ASAP Semiconductor Purchase Order Terms & Conditions

This Purchase Order forms a Contract and integrates, merges, and supersedes any prior offers, negotiations, and agreements concerning the items subject to this Purchase Order and constitutes the entire agreement between the parties. This Purchase Order may only be amended in writing. Seller's acknowledgment, acceptance of payment, or commencement of performance, shall constitute Seller’s unqualified acceptance of this Purchase Order. Unless expressly accepted in writing by ASAP Semiconductor, additional or differing terms or conditions proposed by Seller or included in Seller's acknowledgment are objected to by ASAP Semiconductor and have no effect.

DEFINITIONS

For purposes of these Terms and Conditions, the following definitions apply:

“Article” means any material, part, component, process, assembly, or appliance sold or provided to ASAP Semiconductor.

“ASAP Semiconductor” means ASAP Semiconductor and all its business names, affiliates, divisions, and subsidiaries; including, but not limited to, the following sales sites: Aviation Sourcing Solutions, Just NSN Parts, Just Connectors, ASAP Memory, Just IT Hardware, AFR Enterprises, ASAP NSN Parts, ASAP Purchasing, ASAP Aerospace, and ASAP Fasteners.

“CEO” means Chief Executive Officer

“CLO” means Chief Legal Officer

“Contract” means the instrument of contracting, such as "Purchase Order", "PO", "Subcontract", or other such type designation, including these terms and conditions, and all referenced documents and attachments, whether attached to this Contract document, the underlying documents (e.g., Purchase Order or PO), or incorporated by reference.

“Seller” means the party identified on the face of this Contract with whom ASAP Semiconductor is contracting.

“Terms and Conditions” shall mean this document and any terms incorporated by reference.

ACCEPTANCE

Seller agrees to furnish the Articles hereby ordered under this Purchase Order. Signing and returning a copy of the Purchase Order, commencement of performance, shipment of goods, or acceptance of any payment, shall constitute Seller’s unqualified acceptance of this Purchase Order subject to these terms and conditions and the formation of a binding Contract.  Any terms or conditions proposed by Seller inconsistent with or in addition to the terms and conditions contained herein shall be void and of no effect unless specifically agreed to by ASAP Semiconductor in writing.

CONTRACT MODIFICATION

ASAP Semiconductor may, at any time and by written notice, make changes within the scope of this Contract in the following: delivery schedule, place of acceptance or point of delivery, and/or method of shipping and packing requirements. If any such change causes an increase or decrease in the cost of, or the time required for, performance of any part of this Contract, ASAP Semiconductor shall make a commensurate adjustment to the price and/or delivery schedule and this Contract shall be considered modified accordingly.

Only the ASAP Semiconductor point of contact for this Contract has the authority to make changes to this Contract. All amendments must be presented in writing and accepted in writing by the receiving party. Any other representative of ASAP Semiconductor proposing to amend this Contract must present to Seller written authorization from ASAP Semiconductor President, CEO, or CLO to make such amendment and failure to do so shall render any such amendment void. The President, CEO, and CLO shall each have the individual authority to amend the Contract in writing in accordance with the requirements of this section.

INVOICE AND PAYMENT

An original invoice shall be submitted to accounts receivable for each delivery of Articles and contain the following information:  purchase order number; unique invoice number, invoice date, remit to address, line-item number, description of Articles, part number, size, quantity, unit price, extended line item total and total invoice price.  Any invoice submitted hereunder will be paid Net 30 days after receipt of proper invoice and acceptance of the delivered goods by ASAP Semiconductor.  Prior to payment, ASAP Semiconductor may make any adjustments to Seller’s invoice to accommodate shortages, late delivery, rejections, or other failure to comply with the requirements of this Contract.  Payment discounts will be taken from the date of an acceptable invoice. Payment shall not constitute final acceptance.  ASAP Semiconductor may offset against any payment hereunder for any amount owed to ASAP Semiconductor by Seller.  In the event of an overpayment, Seller shall promptly repay ASAP Semiconductor any amount paid in excess of amounts due to Seller.

TAXES AND DUTIES

All taxes, including but not limited to, federal, state and local income taxes; franchise taxes; federal, state and local sales and use taxes (except sales or use taxes imposed on account of a transaction made under this Contract); gross receipts taxes; property taxes; and import or export duties and tariffs; and all such similar fees imposed by any government are deemed to be included in the price of the goods and all of which must be listed separately on the invoice.

PACKING AND SHIPPING

Unless otherwise specified, all goods shall be suitably packed in accordance with good commercial practices and comply with carrier’s regulations.  All charges for packing, crating and transportation are included in the price for the Articles set forth in this Contract and will be paid by Seller. 

A packing list shall accompany each shipment showing the purchase order number as well as the item number, description of Articles, and quantity.  If no such Packing List accompanies any shipment, the count, weight or other measure of ASAP Semiconductor will be deemed final and conclusive.  ASAP Semiconductor is not obligated to accept any shipments in excess of the ordered quantity, which may be returned to Seller at Seller’s expense.

Unless otherwise stated herein, all deliveries under this Contract shall be F.O.B. destination (UCC). Title and risk of loss of all goods shall pass to ASAP Semiconductor or its customer as ASAP Semiconductor may so designate in writing, when goods are received and ASAP Semiconductor or its duly designated customer takes possession of goods. 

DELIVERY

Time is of the essence of this Purchase Order and failure to deliver in accordance with the delivery schedule under this Contract, if unexcused, will be considered a material breach of the Contract.  No acts of Buyer, including without limitation modifications of this Contract or acceptance of late deliveries, shall constitute waiver of this provision. Delivery shall not be deemed to be complete until goods have been received and accepted by ASAP Semiconductor.

Seller shall notify ASAP Semiconductor in writing immediately of any actual or potential delivery delays under this Contract.  Such notice must include a proposed revised schedule but such notice and proposal or ASAP Semiconductor’s receipt or acceptance thereof shall not constitute a waiver of ASAP Semiconductor’s rights and remedies under this Contract.

INSPECTION AND ACCEPTANCE

All goods and services are subject to inspection by ASAP Semiconductor at no additional cost to ASAP Semiconductor or its customer at reasonable times and places, including at Seller’s location or at Seller’s lower-tier supplier/subcontractor’s location.  

If Seller delivers non-conforming Articles, ASAP Semiconductor may, in addition to any other remedies available at law or at equity:  (i) accept all or part of such goods at an equitable price reduction; (ii) reject non-conforming goods; or (iii) require Seller, at Seller’s expense, to make all repairs, modifications, or replacements at the direction of ASAP Semiconductor necessary to enable such good to comply in all respects with this Contract.  In this instance, Seller shall not redeliver corrected Articles without disclosing the corrective action taken to ASAP Semiconductor in writing. 

ASSIGNMENT

Any assignment of Seller's Contract rights or delegation of Seller's duties under this Contract is void, unless prior written consent is given by ASAP Semiconductor.

CHANGE IN CONTROL OF SELLER

In the event of a change in control of Seller that will take effect prior to the completion of this Contract, Seller will promptly notify ASAP Semiconductor in writing thereof, and provide, at ASAP Semiconductor’s request, written assurance of the full completion of this Contract. If the Contract cannot be completed, Seller shall provide to ASAP Semiconductor a written plan to mitigate and indemnify ASAP Semiconductor against any damages arising from Seller’s failure to complete the Contract. This mitigation and indemnity shall be in addition to, and not in lieu of, any other damages provided for by this Contract.

TERMINATION FOR CONVENIENCE

ASAP Semiconductor may terminate this Contract for its convenience, in whole or in part, by providing written notice of such termination to Seller.  In the event of such a termination, Seller must: (i) stop work immediately and direct all of its suppliers and subcontractors to stop work immediately on the terminated portion of the Contract; (ii) promptly deliver to ASAP Semiconductor all fully completed goods; and (iii) continue all work that was not terminated.

Seller will be entitled to an Equitable Adjustment to the Contract price but will not be paid for any worked performed or costs incurred that could have been reasonably avoided.  Seller must submit its proposal to Buyer for costs relating to the termination within thirty (30) days after the effective date of the termination.  In no event will ASAP Semiconductor be liable for lost or anticipated profits, unabsorbed indirect costs or overhead, or for any sum in excess of the total Contract price.  Seller hereby waives, releases, and renounces any claim for compensation not made within the aforementioned time period.

TERMINATION FOR DEFAULT

(a) ASAP Semiconductor, by written notice to Seller, may, terminate this Contract for default, in whole or in part, if Seller:

(i) fails to comply with any of the terms of this Contract; 

(ii) fails to make progress so as to endanger performance of this Contract;

(iii) fails to provide to ASAP Semiconductor, in writing, adequate assurances of performance;

(iv) becomes insolvent or subject of proceedings under any law relating to bankruptcy or the relief of debtors or admits in writing its inability to pay its debts as they become due; or

(v) is debarred, suspended or proposed for debarment by the U.S. Federal Government

(b) Seller shall have ten (10) days, or such longer period as ASAP Semiconductor may authorize in writing, to cure any such failure after receipt of notice from ASAP Semiconductor.  Seller shall not be entitled to a cure notice for a default involving delivery schedule delays, bankruptcy, or for debarment, suspension, or proposal for debarment by the U.S. Federal Government. 

(c) If this Contract is terminated for default, ASAP Semiconductor may procure or otherwise obtain, on such terms and in such a manner as it deems appropriate, goods or services similar to those terminated. Seller shall be liable to ASAP Semiconductor for any excess re-procurement costs of such similar goods or services.

(d) Seller shall transfer title and deliver to ASAP Semiconductor, in the manner and to the extent requested in writing by ASAP Semiconductor at or after termination, such complete or partially completed Articles and rights as Seller has produced or acquired for the performance of the terminated part of this Contract.  ASAP Semiconductor will pay Seller the price for completed Articles delivered to and accepted by ASAP Semiconductor and the fair value of the other property of Seller so requested and delivered.

(e) Seller shall continue performance of this Contract to the extent not terminated.  ASAP Semiconductor shall have no obligations to Seller in respect to the terminated part of this Contract except as provided in this section.  ASAP Semiconductor’s rights as set forth in this section shall be in addition to any other rights in law, equity, or pursuant to this Contract in case of Seller's default.

(f) Seller shall not be liable for damages resulting from default due to causes beyond Seller's control and without Seller's fault or negligence, provided, however, that if Seller's default is caused by the default of a subcontractor or supplier at any tier, such default must arise out of causes beyond the control of both Seller and subcontractor or supplier, and without the fault or negligence of either of them and, provided further, the supplies or services to be furnished by the subcontractor or supplier were not obtainable from other sources.

NEW ARTICLES

The Articles to be delivered under this contract must consist of new materials, not used, reconditioned, remanufactured, or of such age as to impair the usefulness or safety of the Articles, unless otherwise approved in writing by ASAP Semiconductor.

COUNTERFEIT ARTICLES

This section applies to all Contracts. If DFARS 252.246-7007 or DFARS 252.246-7008 are also applicable to this Contract, the provisions of paragraphs (a) – (e) of DFARS 252.246-7007, including its definition of “electronic parts,” are incorporated in this paragraph by reference and “Contracting Officer” shall mean “ASAP Semiconductor”. Seller will establish and maintain a counterfeit prevention process that ensures the requirements of these clauses or other authenticity requirements in this Contract are met. Seller’s obligation to confirm and provide genuine, non-counterfeit Articles shall survive Acceptance of and payment for Articles delivered under this Contract.

Seller shall not furnish suspect counterfeit or counterfeit Articles to ASAP Semiconductor under this Contract. All Articles delivered under this Contract must be authentic, genuine, and traceable to the original manufacturer. Seller must provide authenticity and traceability records to ASAP Semiconductor upon request.

Electronic parts must not be acquired from brokers or surplus parts sellers unless approved in advance in writing by ASAP Semiconductor. Seller shall immediately notify Buyer if Seller cannot provide electronic Articles traceable to the original component manufacturer, the original equipment manufacturer, or an authorized distributor thereof. ASAP Semiconductor reserves the right to terminate this Contract at no cost or to require specific material validation test and inspection protocol requirements to Seller in the event of such notice to ASAP Semiconductor.

If suspect counterfeit or counterfeit Articles are furnished under this Contract and are found in any of the Articles delivered hereunder, such items will be quarantined by ASAP Semiconductor. Seller shall promptly replace such suspect/counterfeit Articles with Articles acceptable to ASAP Semiconductor. Seller shall be liable for all costs relating to the removal and replacement of such Articles, including without limitation ASAP Semiconductor’s direct and consequential costs of removing such suspect/counterfeit Articles, of reinserting replacement Articles and of any testing or validation necessitated by the reinstallation after suspect/counterfeit Articles have been replaced. ASAP Semiconductor’s remedies described in this section shall not be limited by any other clause or section agreed upon between ASAP Semiconductor and Seller in this Contract and are in addition to any remedies Buyer may have at law, equity or otherwise under this terms of this Contract.

Seller must insert the substance of this clause, including this sentence, in any lower tier subcontract.

QUALITY CONTROL SYSTEM

Seller shall provide and maintain a quality control system to an industry recognized Quality Standard and in compliance with any other specific quality requirements identified in this Contract. Records of all quality control inspection work by Seller shall be kept complete and available to ASAP Semiconductors and its customers upon request.

WARRANTY

Seller warrants that all Articles furnished pursuant to this Contract strictly conform to applicable specifications, drawings, samples, descriptions, and other requirements of this Contract and are free from defects in design, material, and workmanship. This warranty shall begin upon final acceptance and extend for a period of one (1) year.

Seller warrants any hardware, software and firmware goods delivered hereunder shall not contain any viruses, malicious code, Trojan horse, worm, time bomb, self-help code, back door, or other software code or routine designed to (i) damage, destroy or alter any software or hardware; (ii) reveal, damage, destroy or alter any data; (iii) shall not contain any third party software that may require any software to be published, accessed or otherwise made available without ASAP Semiconductor’s consent or may require distribution, copying or modification of any software free of charge; and (iv) shall not infringe any patent, copyright, trademark or other proprietary right of any third party or misappropriate any trade secret of any third party.

If any nonconforming Articles are identified within the warranty period, Seller, at ASAP Semiconductor’s option, shall promptly repair or replace the Articles. Transportation of replacement Articles and return of nonconforming Articles shall be at Seller’s expense. If repair or replacement of Articles is not timely, ASAP Semiconductor may elect to return, repair, replace, or reprocure the non-conforming Articles at Seller's expense. All warranties shall run to ASAP Semiconductor and its customers and shall survive inspection, delivery, acceptance, or payment by ASAP Semiconductor.

QUANTITIES

Articles must not be supplied in excess of the quantities specified in this Contract. Seller agrees to be held liable for handling charges and return shipment costs for any excess quantities, and agrees to hold harmless ASAP Semiconductor for any damage or loss occurring to returned Articles shipped in excess of the contracted quantities.

PLACE OF PERFORMANCE

If Seller intends to change the place of performance of this Contract from the place(s) identified in Seller’s offer, Seller shall provide prior written notice to ASAP Semiconductor at least three months in advance of such change.

EXPORT COMPLIANCE

Seller agrees to comply with all applicable U.S. export control laws and regulations, specifically including, but not limited to, the requirements of the Arms Export Control Act, 22 U.S.C. 2751-2794, including the International Traffic in Arms Regulation (ITAR), 22 C.F.R. §§ 120-130; the Export Administration Regulations, 15 C.F.R. §§ 730-774; and the Foreign Assets Control Regulations, 31 C.F.R. §§ 500-598, including the requirement for obtaining any export license or agreement, if applicable. Without limiting the foregoing, Seller agrees that it will not transfer any export-controlled item, data, or service without the authority of an export license, agreement, or applicable exemption or exception.

Seller agrees to immediately notify ASAP Semiconductor if any deliverable under this Contract is restricted by export control laws or regulations and shall provide to ASAP Semiconductor accurate United States Munitions List (USML) category information or Export Control Classification Number (ECCN) for the controlled item, data, or service.

Seller shall immediately notify ASAP Semiconductor if Seller is, or becomes, listed in any restricted party list, including but not limited to the Specially Designated Nationals List (OFAC), Denied Parties List, Unverified List, or Entity List (BIS), or List of Statutorily Debarred Parties (DDTC), or if Seller’s export privileges are otherwise denied, suspended or revoked in whole or in part by any U.S. Government entity or agency.

If Seller is engaged in the business of either exporting or manufacturing defense articles or furnishing defense services, Seller represents that it is registered with the Directorate of Defense Trade Controls, as required by the ITAR, and it maintains an effective export/import compliance program in accordance with the ITAR.

Where Seller is a signatory under an ASAP Semiconductor export license or export agreement (e.g., Technical Assistance Agreement (TAA), Manufacturing License Agreement (MLA)), Seller shall provide prompt notification to ASAP Semiconductor in the event of changed circumstances including, but not limited to, ineligibility, a violation or potential violation of the ITAR or EAR, and the initiation or existence of a U.S. Government investigation, that could affect the Seller’s performance under this Contract. 

Seller shall be responsible for all losses, costs, claims, causes of action, damages, liabilities and expenses, including attorneys’ fees, all expense of litigation and/or settlement, and court costs, arising from any act or omission of Seller, its officers, employees, agents, suppliers or subcontractors at any tier, in the performance of any of its obligations under this section.

IMPORT COMPLIANCE

Seller shall comply with all U.S. Customs and Border Protection laws and regulations (e.g., 19 C.F.R. et seq.) and all other applicable U.S. Government regulations pertaining to importation of Articles into the United States under this Contract. Seller shall assume all U.S. import responsibilities, including designation as U.S. Importer of Record, Customs clearance, duty, permits, licenses, taxes, and fees for Articles entering into the United States under this Contract. Unless otherwise agreed in writing, ASAP Semiconductor will not assume any import liabilities for Articles procured under this Contract. Seller shall obtain the written consent of ASAP Semiconductor prior to causing Articles to be shipped directly (i.e., “drop shipped”) from the premises of any non-U.S. supplier to ASAP Semiconductor’s facility.

GRATUITIES AND KICKBACKS

Seller shall not offer or give a kickback or gratuity (in the form of entertainment, gifts, or otherwise) for the purpose of obtaining or rewarding favorable treatment as a supplier or subcontractor of ASAP Semiconductor.  By agreeing to this Contract, Seller certifies and represents that it has not made or solicited, and will not make or solicit, kickbacks in violation of FAR 52.203-7 or the Anti-Kickback Act of 1986 (41 U.S.C. §§ 51-58), both of which are hereby incorporated by reference.

INFORMATION RIGHTS AND SECURITY

(a) Information provided by ASAP Semiconductor to Seller remains the property of ASAP Semiconductor. Seller shall comply with the terms of any proprietary information agreement with ASAP Semiconductor and comply with all proprietary information markings and restrictive legends applied by ASAP Semiconductor to anything provided hereunder to Seller. Seller shall not use any ASAP Semiconductor provided information for any purpose except to perform this Contract and shall not disclose such information to third parties without the prior written consent of ASAP Semiconductor. Seller shall maintain data protection processes and systems sufficient to adequately protect ASAP Semiconductor -provided information and comply with any law or regulation applicable to such information.

(b) If Seller becomes aware of any compromise of information used in the performance of this Contract or provided by ASAP Semiconductor to Seller, its officers, employees, agents, suppliers, or subcontractors (an “Incident”), Seller shall take appropriate immediate actions to investigate and contain the Incident and any associated risks, including notification within seventy-two (72) hours to ASAP Semiconductor after learning of the Incident. As used in this clause, “compromise” means that information has been exposed to unauthorized access, ransomware, inadvertent disclosure, known misuse, loss, destruction, or alteration other than as required to perform the Contract. Seller shall provide reasonable cooperation to ASAP Semiconductor in conducting any investigation regarding the nature and scope of any Incident. Any costs incurred in investigating or remedying Incidents shall be borne by Seller.

(c) Any ASAP Semiconductor -provided information identified as proprietary or subject to restrictions on public disclosure by law or regulation shall be encrypted (i) if transmitted via the Internet, or (ii) during electronic storage if potentially accessible by the Internet or otherwise by non-authorized users.

(d) The provisions set forth above are in addition to and do not alter, change, or supersede any obligations contained in any proprietary information agreement between the parties.

(e) Seller shall not provide any proprietary information to ASAP Semiconductor without written notification to and acceptance by ASAP Semiconductor. Prior execution of a proprietary information agreement by the parties must be completed and signed by each party prior to provision of any proprietary information to ASAP Semiconductor.

INTELLECTUAL PROPERTY

Paragraph (a) is not applicable for commercial off-the-shelf (COTS) Articles unless such Articles are modified or redesigned pursuant to this Contract.

(a) Seller agrees that ASAP Semiconductor shall be the owner of all inventions, technology, designs, works of authorship, mask works, technical information, computer software, business information and other information conceived, developed or otherwise generated in the performance of this Contract by or on behalf of Seller. Seller hereby assigns and agrees to assign all right, title, and interest in the foregoing to ASAP Semiconductor, including without limitation all copyrights, patent rights, and other intellectual property rights therein and further agrees to execute, at ASAP Semiconductor's request and expense, all documentation necessary to perfect title therein in ASAP Semiconductor. Seller must maintain and disclose to ASAP Semiconductor written records of, and otherwise provide ASAP Semiconductor with full access to, the subject matter covered by this clause and that all such subject matter will be deemed information of ASAP Semiconductor and subject to the protection provisions of the section entitled "Information Rights and Security." Seller must assist ASAP Semiconductor, at ASAP Semiconductor's request and expense, in every reasonable way, in obtaining, maintaining, and enforcing patent and other intellectual property protection on the subject matter covered by this section.

(b) Seller warrants that the Articles delivered under this Contract will not infringe or otherwise violate the intellectual property rights of any third party anywhere in the world. Seller shall defend, indemnify, and hold harmless ASAP Semiconductor, its officers, directors, employees, consultants, agents, affiliates, successors, permitted assigns and customers from and against all losses, costs, claims, causes of action, damages, liabilities, and expenses, including attorney’s fees, all expenses of litigation and/or settlement, and court costs, arising out of any action by a third party that is based upon a claim that the Articles delivered under this Contract infringe or otherwise violate the intellectual property rights of any person or entity wherever located.

(c) To the extent that any pre-existing inventions, technology, designs, works of authorship, mask works, technical information, computer software, and other information or materials are used, included, or contained in the Articles and not owned by ASAP Semiconductor pursuant to this or a previous agreement with Seller, Seller grants to ASAP Semiconductor an irrevocable, nonexclusive, world-wide, royalty-free license to: (i) make, have made, sell, offer for sale, use, execute, reproduce, display, perform, distribute (internally or externally) copies of, transfer computer software, and prepare derivative works based upon, such pre-existing inventions, technology, designs, works of authorship, mask works, technical information, computer software, and other information or materials and derivative works thereof; and (ii) authorize others to do any, some, or all of the foregoing.

(d) The tangible medium storing copies of all reports, memoranda or other materials in written form including machine readable form, prepared by Seller and furnished to ASAP Semiconductor pursuant to this Contract shall become the sole property of ASAP Semiconductor. Nothing in this paragraph (d) assigns ownership of Seller’s intellectual property included on such medium to ASAP Semiconductor.

(e) No other provision in this Contract, including but not limited to the Indemnity section, shall be construed to limit the liabilities or remedies of the parties under this section.

INDEMNIFICATION

Seller shall indemnify, defend, and hold harmless Buyer, including its officers, directors, employees, consultants, agents, affiliates, successors, and permitted assigns, and Buyer’s customers from and against any and all damages, losses, liabilities, claims, demands, subrogation, suits, actions, proceedings, cost and expenses (including reasonable attorneys’ fees and cost of litigation) arising out of or relating to any claims, causes of action, lawsuits or other proceedings, regardless of legal theory, that result, in whole or in part, from Seller’s (or any of Seller’s suppliers/subcontractors, employees, agents or representatives):  (i) intentional misconduct, negligence, or fraud; (ii) breach of any representation, warranty or covenant made herein; (iii) breach of the confidentiality or disclosure provisions herein; (iv) infringement of any patent, trademark, copyright, trade secret, or any other intellectual property right; or (v) violation of any law or regulation. 

LIMITED LIABILITY

Notwithstanding anything else to the contrary herein, Seller agrees that the maximum liability of ASAP Semiconductor under this Contract (whether by reason of breach of contract, tort, or otherwise, including under all indemnification and warranty provisions (if any)), shall be limited to the aggregate amount of payments made to Seller as of the date the claim arises, and in no event shall ASAP Semiconductor be liable for indirect, special, consequential, punitive, exemplary, or incidental damages, regardless of whether ASAP Semiconductor (a) has been informed of the possibility of such damages or (b) is negligent.

INSURANCE

(a) Seller and its subcontractors at every tier must maintain for the performance of this Contract the following insurance:

            (i) Worker’s compensation insurance meeting the statutory requirements where the Contract will be performed.

            (ii) Employer’s liability insurance in the amount of $1 million per accident or per employee for disease.

          (iii) Commercial general liability including Products Liability and Completed Operations liability in the amount of $1 million per occurrence and $2 million in aggregate annually, or in such higher amounts as ASAP Semiconductor may on a case-by-case basis require.

           (iv) Automobile liability insurance covering third party bodily injury and property damage with a minimum of $1 million per occurrence limit, or in such higher amounts as ASAP Semiconductor may on a case-by-case basis require.

            (v) Such other insurance as ASAP Semiconductor may require.

(b) Seller shall have its insurers name ASAP Semiconductor as an additional insured on the commercial general liability and automobile liability policies for the duration of this Contract. If requested, Seller shall provide a "Certificate of Insurance" evidencing its compliance with these requirements. Insurance maintained pursuant to this clause shall be considered primary as respects the interest of ASAP Semiconductor and is not contributory with any insurance that ASAP Semiconductor may carry.

DISPUTES

(a) Any dispute arising under or in connection with this Contract with respect to the rights, duties, or obligations of the parties shall be submitted in writing for resolution to ascending levels of management of the respective parties.

(b) If a dispute cannot be resolved to both parties’ mutual satisfaction, after good faith

negotiations, within sixty (60) days from the date the written claim is received by the other

party, or such additional time as the parties agree upon in writing, either party may bring suit

in accordance with the JURISDICTION section of these Terms and Conditions.

(c) Pending any prosecution, appeal, or final decision referred to in this clause, or the settlement

of any dispute arising under this Contract, both parties agree to proceed diligently, with their

respective obligations under this Contract.

(d) In no event will ASAP Semiconductor be liable for anticipated profits, incidental or consequential damages. ASAP Semiconductor’s liability on any claim, of any kind and for any loss or damage arising out of, connected with or resulting from this Contract, or from the performance or breach thereof shall, in no case, exceed the Contract price of the Articles that gave rise to the claim. ASAP Semiconductor shall not be liable for penalties of any description. Any action resulting from any breach on the part of ASAP Semiconductor as to the Articles delivered hereunder must be commenced within one year after the cause of action has accrued.

ORDER OF PRECEDENCE

Any inconsistencies in this Contract will be resolved in the following order of precedence: (1) the face of the Purchase Order including any continuation sheets and information listed thereon; and (2) these Terms & Conditions.

JURISDICTION

All agreements made by ASAP Semiconductor are made in California and shall be interpreted under the laws of California, not including the state’s conflict of laws provisions.  Both parties agree that any suit brought in relation to this agreement, or to enforce any clause of this agreement, shall be brought in a trial court in closest proximity to ASAP Semiconductor’s headquarters.  Both parties agree to be subject to the personal jurisdiction and venue of that court.

INDEPENDENT CONTRACTOR

Seller is an independent contractor in all respects with regards to this Contract. The employees used by Seller to perform under this Contract shall be Seller's employees exclusively and without any relation whatsoever to ASAP Semiconductor.  Nothing contained in this Contract shall be deemed to create a partnership, joint venture, agency or other relationship other than that of a contractor and customer.

RECORD RETENTION

Unless a longer period is specified in this Contract or by law or regulation, Seller must retain all records related to this Contract for ten (10) years from the date of final payment received by Seller. Records related to this Contract include, but are not limited to, financial, proposal, procurement, specifications, production, inspection, test, quality, shipping and export, and certification records. At no additional cost, Seller shall timely provide access to such records to the U.S. Government and/or ASAP Semiconductor upon request.

COMPLIANCE WITH LAWS

The parties to this Contract shall comply with all applicable laws, rules, regulations and public policies that prohibit unethical conduct, including bribery, corruption, fraud, money-laundering, and human trafficking, among other things (“Laws”).  For the purposes of this Contract, applicable Laws include those of the United States and any other jurisdiction that may exercise jurisdiction over the parties in the performance of this Contract.  The parties shall not directly or indirectly give, offer, promise, authorize, or allow to be given, offered, , or promised, anything of value to an official or employee of any government, state-owned enterprise, international organization including subdivisions thereof, or entities acting on behalf of a government, state-owned enterprise, international organization, or subdivision thereof (any such employee or official referred to collectively as “Official”), while knowing or having reason to know that such thing of value is to be given, offered, or promised to an Official (including political parties or officials thereof or candidates for foreign office)  in order to: (i) influence any official act or decision of such Official, or (ii) induce such Official to use his/her influence to affect or influence any act or decision of any government (or any subdivision thereof), or (iii) assist the parties in obtaining or retaining business, or in directing business to any person or obtain an unfair advantage for the parties in any respect.

Should either party violate any of the Laws then: (i) the other party shall have the right to immediately terminate the Contract for default; (ii) the other party shall have a right of action against the offending party for the recovery of any monetary payment(s) or thing(s) of value made or given by the offending party in breach of such Laws; and (iii) the offending party shall indemnify the other party for any penalty, loss or expenses incurred by the other party as a result of the offending party's breach of any of its obligations under this section.

HAZARDOUS MATERIALS

If this Contract involves delivery of any hazardous material, packaging and shipment of such material must be made in accordance with Hazardous Goods Regulations Title 49 C.F.R. and any other regulations and standards applicable to the shipment and handling of such hazardous material. Seller must provide via mail or email in advance of shipment the most recent version of the Material Safety Data Sheet (MSDS) or Safety Data Sheet (SDS) applicable to the hazardous material. By agreeing to this Contract, the Seller certifies: (1) Compliance with this section; (2) an up to date MSDS/SDS will be submitted prior to delivery of any hazardous material; or (3) that no hazardous material will be delivered, as applicable.

GENERAL

· The headings used in this Contract are inserted for the convenience of the parties and shall not define, limit, or describe the scope or the intent of the provisions of this Contract.

· The laws of the State of California will exclusively govern any dispute between ASAP Semiconductor and Seller without regard to any conflict of laws principles. The United Nations Convention for the International Sale of Goods shall not apply to any transaction between ASAP Semiconductor and Seller.

· ASAP Semiconductor and Seller are independent business entities and agree that this Contract does not establish a joint venture or partnership.

· The failure of ASAP Semiconductor to object to any document, communication, or act of Seller, or any breach of any provision of these Terms and Conditions by Seller, will not be deemed a waiver of any of these Terms and Conditions.

· The unenforceability of any provision of these Terms and Conditions will not affect the remainder of the Terms and Conditions.

· Seller and ASAP Semiconductor will comply with applicable laws and regulations.

· The purchase of Articles by ASAP Semiconductor are made expressly conditional upon the acceptance of these Terms and Conditions.  No amendments or additions to the Terms and Conditions of the transaction will be accepted unless they are in writing and signed by authorized representatives of ASAP Semiconductor and Seller. Preprinted Terms and Conditions on any Seller document and/or the failure of ASAP Semiconductor to object to conflicting or additional terms will not alter, diminish, or modify the provisions of these Terms and Conditions, and any such conflict of terms are hereby deemed to be resolved in favor of the ASAP Semiconductor Terms and Conditions.

· The parties agree that if this Contract is transmitted electronically neither party shall contest the validity of this Contract, or any acknowledgement thereof, on the basis that this Contract or acknowledgement contains an electronic signature or other electronic indicia of acceptance or acknowledgment.

· This Contract shall constitute the entire agreement and understanding between the parties hereto and shall supersede and replace any and all prior or contemporaneous representations, agreements or understandings of any kind, whether written or oral, relating to the subject matter hereof.

INCLUSION OF FAR/DFARS CLAUSES

If a government contract number is referenced on the face of the Purchase Order, whether or not ASAP Semiconductor is the prime contractor or a subcontractor at any tier, Seller agrees to the incorporation of all applicable FAR and DFARS clauses flowed down by ASAP Semiconductor in its Federal Acquisition Regulation (FAR) and Defense Federal Acquisition Regulation Supplement (DFARS) Flowdown Clauses document, available at https://www.asapsemi.com/far-and-dfar-flow-downs.pdf, which are hereby incorporated by reference as if fully set forth herein.

DEFENSE PRIORITIES AND ALLOCATIONS SYSTEMS (DPAS)

If so identified on the face of the Purchase Order, this Contract is a “rated order” certified for national defense, emergency preparedness, and energy program use, and the Seller shall follow all the requirements of the Defense Priorities and Allocations Systems (DPAS) regulation (15 C.F.R. part 700).

DEBARRED, SUSPENDED, OR PROPOSED FOR DEBARMENT

Except for COTS items, Seller represents and warrants that it is not currently debarred, suspended, or proposed for debarment or suspension by any federal or state agency.

CONFLICT MINERALS

Seller will use commercial reasonable efforts to: (i) identify whether the Articles delivered under this Contract contain tin, tantalum, gold, or tungsten; (ii) determine whether any such minerals originated in covered countries as defined in Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Act”); and (iii) perform appropriate due diligence on its supply chain in support of ASAP Semiconductor’s obligations under the Act.

In addition, Seller shall, as soon as reasonably practicable following the completion of the calendar year, provide a completed Conflict Minerals Reporting Template, using the form found at https://www.responsiblemineralsinitiative.org/reporting-templates/cmrt/. If requested, Seller will promptly provide information or representations that ASAP Semiconductor reasonably believes are required to meet its conflict minerals compliance obligations.

EQUAL EMPLOYMENT OPPORTUNITY

The parties shall comply with all Federal equal employment opportunity obligations under 41 CFR 60-1.4(a), 60-300.5(a), 60-741.5(a) and federal labor law obligations under 29 CFR part 471, appendix A and subpart A.

The Seller and its subcontractors at any tier shall abide by the requirements of 41 CFR 60-1.4(a), 60-300.5(a) and 60-741.5(a).  These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on race, color, religion, sex, national origin, sexual orientation and gender identify.  Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability.