1.        ORDERS.  Orders shall be initiated by Client issuing Client’s standard purchase order form, other similar document or communication, or other form approved by Calence, or otherwise placing an order by electronic means acceptable to Calence (each, an “Order”).  Client shall be deemed to have accepted these terms and conditions upon initiation of the Order, and the Order shall be deemed to incorporate these terms and conditions.  Calence specifically objects to any additional terms being added through a purchase order or other similar document or communication (a “Purchase Order”), and Client and Calence agree that any additional terms contained in a Purchase Order shall not become part of the agreement between the parties and specifically that these terms and conditions shall supersede any conflicting, contrary, or additional terms and conditions in a Purchase Order.  All Orders are subject to credit approval and to acceptance by Calence, which may be evidenced by either a written confirmation of acceptance sent by mail, facsimile, or other electronic means; by shipping the Product; or by commencement of the Maintenance or Services.  No Orders may be cancelled or rescheduled without Calence’s consent, which may be given in Calence’s sole discretion.  If Calence consents to the cancel or reschedule of an Order, then such cancellation or reschedule shall be subject to a charge of 15% of the total amount due for the affected Items.  Calence reserves the right to allocate sales of Items among its customers in its sole discretion. 

2.        PRICES.  Prices shall be as specified by Calence and shall be applicable for the period specified in Calence’s quote. If no period is specified, prices shall be applicable for 30 days.  Notwithstanding the foregoing, prices shall be subject to increase in the event of an increase in Calence’s costs or other circumstances beyond Calence’s reasonable control.  Prices are exclusive of taxes, impositions and other charges, all of which shall be paid by Client in addition to the price of the Items. 

3.        TERMS OF PAYMENT.  Amounts due for each Product may be invoiced by Calence upon delivery of the Product to the carrier at the point of origin; as such, an Order for multiple Products may result in multiple invoices.  Amounts due for Maintenance and Services may be invoiced upon Calence’s acceptance of the applicable Order, or Calence’s receipt of the corresponding invoice from the third party provider of such Maintenance or Services.  Payment shall be net 30 days from date of invoice or as otherwise specified by Calence. Client agrees to pay the entire net amount of each invoice from Calence pursuant to the terms of each such invoice without offset or deduction.  Client shall pay interest on any invoice not paid when due from the due date to the date of payment at the rate of one 1.5% per month or such lower rate as may be the maximum allowable by law.  If Calence believes in good faith that Client's ability to make payments may be impaired, or if Client shall fail to pay any invoice when due, Calence may suspend or cancel delivery/performance of any Order or any remaining balance thereof.  If an invoice is not paid when due, Calence also may pursue any legal or equitable remedies, and recover all collection costs and reasonable attorneys fees.

4.        LEASING OPTION.  Calence may from time to time, in its sole discretion, provide Client with the option of leasing Items through a third party instead of directly purchasing such items from Calence.  Client must provide Calence with notice and the identity of the lessor before Calence accepts the applicable Order.  The exercise of this option is subject to acceptance by Calence on terms and conditions established by Calence in its sole discretion.  Client shall be solely responsible for the lease transaction, and shall remain liable for all of its payment obligations and other obligations hereunder.

5.        SECURITY INTEREST.  Client hereby grants to Calence a security interest in all Products purchased hereunder, together with any proceeds thereof.  Client hereby irrevocably appoints Calence and/or its designee as its attorney-in-fact to execute and file any financing statements or other documents that are necessary to perfect Calence’s security interest.  As to each Product, Calence’s security interest shall terminate when Calence has received all amounts due to Calence for that Product.

6.        DELIVERY AND TITLE. All shipments by Calence are F.O.B. point of origin and all transportation charges shall be paid by Client in addition to the price of the Products. Subject to Calence's right of stoppage in transit, delivery of the Products to the carrier shall constitute delivery to Client and title and risk of loss shall thereupon pass to Client.  Selection of the carrier and delivery route shall be made by Calence unless specified by Client.  Calence shall use reasonable efforts to initiate shipment and schedule delivery as close as possible to Client’s requested delivery dates.  Client acknowledges that delivery dates provided by Calence are estimates only and that Calence is not liable for failure to deliver on such dates.  Calence reserves the right to make deliveries in installments.  Delivery of a quantity that varies from the quantity specified shall not relieve Client of the obligation to accept delivery and pay for the Products delivered.  Delay in delivery of one installment shall not entitle Client to cancel other installments.

7.        ACCEPTANCE AND RETURNS.   All sales are final, except only with respect to Products that do not meet applicable manufacturer's specifications or that are not identified in the Order.   Inspection and acceptance shall be Client’s responsibility.  Client is deemed to have accepted the Products unless written notice of rejection is received by Calence within 10 days after delivery of the Products.  Client waives any right to revoke acceptance thereafter.  Client must report any discrepancy in shipment quantity or damage and request a Return Material Authorization (“RMA”) within 10 days after delivery.  No return of Products shall be accepted by Calence without an RMA and an associated number, which may be issued by Calence in its sole discretion.  Returned Products must be in their original, unaltered, undamaged condition, and must be in original manufacturer’s shipping cartons complete with all packing materials.  All Products for return shall be returned freight prepaid in the manner specified in the RMA.  If returned Products are claimed to be defective, a complete description of the nature of the defect must be included with the returned Products.  Products not eligible for return shall be returned to Client, freight collect.  

8.        FORCE MAJEURE.  Calence shall not be liable for failure to fulfill its obligations herein or for delays in delivery or performance due to causes beyond its reasonable control.  Calence’s time for performance of any such obligation shall be extended for the time period of such delay, or Calence may, at its option, cancel any Order or remaining part thereof, without liability, upon notice to Client.

9.        ASSIGNMENT AND DISCLAIMER OF WARRANTIES.  ALL ITEMS ARE PROVIDED BY CALENCE “AS IS.” CALENCE MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE ITEMS.  IN PARTICULAR, CALENCE MAKES NO WARRANTY RESPECTING MERCHANTABILITY, SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE, TITLE, OR NON-INFRINGEMENT.  Calence hereby transfers to Client, to the extent transferable, whatever transferable warranties and indemnities Calence receives from the manufacturer or provider of the Item, including those respecting patent infringement.     

10.     LIMITATION OF LIABILITIES.  CLIENT SHALL NOT BE ENTITLED TO, AND CALENCE SHALL NOT BE LIABLE FOR, ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE, EVEN IF CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  CLIENT'S RECOVERY FROM CALENCE FOR ANY CLAIM SHALL NOT EXCEED CLIENT'S PURCHASE PRICE FOR THE PRODUCT GIVING RISE TO THE CLAIM, OR THE AMOUNTS PAID BY CLIENT FOR THE MAINTENANCE OR SERVICES GIVING RISE TO THE CLAIM THAT WERE PROVIDED DURING THE 6 MONTHS PRECEDING THE CLAIM, IRRESPECTIVE OF THE NATURE OF THE CLAIM, WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE.  CALENCE SHALL NOT BE LIABLE FOR, AND CLIENT SHALL INDEMNIFY, DEFEND AND HOLD CALENCE HARMLESS FROM, ANY CLAIMS BASED ON CALENCE’S COMPLIANCE WITH CLIENT’S DESIGNS, SPECIFICATIONS OR INSTRUCTIONS, OR MODIFICATION OF ANY PRODUCTS BY PARTIES OTHER THAN CALENCE, OR USE IN COMBINATION WITH OTHER PRODUCTS.

11.     USE OF PRODUCTS IN CERTAIN APPLICATIONS. Products sold by Calence are not designed, intended, or authorized for use in life support, life sustaining, nuclear, or other applications in which the failure of such Products could reasonably be expected to result in personal injury, loss of life or catastrophic property damage. If Client uses or sells the Products for use in any such applications: (i) Client acknowledges that such use or sale is at Client’s sole risk; (ii) Client agrees that Calence and the manufacturer of the Products are not liable, in whole or in part, for any claim or damage arising from such use; and (iii) Client agrees to indemnify, defend and hold Calence and the manufacturer of the Products harmless from and against any and all claims, damages, losses, costs, expenses and liabilities arising out of or in connection with such use or sale.

12.     EXPORT CONTROL.  The sale, resale or other disposition of Products and any related technology or documentation are subject to the export control laws, regulations and orders of the United States, and may be subject to the export and/or import control laws and regulations of other countries.  Client agrees to comply with all such laws, regulations and orders and acknowledges that it shall not directly or indirectly export any Products to any country to which such export or transmission is restricted or prohibited.  Client acknowledges its responsibility to obtain any license to export, re-export or import as may be required.

13.     INTELLECTUAL PROPERTY.  Software or other intellectual property included in an Order is provided by Calence to Client subject to the applicable copyright and user license, the terms and conditions of which may be set forth in a license agreement accompanying such software or other intellectual property.  Nothing herein shall be construed to grant any rights or license to use any software or other intellectual property in any manner or for any purpose not expressly permitted by such license agreement.  Without limiting the generality of the foregoing, Client is expressly prohibited from using any software purchased from Calence other than with Products for which applicable Services and license fees have been paid.

14.     CONFIDENTIALITY.  Client agrees to hold information designated in writing as confidential or proprietary by Calence in strictest confidence and not to copy, reproduce, sell, assign, license, market, transfer or otherwise disclose such information to third parties or to use such information for any purpose whatsoever, except to perform the Client’s obligations hereunder, and to advise Client’s employees, agents, contractors, and representatives of their obligations to keep such information confidential.  Client shall take reasonable precautions to protect the confidentiality of such information, at least as stringent as Client takes to protect its own confidential information.  Nothing herein transfers to Client any title to or ownership rights in any such information; and, upon written request of Calence, Client shall promptly return or delete any  such information which it has in its possession.

GENERAL.  These terms and conditions may only be waived or modified by a written agreement executed by duly authorized representatives of Client and Calence.  No rights, duties, agreements or obligations hereunder may be assigned or transferred by Client without the prior written consent of Calence.  The waiver of any provision hereof or of any breach or default hereunder shall not be deemed a waiver of any other provision hereof or breach or default hereunder.  In the event any provision of hereof is held by a tribunal of competent jurisdiction to be contrary to law, the remaining provisions will remain in full force and effect. These terms and conditions shall be governed by and construed in accordance with the laws of the State of Arizona without regard to choice of law principles.  No Federal Acquisition Regulations shall be construed to apply to Calence without Calence’s written agreement thereto.  The United Nations Convention for the International Sale of Goods shall not apply.

Posted on July 9, 2008, at 1:00 p.m.

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