Terms and Conditions

TERMS AND CONDITIONS FOR WEB-BASED SALE OF STANDARD PRODUCTS

1. DEFINITIONS.

“Agreement” means these Terms and Conditions for Commercial Sale of Standard Products through online orders, together with all associated Purchase Orders and other addenda, documents and materials incorporated herein by reference. “IP Rights” means all patents (including originals, divisions, continuations, continuations-in-part, extensions or reissues), design rights copyrights, database rights, topography rights, mask work rights, applications to register any such rights, trade secrets, rights in unpatented know-how, rights of confidence and any other intellectual or industrial property rights of any nature whatsoever in any part of the world. “Products” means the products to be furnished by Triad Semiconductor, Inc. (“Triad”) to Buyer under an online Purchase Order. “Purchase Order” means a valid order issued by Buyer to order Products from Triad. “Specifications” means the functional, technical and design specifications for the Products as set forth in the applicable Product Datasheet. Datasheets for standard products are available at www.triadsemi.com. “Triad’s Agent” means an approved partner selected by Triad to manage shipment of product to the Buyer on Triad’s behalf.

2. SCOPE OF AGREEMENT.

These Terms and Conditions will apply to all sales and purchases of Products, which shall be made pursuant to Purchase Orders issued by Buyer to Triad. These Terms and Conditions shall exclusively govern all such purchases and Purchase Orders, notwithstanding any additional or different terms and conditions contained in any Purchase Order actually submitted by Buyer or any acknowledgment returned by Triad. Triad reserves the right to make corrections, enhancements, improvements and other changes to its Products and to discontinue any product. Buyers should obtain the latest relevant information before placing orders. All Products are sold subject to Triad’s terms and conditions of sale effective at the time of order acknowledgment.

3. ORDERING, PACKING, AND SHIPMENT.

Triad reserves the right to reject any order prior to shipment for any reason. Triad will notify buyer if order is rejected. All Products shall be prepared for shipment in a manner that: (i) follows good commercial practice; (ii) is acceptable to common carriers for shipment; and (iii) is adequate to ensure safe arrival.

All Products shall be shipped by a carrier and method selected by Triad. Title and Risk of loss shall pass to Buyer when Product is picked up by the carrier at Triad’s or Triad’s Agent’s facility.

All Products will be scheduled for shipment in accordance with Triad’s applicable shipment sequence and Triad will confirm the expected shipment schedule to Buyer at the time of order. Triad makes commercially reasonable efforts to deliver Products in accordance with the confirmed delivery date. Under no circumstances shall Triad be liable to Buyer for any delay in shipment or in delivery.

Buyer will have a reasonable time to conduct reasonable inspections and tests of all Products, which inspection time will not exceed ten business days following the applicable date of delivery.

Buyer may contact Triad about any Products that do not substantially conform to the Specifications by providing written notice to Triad, which notice shall contain sufficient detail of the failure to enable adequate response. In the event that Buyer rejects any Products, Triad will not be deemed to have breached this Agreement if Triad repairs or replaces, in Triad’s sole option and at Triad’s sole expense, the rejected Products within 90 days after the original delivery date for such Products.

No Products shall be returned to Triad or Triad’s Agent for any reason absent issuance by Triad of a Return Material Authorization (RMA). The RMA shall specify the RMA number, the terms and conditions upon which returns may be made, and Triad’s preferred carrier. The RMA number must be marked on the outer shipping carton when Products are returned. Returns made without obtaining prior authorization or without the RMA number properly marked on the outer shipping carton will be returned to sender at Buyer’s expense.

4. RESCHEDULING AND CANCELLATION.

Except as specifically agreed to in writing by both Triad and Buyer, once a Purchase Order is confirmed by Triad, such Purchase Order may not be cancelled nor Product returned for credit or refund, in whole or in part, by Buyer.

5. PRICING.

The pricing for Products will be set forth at the time the order is placed. Each party is responsible for its own respective income taxes or taxes based upon gross revenues, including but not limited to business and occupation taxes. Except as otherwise set forth in this Section 5, each party shall be solely responsible for its own expenses incurred as a result of this Agreement.

6. INVOICING AND PAYMENT.

Payment for all Products purchased by Buyer must be made at time of order, and verified prior to confirmation of the order by Triad.

7. FORCE MAJEURE.

Neither party shall be responsible for its failure to perform due to causes beyond its reasonable control, such as acts of God, fire, theft, war, riot, embargoes, acts of terrorism, unavailability of materials, strikes or acts of civil or military authorities. In the event of delay due to any such cause, the time for delivery and performance shall be extended for a period of time equal to the duration of such delay and Buyer shall not be entitled to refuse delivery or otherwise be relieved of any obligations as a result of the delay. If, as a result of any such cause, any scheduled performance is delayed for a period in excess of 120 days, Triad and Buyer shall have the right by written notice to the other to cancel the order for the Products and services subject to the delayed delivery without further liability of any kind.

8. WARRANTY AND LIMITATIONS OF LIABILITY.

Triad represents and warrants that the Products will substantially conform to the Specifications for a period of 90 days after the date of delivery to Buyer. TRIAD’S EXPRESS WARRANTY SPECIFIED IN THE PRECEDING SENTENCE CONSTITUTES TRIAD’S SOLE WARRANTY WITH RESPECT TO THE PRODUCTS. TRIAD DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. BUYER’S USE OF THE PRODUCTS FOR ANY PURPOSE AND IN ANY APPLICATION IS AT BUYER’S SOLE RISK. If Triad breaches the express warranty set forth herein and Buyer delivers prompt written notice to Triad describing such breach with particularity, then Triad will, at Triad’s sole option and expense, provide one of the following remedies to Buyer within 90 days of receipt of Buyer’s notice: (1) repair the nonconforming Products; (2) replace the nonconforming Products; or (3) refund the purchase price paid for the nonconforming Products. THE REMEDIES SPECIFIED IN THE PRECEDING SENTENCE CONSTITUTE BUYER’S SOLE REMEDIES FOR ANY BREACH OF WARRANTY BY TRIAD.

PRODUCTS FURNISHED BY TRIAD TO BUYER HEREUNDER ARE NOT DESIGNED OR INTENDED FOR USE IN LIFE SUPPORT EQUIPMENT, FOR THE PURPOSE OF RESCUE OF PERSONS, OR IN OTHER APPLICATIONS IN WHICH MALFUNCTION OF THE PRODUCT OR APPLICATION CAN REASONABLY BE EXPECTED TO RESULT IN PERSONAL INJURY OR DEATH. BUYER, ITS SUBCONTRACTORS, AND ITS CUSTOMERS USE, MARKET, AND SELL DEVICES FOR USE IN SUCH LIFE SUPPORT OR OTHER APPLICATIONS AT THEIR OWN SOLE RISK AND EXPENSE AND BUYER AGREES TO INDEMNIFY AND HOLD TRIAD HARMLESS FROM ANY AND ALL DAMAGES, COSTS OR EXPENSES ARISING FROM ANY CLAIM OR ACTION OF ANY THIRD PARTY BASED ON THE ACTUAL OR ALLEGED FAILURE OF A PRODUCT TO PERFORM IN SUCH APPLICATIONS. TRIAD SHALL NOT BE LIABLE TO BUYER, ITS CUSTOMERS OR ANY OTHER THIRD PARTY, IN CONTRACT, TORT, INDEMNITY, OR OTHERWISE, FOR ANY LIABILITY, LOSS, DAMAGE, COST, OR EXPENSE ARISING OUT OF ANY CLAIM FOR PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE RELATED TO THE PRODUCTS. IN NO EVENT SHALL TRIAD BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST OPPORTUNITIES, OR INTERRUPTION OF BUSINESS) OR PUNITIVE DAMAGES DUE TO ANY CAUSE WHATSOEVER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF WARNED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE AND EVEN IF ANY OF THE LIMITED REMEDIES AVAILABLE WOULD FAIL THEIR ESSENTIAL PURPOSE. IN NO EVENT SHALL THE TOTAL LIABILITY OF TRIAD TO BUYER OR ANY OTHER PERSON FROM ANY LAWSUIT, CLAIM, WARRANTY, OR OTHER DISPUTED MATTER UNDER THIS AGREEMENT EXCEED THE AGGREGATE AMOUNT PAID TO TRIAD BY BUYER UNDER THIS AGREEMENT.

9. INTELLECTUAL PROPERTY.

Triad grants Buyer a personal, nontransferable, non-sublicensable, non-exclusive, royalty free license to use the Product, including all IP Rights of Triad therein, solely for use in Buyer’s products. Buyer may not copy, reverse engineer, duplicate or in any other way use the Product except for its intended purpose.

10. COMPLIANCE WITH LEGAL REQUIREMENTS.

Each party shall comply with all national, state and local laws and regulations governing the manufacture, transportation, import, export, and sale of Products, including, in the United States, without limitation, US Export Control laws, including Department of Commerce and US Export Administration regulations. Products may contain technical data that is controlled under either (i) the United States Munitions List and, as such, subject to the International Traffic in Arms Regulations (ITAR, 22 C.F.R. §§120-130); or (ii) the Commerce Control List, and as such, subject of the Export Administration Regulations (EAR, 15 C.F.R. §§730- 774). Accordingly, each party represents and warrants that it shall not transfer its own or the other party’s technical data directly or indirectly to any individual, employee, company or other entity without first complying with all requirements of the ITAR, the EAR and any other applicable export restrictions, including the requirement for obtaining any export license, if applicable. Technical data that is controlled by the ITAR, EAR, or other applicable export restrictions shall not be released to foreign nationals, including foreign national employees, whether in the United States or abroad, without first obtaining the appropriate export license or other approval from the US government and otherwise complying with all applicable governmental requirements, as they may be amended from time to time.

11. MERGER, MODIFICATION, WAIVER, AND REMEDIES.

This Agreement contains the entire understanding between Buyer and Triad with respect to the subject matter hereof and merges and supersedes all prior and contemporaneous agreements, dealings, and negotiations. No modification, alteration, or amendment shall be effective unless made in writing, dated and signed by duly authorized representatives of both parties. No waiver of any breach hereof shall be held to be a waiver of any other or subsequent breach. Each party’s rights and remedies herein are in addition to any other rights and remedies provided by law or in equity. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such determination shall not affect the validity of the remaining provisions.

12. ASSIGNMENT.

Neither party may assign any rights in nor delegate any obligations under this Agreement without the written consent of the other. For purposes of this Section 12, the acquisition, merger, consolidation, or change in control of a party or any assignment by operation of law shall not be deemed an assignment that requires the other party’s written consent. Nothing in this Section 12 will in any way limit Triad’s right to use third party manufacturers and foundries of Triad’s choosing to fabricate the Products.

13. APPLICABLE LAW.

This Agreement is to be construed and interpreted according to the laws of the State of North Carolina, excluding its conflict of laws provisions. The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

14. SPECIFIC PERFORMANCE.

Each party agrees that its failure to perform certain obligations hereunder would cause irreparable damage to the other party, and that monetary damages would not provide an adequate remedy in such event. Accordingly, the parties agree that, in addition to any other remedy to which the non-breaching party may be entitled, at law or in equity, the non-breaching party shall be entitled to injunctive relief to prevent breaches of this Agreement, and an order of specific performance to compel performance of such obligations in any action instituted in any court of the United States or any state thereof having subject matter jurisdiction.

15. NOTICES.

All notices to either party regarding this Agreement must be in writing given by either hand delivery, overnight courier, first class mail, electronic mail, or facsimile, properly addressed and all fees and postage prepaid. All such notices will be deemed to be sufficiently made as follows: (i) on the date given, if given by hand delivery, electronic mail, or facsimile, provided, however, that any notice given by electronic mail or facsimile must be confirmed in writing and mailed within ten days to the other party by first class mail; and (ii) on the date after being deposited with overnight courier or U.S. mail, if given by overnight courier or first class mail.

16. DISPUTE RESOLUTION.

All disputes arising directly under the express terms of this Agreement or the grounds for termination thereof shall be resolved as follows: The senior management of both parties shall meet to attempt to resolve such disputes. If the disputes cannot be resolved by the senior management, either party may make a written demand for formal dispute resolution through arbitration and specify therein the scope of the dispute. Any controversy or dispute arising under this Agreement shall be referred to and finally settled by arbitration in the City of Winston-Salem, North Carolina, USA, under the auspices of, and conducted in accordance with, the rules of the American Arbitration Association. All arbitration proceedings shall be before a board of three arbitrators who are knowledgeable about goods substantially similar to the Products and each party shall select one arbitrator and the selected arbitrators shall select the third arbitrator. The arbitration proceedings shall be conducted in the English language and any award shall be in United States dollars. The cost of the third arbitrator shall be divided equally between the parties and each party shall pay the costs of the arbitrator selected by it. Any award of the arbitrators shall be final and conclusive on the parties to this Agreement, and judgment upon such award may be entered and enforced in any court having jurisdiction thereof. With the exception of an action brought to enforce the terms of a previous arbitration award, arbitration shall be the sole and exclusive method of resolving disputes between the parties in connection with this Agreement.

TERMS AND CONDITIONS FOR COMMERCIAL SALE OF CUSTOM PRODUCTS

1. DEFINITIONS.

“Agreement” means these Terms and Conditions for Commercial Sale, together with all associated Purchase Orders and other addenda, documents and materials incorporated herein by reference.

“Delivery Date” means, with respect to any given Products ordered pursuant to an accepted Purchase Order, the date that is the later of (1) the delivery date for delivery to Buyer that is specified in the applicable accepted Purchase Order; and (2) the date that is determined by adding the Standard Lead Time for such Products to the date the applicable Purchase Order is accepted by Triad Semiconductor, Inc. (“Triad”).

“IP Rights” means all patents (including originals, divisions, continuations, continuations-in-part, extensions or reissues), design rights copyrights, database rights, topography rights, mask work rights, applications to register any such rights, trade secrets, rights in unpatented know-how, rights of confidence and any other intellectual or industrial property rights of any nature whatsoever in any part of the world.

“Products” means the products to be furnished by Triad to authorized Buyer under a Purchase Order.

“Purchase Order” means a document or other similar request issued by Buyer to order Products from Triad.

“Specifications” means the functional, technical and design specifications for the Products as are mutually agreed to by the parties, which shall be set forth in the applicable Purchaser Order or Addendum A.

“Standard Lead Time” means the amount of time in advance of the Delivery Date required for the processing of a Purchase Order and the production and delivery of the Products. The Standard Lead Time for each Product is 18 to 20 weeks; provided, that the Standard Lead Time may be adjusted from time to time by Triad upon notice to Buyer based on changes in delivery commitments from third party foundries, package providers, or test facilities. “Triad’s Agent” means an approved partner selected by Triad to manage shipment of product to the Buyer on Triad’s behalf.

2. SCOPE OF AGREEMENT.

These Terms and Conditions will apply to all sales and purchases of Products in commercial quantities, which shall be made pursuant to Purchase Orders issued from time to time by Buyer to Triad. These Terms and Conditions shall exclusively govern all such purchases and Purchase Orders, notwithstanding any additional or different terms and conditions contained in any Purchase Order actually submitted by Buyer or any acknowledgment returned by Triad. To be binding upon Triad and Buyer, additional or different terms from those set forth in these Terms and Conditions must be specified in Addendum A hereto. Any change in the Products or Specifications shall be in writing and mutually agreed to by the parties. If either party finds any error, discrepancy, conflict or omission in the Specifications, or determines that the Specifications need to be revised, then such party shall notify the other party in writing of such circumstance and the parties shall work together in good faith to revise the Products or the Specifications as necessary in order to resolve the same.

3. ORDERING, PACKING, AND SHIPMENT.

A Purchase Order will become binding upon Buyer and Triad upon Triad’s dispatch of written confirmation of its acceptance of such Purchase Order. All Products shall be prepared for shipment in a manner that: (i) follows good commercial practice; (ii) is acceptable to common carriers for shipment; and (iii) is adequate to ensure safe arrival. Buyer shall notify Triad of any preferred method of shipment. If no instructions are given, Triad shall select the most cost effective carrier, given the time constraints known to Triad. All Products shall be shipped Ex-Works (EXW: Triad’s Agent’s Dock, Incoterms 2012). Title and Risk of loss shall pass to Buyer upon delivery of items to carrier (Buyer’s agent or as selected by Triad per 3.b) at Triad’s Agent’s dock.

All Products will be scheduled for shipment in accordance with Triad’s applicable shipment sequence and Triad will confirm in writing to Buyer the shipment schedule. Triad reserves the right to deliver Products up to ten days earlier than the applicable Delivery Date. Under no circumstances shall Triad be liable to Buyer for any delay in shipment or in delivery. Buyer will have a reasonable time to conduct reasonable inspections and tests of all Products, which inspection time will not exceed ten business days following the applicable Delivery Date.

Buyer may reject any Products that do not substantially conform to the Specifications by providing written notice of rejection to Triad no later than the conclusion of the inspection period set forth in Section 3e above, which written notice must describe the nonconformity with particularity. In the event that Buyer rejects any Products, Triad will not be deemed to have breached this Agreement if Triad repairs or replaces, in Triad’s sole option and at Triad’s sole expense, the rejected Products within 90 days after the original Delivery Date for such Products.

Buyer will comply with Triad’s reasonable instructions for the storage, return, and destruction of rejected and nonconforming Products; provided, however, that all reasonable costs and expenses incurred by Buyer in complying with Triad’s instructions will be Triad’s responsibility. No Products shall be returned to Triad or Triad’s Agent for any reason absent issuance by Triad of a Return Material Authorization (RMA). Returns must be shipped using Triad’s preferred carrier. The RMA shall specify the RMA number, the terms and conditions upon which returns may be made, and Triad’s preferred carrier. The RMA number must be marked on the outer shipping carton when Products are returned. Returns made without obtaining prior authorization or without the RMA number properly marked on the outer shipping carton will be returned to sender at Buyer’s expense. Triad shall bear the risk of loss for all rejected and nonconforming Products while in transit.

Unless Buyer provides written notice of rejection in accordance with Section 3f above, Buyer will be deemed to have accepted Products upon the earlier of Buyer’s written acceptance of the Products and the expiration of the inspection period set forth in Section 3e above.

4. RESCHEDULING AND CANCELLATION.

No changes to delivery schedule will be accepted inside of Standard Lead Time. At any time outside of Standard Lead Time, Buyer may change the delivery schedule without charge, provided the entire order quantity is still delivered within 12 months of the first Production shipment. Except as specifically agreed to in writing by both Triad and Buyer, once a Purchase Order is accepted by Triad, such Purchase Order may not be cancelled nor Product returned for credit, in whole or in part, by Buyer, and Buyer shall remain fully liable for 100% of the purchase price for all Products covered by an accepted Purchase Order.

5. PRICING.

The pricing for Products will be set forth in the applicable acknowledged Purchase Order. All prices are subject to adjustment by Triad on account of any changes to Specifications, quantities, shipment arrangements, or other terms and conditions that are not a part of the original price quotation. Prices are exclusive of shipping expenses from Triad’s Agent’s Dock to Buyer’s designated destination, which shipping expenses are Buyer’s sole responsibility. Prices are exclusive of all applicable taxes, including but not limited to sales/use taxes, value added taxes, transaction privilege taxes, gross receipts taxes, and other charges such as duties, customs, tariffs, imposts, and government imposed surcharges, which will be stated separately on Triad’s invoice. Triad shall collect such charges from Buyer and remit them to the appropriate tax authority unless Buyer provides sufficient proof of tax exemption. In the event that Buyer is prohibited by law from making payments to Triad unless Buyer deducts or withholds taxes therefrom and remits such taxes to the local taxing jurisdiction, then Buyer shall duly withhold such taxes and shall increase its payment to Triad by the amount of such taxes withheld. When property is delivered or services are provided or the benefit of services occurs within jurisdictions in which Triad collection and remittance of taxes is required by law, Triad shall collect said taxes from Buyer and pay them over to the appropriate tax authorities. Each party is responsible for its own respective income taxes or taxes based upon gross revenues, including but not limited to business and occupation taxes. Except as otherwise set forth in this Section 5, each party shall be solely responsible for its own expenses incurred as a result of this Agreement.

6. INVOICING AND PAYMENT.

Payment terms for all Products purchased by Buyer from Triad under this Agreement are cash upon delivery, except where satisfactory open account credit is established. Triad reserves the right at any time to revoke any credit extended to Buyer. Triad will issue invoices on shipment of Products. If deliveries are authorized in installments, each shipment shall be invoiced and payable when due without regard to other scheduled deliveries. Overdue payments shall be subject to finance charges computed at a periodic rate of 1.5% per month (18% per year) or, if less, the maximum rate permitted by law. All amounts owed by Buyer with respect to which there is no dispute shall be paid without set-off of any amount that Buyer may claim is owed by Triad and regardless of any other controversies that may exist.

7. FORCE MAJEURE.

Neither party shall be responsible for its failure to perform due to causes beyond its reasonable control, such as acts of God, fire, theft, war, riot, embargoes, acts of terrorism, unavailability of materials, strikes or acts of civil or military authorities. In the event of delay due to any such cause, the time for delivery and performance shall be extended for a period of time equal to the duration of such delay and Buyer shall not be entitled to refuse delivery or otherwise be relieved of any obligations as a result of the delay. If, as a result of any such cause, any scheduled performance is delayed for a period in excess of 120 days, Triad and Buyer shall have the right by written notice to the other to cancel the order for the Products and services subject to the delayed delivery without further liability of any kind.

8. WARRANTY AND LIMITATIONS OF LIABILITY.

Triad represents and warrants that the Products will substantially conform to the Specifications for a period of one year after the date of delivery to Buyer. TRIAD’S EXPRESS WARRANTY SPECIFIED IN THE PRECEDING SENTENCE CONSTITUTES TRIAD’S SOLE WARRANTY WITH RESPECT TO THE PRODUCTS. TRIAD DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. BUYER’S USE OF THE PRODUCTS FOR ANY PURPOSE AND IN ANY APPLICATION IS AT BUYER’S SOLE RISK. If Triad breaches the express warranty set forth herein and Buyer delivers prompt written notice to Triad describing such breach with particularity, then Triad will, at Triad’s sole option and expense, provide one of the following remedies to Buyer within 90 days of receipt of Buyer’s notice: (1) repair the nonconforming Products; (2) replace the nonconforming Products; or (3) refund the purchase price paid for the nonconforming Products. THE REMEDIES SPECIFIED IN THE PRECEDING SENTENCE CONSTITUTE BUYER’S SOLE REMEDIES FOR ANY BREACH OF WARRANTY BY TRIAD.

PRODUCTS FURNISHED BY TRIAD TO BUYER HEREUNDER ARE NOT DESIGNED OR INTENDED FOR USE IN LIFE SUPPORT EQUIPMENT, FOR THE PURPOSE OF RESCUE OF PERSONS, OR IN OTHER APPLICATIONS IN WHICH MALFUNCTION OF THE PRODUCT OR APPLICATION CAN REASONABLY BE EXPECTED TO RESULT IN PERSONAL INJURY OR DEATH. BUYER, ITS SUBCONTRACTORS, AND ITS CUSTOMERS USE, MARKET, AND SELL DEVICES FOR USE IN SUCH LIFE SUPPORT OR OTHER APPLICATIONS AT THEIR OWN SOLE RISK AND EXPENSE AND BUYER AGREES TO INDEMNIFY AND HOLD TRIAD HARMLESS FROM ANY AND ALL DAMAGES, COSTS OR EXPENSES ARISING FROM ANY CLAIM OR ACTION OF ANY THIRD PARTY BASED ON THE ACTUAL OR ALLEGED FAILURE OF A PRODUCT TO PERFORM IN SUCH APPLICATIONS. TRIAD SHALL NOT BE LIABLE TO BUYER, ITS CUSTOMERS OR ANY OTHER THIRD PARTY, IN CONTRACT, TORT, INDEMNITY, OR OTHERWISE, FOR ANY LIABILITY, LOSS, DAMAGE, COST, OR EXPENSE ARISING OUT OF ANY CLAIM FOR PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE RELATED TO THE PRODUCTS. IN NO EVENT SHALL TRIAD BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST OPPORTUNITIES, OR INTERRUPTION OF BUSINESS) OR PUNITIVE DAMAGES DUE TO ANY CAUSE WHATSOEVER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF WARNED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE AND EVEN IF ANY OF THE LIMITED REMEDIES AVAILABLE WOULD FAIL THEIR ESSENTIAL PURPOSE. IN NO EVENT SHALL THE TOTAL LIABILITY OF TRIAD TO BUYER OR ANY OTHER PERSON FROM ANY LAWSUIT, CLAIM, WARRANTY, OR OTHER DISPUTED MATTER UNDER THIS AGREEMENT EXCEED THE AGGREGATE AMOUNT PAID TO TRIAD BY BUYER UNDER THIS AGREEMENT.

9. INTELLECTUAL PROPERTY.

Triad grants authorized Buyer a personal, nontransferable, non-sublicensable, non-exclusive, royalty free license to use the Product, including all IP Rights of Triad therein, solely for use in Buyer’s products. Buyer may not copy, reverse engineer, duplicate or in any other way use the Product except for its intended purpose.

10. COMPLIANCE WITH LEGAL REQUIREMENTS.

Upon Buyer’s request, Triad will provide Buyer with a statement of origin for all Products and with applicable customs documentation for Products wholly or partially manufactured outside of the country of import. Each party shall comply with all national, state and local laws and regulations governing the manufacture, transportation, import, export, and sale of Products, including, in the United States, without limitation, US Export Control laws, including Department of Commerce and US Export Administration regulations. Products may contain technical data that is controlled under either (i) the United States Munitions List and, as such, subject to the International Traffic in Arms Regulations (ITAR, 22 C.F.R. §§120-130); or (ii) the Commerce Control List, and as such, subject of the Export Administration Regulations (EAR, 15 C.F.R. §§730- 774). Accordingly, each party represents and warrants that it shall not transfer its own or the other party’s technical data directly or indirectly to any individual, employee, company or other entity without first complying with all requirements of the ITAR, the EAR and any other applicable export restrictions, including the requirement for obtaining any export license, if applicable. Technical data that is controlled by the ITAR, EAR, or other applicable export restrictions shall not be released to foreign nationals, including foreign national employees, whether in the United States or abroad, without first obtaining the appropriate export license or other approval from the US government and otherwise complying with all applicable governmental requirements, as they may be amended from time to time.

11. MERGER, MODIFICATION, WAIVER, AND REMEDIES.

This Agreement contains the entire understanding between Buyer and Triad with respect to the subject matter hereof and merges and supersedes all prior and contemporaneous agreements, dealings, and negotiations. No modification, alteration, or amendment shall be effective unless made in writing, dated and signed by duly authorized representatives of both parties. No waiver of any breach hereof shall be held to be a waiver of any other or subsequent breach. Each party’s rights and remedies herein are in addition to any other rights and remedies provided by law or in equity. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such determination shall not affect the validity of the remaining provisions.

12. ASSIGNMENT.

Neither party may assign any rights in nor delegate any obligations under this Agreement without the written consent of the other. For purposes of this Section 12, the acquisition, merger, consolidation, or change in control of a party or any assignment by operation of law shall not be deemed an assignment that requires the other party’s written consent. Nothing in this Section 12 will in any way limit Triad’s right to use third party manufacturers and foundries of Triad’s choosing to fabricate the Products.

13. APPLICABLE LAW.

This Agreement is to be construed and interpreted according to the laws of the State of North Carolina, excluding its conflict of laws provisions. The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

14. SPECIFIC PERFORMANCE.

Each party agrees that its failure to perform certain obligations hereunder would cause irreparable damage to the other party, and that monetary damages would not provide an adequate remedy in such event. Accordingly, the parties agree that, in addition to any other remedy to which the non-breaching party may be entitled, at law or in equity, the non-breaching party shall be entitled to injunctive relief to prevent breaches of this Agreement, and an order of specific performance to compel performance of such obligations in any action instituted in any court of the United States or any state thereof having subject matter jurisdiction.

15. NOTICES.

All notices to either party regarding this Agreement must be in writing given by either hand delivery, overnight courier, first class mail, electronic mail, or facsimile, properly addressed and all fees and postage prepaid. All such notices will be deemed to be sufficiently made as follows: (i) on the date given, if given by hand delivery, electronic mail, or facsimile, provided, however, that any notice given by electronic mail or facsimile must be confirmed in writing and mailed within ten days to the other party by first class mail; and (ii) on the date after being deposited with overnight courier or U.S. mail, if given by overnight courier or first class mail.

16. DISPUTE RESOLUTION.

All disputes arising directly under the express terms of this Agreement or the grounds for termination thereof shall be resolved as follows: The senior management of both parties shall meet to attempt to resolve such disputes. If the disputes cannot be resolved by the senior management, either party may make a written demand for formal dispute resolution through arbitration and specify therein the scope of the dispute. Any controversy or dispute arising under this Agreement shall be referred to and finally settled by arbitration in the City of Winston-Salem, North Carolina, USA, under the auspices of, and conducted in accordance with, the rules of the American Arbitration Association. All arbitration proceedings shall be before a board of three arbitrators who are knowledgeable about goods substantially similar to the Products and each party shall select one arbitrator and the selected arbitrators shall select the third arbitrator. The arbitration proceedings shall be conducted in the English language and any award shall be in United States dollars. The cost of the third arbitrator shall be divided equally between the parties and each party shall pay the costs of the arbitrator selected by it. Any award of the arbitrators shall be final and conclusive on the parties to this Agreement, and judgment upon such award may be entered and enforced in any court having jurisdiction thereof. With the exception of an action brought to enforce the terms of a previous arbitration award, arbitration shall be the sole and exclusive method of resolving disputes between the parties in connection with this Agreement.

— REV. FEB 2015