TERMS AND CONDITIONS OF SALE

The sale of products and services (“Products”) by MetroSys, Inc. (“MetroSys”) are subject to these terms and conditions (“Agreement”) regardless of other or additional terms or conditions that conflict with or contradict this Agreement in any purchase order, document, or other communication (“Order”). Preprinted terms and conditions on any document of customer (“Customer”) (for example: Orders or confirmations) and/or MetroSys’ failure to object to conflicting or additional terms will not change or add to the terms of this Agreement.

1.     ORDERS - Quotes from MetroSys are invitations to enter a contract and are subject to change at any time without notice.  Unless otherwise provided in a quote, all quotes are valid for a period of 30 days from the date of delivery. All Orders are subject to acceptance by MetroSys.  Contracts between Customer and MetroSys are formed upon MetroSys’ written acceptance or execution of Customer’s Order and shall be subject to this Agreement.

2.     PRICES - Customer agrees to hold in confidence and not disclose to any third-party MetroSys’ non-published pricing and other purchasing information contained in any quote received from MetroSys.  All pricing contained in quotes are subject to change at any time.

3.     TERMS OF PAYMENT - Payment of the total invoice amount, without offset or deduction, is due 30 days from the invoice date or as otherwise approved in writing by MetroSys.  On any past due invoice, MetroSys may charge interest from the payment due date to the date of payment at the lesser of (a) 18% per annum; or (ii) the maximum amount that is allowed under applicable law.  MetroSys shall be entitled to receive reasonable attorneys’ fees incurred in the collection of any past due invoice.  At any time, MetroSys may change the terms of Customer’s credit, require financial data from Customer for verification of Customer’s creditworthiness, require a bank guarantee or other security, or suspend any outstanding Orders of MetroSys may apply payments to any of Customer’s accounts.  If Customer defaults on any payment under this Agreement, MetroSys may reschedule or cancel any outstanding delivery and declare all outstanding invoices due and payable immediately. Unless otherwise provided by applicable law, any credit issued by MetroSys to Customer in respect of any of Customer’s accounts will expire if unused for 12-months following the date of issuance of such credit.

4.     DELIVERY AND TITLE - Title shall pass to Customer upon delivery of the Products to the carrier.  MetroSys’ delivery dates are estimates only and subject to timely receipt of supplies by MetroSys. MetroSys is not liable for delays in delivery.  MetroSys reserves the right to make partial deliveries and Customer will accept delivery and pay for the Products delivered.  A delayed delivery of any part of an Order does not entitle Customer to cancel other deliveries.

5.     METROSYS’S LIMITED WARRANTY - MetroSys will pass through to Customer any transferable Product warranties, indemnities, and remedies provided to MetroSys, by its distributor or the manufacturer, including any warranties and indemnities for intellectual property infringement. If required by law, MetroSys warrants that at the time of delivery, the Products shall have the specifications stated by the manufacturer in its published data sheet for the Products for 12-months from delivery of Products.  MetroSys warrants that, for a period of 30-days after delivery of the Products to Customer, any value-added work performed by MetroSys on Products will conform to Customer’s specifications that are in writing and accepted by MetroSys and Customer shall be deemed the manufacturer of such value-added Products.  To the extent permitted by law, MetroSys makes no other warranty, express or implied, such as warranty of merchantability, fitness for purpose or non­infringement.  Customer’s sole remedies for breach of MetroSys’ warranty are, at MetroSys’ choice: (a) repair the Products; (b) replace the Products at no cost to Customer; or (c) refund Customer the purchase price of the Products.

6.     PRODUCT RETURN - In the event that any Product is determined to be defective and Customer desires to return such Product, Customer shall follow the Product manufacturer’s return procedures.  If requested by Customer, MetroSys agrees to use commercially reasonable efforts to assist Customer in effecting the Product return.

7.     LIMITATION OF LIABILITY - To the extent permitted by law, neither MetroSys nor its employees or agents are liable for, and Customer is not entitled to any indirect, special, incidental or consequential damages (for example, loss of profits or revenue, loss of data, loss of use, rework, manufacturing expense, injury to reputation, or loss of customers).  In no event shall Customer’s recovery from MetroSys for any direct damages exceed the price of the Product at issue.  To the extent the preceding limitation of liability is deemed invalid under applicable law, MetroSys’ total liability in any event will not exceed USD $10,000 or the equivalent thereof.  Customer will indemnify, defend and hold MetroSys harmless from any claims based on: (i) MetroSys’ compliance with Customer’s designs, specifications, or instructions, (ii) modification of any Product by anyone other than MetroSys, or (iii) use of Products in combination with other products or in violation of clause 9 below.

8.     FORCE MAJEURE - MetroSys is not liable for failure to fulfill its obligations under this Agreement due to causes beyond its reasonable control (for example: acts of nature, acts or omissions of the Customer, operational disruptions, man-made or natural disasters, epidemic medical crises, materials shortages, strikes, criminal acts, delays in delivery or transportation, or inability to obtain labor or materials through its regular sources).

9.     USE OF PRODUCTS - Customer shall comply with the manufacturer’s or supplier’s Product Products are not authorized for use 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 Customer uses or sells the Products for use in any such applications or fails to comply with the manufacturer’s Product specifications, Customer acknowledges that such use, sale, or non-compliance is at Customer’s sole risk.

10.  EXPORT/IMPORT - Certain Products and related technology and documentation sold by MetroSys are subject to export control laws, regulations and orders of the United States, the European Union, and/or other countries (“Export Laws”). The Customer shall comply with such Export Laws and obtain any license, permit or authorization required to transfer, sell, export, re-export or import the Products and related technology and The Customer will not export or re-export the Products and related technology and documentation to any country or entity to which such export or re-export is prohibited, including any country or entity under sanction or embargoes administered by the United Nations, U.S. Department of Treasury, U.S. Department of Commerce or U.S. Department of State.

11.  PRODUCT INFORMATION - Product information (for example, statements or advice (technical or otherwise) advertisement content, and information  related to a Product’s specifications, features, export/import control classifications, uses or conformance with legal or other requirements) is provided by MetroSys on an “AS IS” basis and does not form a part of the properties of the Product.  MetroSys makes no representation as to the accuracy or completeness of the Product information, and DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND LIABILITIES UNDER ANY THEORY WITH RESPECT TO THE PRODUCT INFORMATION.  MetroSys recommends Customer validate any Product information before using, relying or acting on such information.  All Product information is subject to change without notice.  MetroSys is not responsible for typographical or other errors or omissions in Product information.

12.  ELECTRONIC ORDERS - In the event that any part of the purchase and sale of Products utilizes electronic data interchange, Customer’s internal portal or third-party portal, or any other electronic means (“Electronic Purchase Order”), this Agreement will continue to apply to the purchase and sale of Products between Customer and MetroSys.  Customer’s acceptance of MetroSys’ acknowledgment request or MetroSys’ specification of details with respect to Electronic Purchase Orders via writing, email or other electronic data interchange shall be binding on Customer.

13.  GENERAL

A.     This Agreement shall be governed, construed, and enforced in accordance with the laws of the state of California, without giving effect to conflict of law principles thereof. The courts of San Diego County, California shall have exclusive jurisdiction and venue over all controversies arising out of, or relating to, this The United Nations Convention for the International Sale of Goods shall not apply.

B.     Customer may not assign this Agreement without the prior written consent of MetroSys. This Agreement is binding on successors and assigns.

C.     This Agreement can only be modified in writing signed by authorized representatives of both MetroSys and Customer. Such modification shall only be valid to the extent it expressly provides for modification of this Agreement.

D.     MetroSys and Customer are independent contractors and agree that this Agreement does not establish a joint venture, agency relationship, or partnership.

E.     MetroSys’ failure to object to any document, communication, or act of Customer will not be deemed a waiver of any of these terms and conditions.

F.     The unenforceability of any provision of this Agreement will not affect the remainder of the terms or conditions.

G.     Products, including software or other intellectual property, are subject to any applicable rights of third parties, such as patents, copyrights and/or user licenses, and Customer will comply with such rights.

H.     Customer and MetroSys will comply with applicable laws and regulations.

I.       The parties agree to use electronic signatures and agree that any electronic signatures will be legally valid, effective, and enforceable.