GLASS BOX TECHNOLOGY, LLC.

TERMS AND CONDITIONS OF SALE

The sale of products and services (“Products”) by Glass Box Technology, LLC.  (“Glass Box”) 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 Glass Box’s failure to object to conflicting or additional terms will not change or add to the terms of this Agreement.

1. ORDERS. Quotes from Glass Box are invitations to enter into 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 Glass Box.  Contracts between Customer and Glass Box are formed upon Glass Box’s written acceptance or execution of Customer’s Order and shall be subject to this Agreement.
2. PRICES. All pricing contained in Glass Box quotes are subject to change at any time.
3. Taxes and Duties. All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any Governmental Authority on any amounts payable by Customer. Customer shall be responsible for all such charges, costs, and taxes; provided, that, Customer shall not be responsible for any taxes imposed on, or with respect to, Glass Box’s income, revenues, gross receipts, or assets.
4. 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 Glass Box.  On any past due invoice, Glass Box may charge interest from the payment due date to the date of payment at the lesser of (i) 18% per annum; or (ii) the maximum amount that is allowed under applicable law.  Glass Box shall be entitled to receive reasonable attorneys’ fees incurred in the collection of any past due invoice.  At any time, Glass Box 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.  Glass Box may apply payments to any of Customer’s accounts.  If Customer defaults on any payment under this Agreement, Glass Box 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 Glass Box 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.
5. Security Interest. As collateral security for the payment of the purchase price of the Products, Customer hereby grants to Glass Box a lien on and security interest in and to all of the right, title, and interest of Customer in, to, and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the California Uniform Commercial Code.
6. DELIVERY AND TITLE. Unless otherwise specified by Glass Box in writing, all deliveries by Glass Box are EXW Glass Box’s distributor’s warehouse (INCOTERMS 2020) (the “Delivery Point”).  Title and risk of loss shall pass to Customer upon delivery of the Products to the carrier at the Delivery Point.  Glass Box’s delivery dates are estimates only and subject to timely receipt of supplies by Glass Box.  Glass Box is not liable for delays in delivery.  Glass Box 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.
7. Failure to Accept Delivery. If for any reason Customer fails to accept delivery of any of the Products on the date fixed pursuant to Glass Box’s notice, or if Glass Box is unable to deliver the Products at the Delivery Point on such date because Customer has not provided appropriate instructions, documents, licenses or authorizations: (i) the Products shall be deemed to have been delivered; and (ii) Glass Box, at its option, may store the Products until Customer picks them up, whereupon Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
8. Non-Delivery Claims. Glass Box shall not be liable for any non-delivery of Products unless Customer gives written notice to Glass Box of the non-delivery within five (5) days of the date when the Products would in the ordinary course of events have been received. Any liability of Glass Box for non-delivery of the Products shall be limited to replacing the Products within a reasonable time or adjusting the invoice respecting such Products to reflect the actual quantity delivered.
9. INSPECTION AND RETURNS.
10. Inspection Period. Customer shall inspect the Products within five (5) days of receipt (“Inspection Period”). Customer will be deemed to have accepted the Products unless it notifies Glass Box in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Glass Box.   “Nonconforming Goods” means the following: (i) product shipped is different than identified in Customer’s Order; or (ii) product’s label or packaging incorrectly identifies its contents.  Claims regarding defects in materials or workmanship are handled exclusively under Section 6 (Glass Box’s Limited Warranty).
11. Remedy and Returns. If Customer timely notifies Glass Box of any Nonconforming Goods, Glass Box shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Products, or (ii) credit or refund the Price for such Nonconforming Goods. Customer must obtain a Return Material Authorization (“RMA”) number from Glass Box prior to returning any Nonconforming Goods.  Customer shall ship, at its expense and risk of loss, the Nonconforming Goods to the facility designated by Glass Box.  If Glass Box exercises its option to replace Nonconforming Goods, Glass Box shall, after receiving Customer’s shipment of Nonconforming Goods, ship to Customer, at Customer’s expense and risk of loss, the replaced Products to the Delivery Point.
12. Exclusive Remedy. The remedies set forth in this Section 5 are Customer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under this Section 5 or Section 6, all sales of Products to Customer are final and Customer has no right to return Products purchased under this Agreement to Glass Box.
13. GLASS BOX LIMITED WARRANTY. Glass Box will pass through to Customer any transferable Product warranties, indemnities, and remedies provided to Glass Box, by its distributor or the manufacturer, including any warranties and indemnities for intellectual property infringement.  If required by law, Glass Box 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.  Glass Box warrants that, for a period of 30 days after delivery of the Products to Customer, any value-added work performed by Glass Box on Products will conform to Customer’s specifications that are in writing and accepted by Glass Box, and Customer shall be deemed the manufacturer of such value-added Products. 

TO THE EXTENT PERMITTED BY LAW, GLASS BOX MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED.  GLASS BOX EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, INCLUDING WITH RESPECT TO ANY VALUE-ADDED WORK PERFORMED BY GLASS BOX. 

Customer’s sole remedies for breach of Glass Box’s warranty are, at Glass Box’s choice: (a) repair the Products; (b) replace the Products at no cost to Customer; or (c) refund Customer the purchase price of the Products.  In the event that any Product is determined to be defective under the manufacturer’s warranty, Customer shall follow the Product manufacturer’s return procedures.  If requested by Customer, Glass Box agrees to use commercially reasonable efforts to assist Customer in effecting the Product return under the manufacturer’s warranty.

1. Warranty Exclusions. Glass Box shall not be liable for a breach of the warranty if: (i) the defect arises because Customer failed to follow Glass Box’s or the manufacturer’s oral or written instructions as to the storage, installation, commissioning, use, or maintenance of the Products; or (ii) Customer alters or repairs such Products without the prior written consent of Glass Box.
2. LIMITATION OF LIABILITY. TO THE EXTENT PERMITTED BY LAW, NEITHER GLASS BOX 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 GLASS BOX 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, Glass Box’s total liability in any event will not exceed USD $10,000 or the equivalent thereof.  Customer will indemnify, defend and hold Glass Box harmless from any claims based on: (i) Glass Box’s compliance with Customer’s designs, specifications, or instructions, (ii) modification of any Product by anyone other than Glass Box, or (iii) use of Products in combination with other products or in violation of Section 9 below.

8. FORCE MAJEURE. Glass Box 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 specifications.  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. CONFIDENTIALITY. All non-public, confidential or proprietary information of Glass Box, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing (including non-published pricing and other purchasing information contained in any quote), discounts, or rebates, disclosed by Glass Box to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Glass Box in writing.  Upon Glass Box’s request, Customer shall promptly return all documents and other materials received from Glass Box.  Glass Box shall be entitled to injunctive relief for any violation of this Section.  This Section does not apply to information that is: (a) in the public domain; (b) known to Customer at the time of disclosure; or (c) rightfully obtained by Customer on a non-confidential basis from a third party.
11. DATA PRIVACY AND PERSONALLY IDENTIFIABLE INFORMATION. Both parties shall comply with all applicable data protection and privacy laws.  To the extent Glass Box processes any Personally Identifiable Information (PII) of Customer’s employees or contacts necessary for performing the services or fulfilling Orders, Glass Box agrees to treat such PII as confidential, will safeguard such information from unauthorized disclosure, and agrees not to appropriate such PII for Glass Box’s own use or to disclose such information to third parties except as necessary to perform its obligations under this Agreement.  Glass Box agrees to notify Customer promptly upon discovering a data breach involving Customer PII and shall comply with the disclosure requirements imposed by California law, including California Civil Code Sections 1798.29 and 1798.82.
12. SERVICES AND CUSTOMER OBLIGATIONS.
13. Customer Cooperation and Delays: Customer shall cooperate with Glass Box in all matters relating to the provision of services or value-added work and provide access, information, approvals, or authorizations reasonably necessary for Glass Box to perform. If Glass Box’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, Glass Box shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
14. Intellectual Property in Services: Customer acknowledges that all Intellectual Property Rights of Glass Box are the sole property of Glass Box or its licensors. All intellectual property rights in or relating to any work product, developments, documentation, or tools created or used by Glass Box during the performance of services or value-added work shall be owned by Glass Box. Glass Box grants Customer a limited, non-exclusive license to use such work product solely for its internal business purposes in connection with the Products.
15. TERMINATION. In addition to any remedies that may be provided under this Agreement, Glass Box may terminate this Agreement or any outstanding Order with immediate effect upon written notice to Customer, if Customer: (a) fails to pay any amount when due under this Agreement and such failure continues for ten (10) days after Customer’s receipt of written notice of nonpayment; (b) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
16. EXPORT/IMPORT. Certain Products and related technology and documentation sold by Glass Box 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 documentation.  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.
17. 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 Glass Box on an “AS IS” basis and does not form a part of the properties of the Product.  Glass Box 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.  Glass Box recommends Customer validate any Product information before using, relying or acting on such information.  All Product information is subject to change without notice.  Glass Box is not responsible for typographical or other errors or omissions in Product information.
18. GOVERNMENT CONTRACTS. Glass Box is a distributor of “Commercial Items” as defined in FAR 2.101. Glass Box agrees only to the clauses in the Federal Acquisition Regulation (“FAR”) and Defense Federal Acquisition Regulation (“DFAR”) that are required to be inserted in subcontracts for commercial items as set forth in FAR 52.244-6(c)(1), FAR 52.212-5(e)(1), and DFAR 252.244-7000 if it is a subcontract under a Department of Defense prime contract. In accordance with FAR 12.211, Customer will receive only those rights in technical data customarily provided to Glass Box by the manufacturers. In no event will this be interpreted as providing to Customer unlimited rights in data, software, or intellectual property rights provided by the manufacturers or any other third party. Glass Box specifically rejects the flow down of the requirements of the: (i) Trade Agreements Act, FAR 52.225-5 or DFARS 252.225-7021; (ii) the Buy American Act, FAR 52.225-1 or DFARS 252.225-7001; and (iii) any Preference for Domestic Specialty Metals regulation.
19. 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 Glass Box.  Customer’s acceptance of Glass Box’s acknowledgment request or Glass Box’s specification of details with respect to Electronic Purchase Orders via writing, email or other electronic data interchange shall be binding on Customer.
20. GENERAL.
21. Governing Law and Venue. 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 Agreement.  The United Nations Convention for the International Sale of Goods shall not apply.
22. Assignment. Customer may not assign this Agreement without the prior written consent of Glass Box. This Agreement is binding on successors and assigns.
23. Modification. This Agreement can only be modified in writing signed by authorized representatives of both Glass Box and Customer. Such modification shall only be valid to the extent it expressly provides for modification of this Agreement.
24. Relationship. Glass Box and Customer are independent contractors and agree that this Agreement does not establish a joint venture, agency relationship, or partnership.
25. Waiver. Glass Box’s failure to object to any document, communication, or act of Customer will not be deemed a waiver of any of these terms and conditions. No waiver by Glass Box of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Glass Box.
26. Severability. The unenforceability of any provision of this Agreement will not affect the remainder of the terms or conditions.
27. Third-Party Rights. 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.
28. Compliance with Laws. Customer and Glass Box will comply with applicable laws and regulations.
29. Electronic Signatures. The parties agree to use electronic signatures and agree that any electronic signatures will be legally valid, effective, and enforceable.
30. Survival. Provisions of this Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Terms of Payment, Glass Box’s Limited Warranty, Limitation of Liability, Confidentiality, Data Privacy and PII, and General.