this contract.

20 January 2020