Digital Dot's Terms and Conditions

TABLE OF CONTENTS:

1. Applicability; Acceptance of Terms.
2. Conditions Precedent.
3. Standard Payment Terms.
4. Delivery of Goods and Performance of Services.
5. Title and Risk of Loss.
6. Buyer’s Acts or Omissions.
7. Quotations; Pricing.
8. Change Orders; Cancellation.
9. Non-Warranty Returns.
10. Limited Warranty.
11. Limitation of Liability.
12. Compliance with Law.
13. Digital Dots Workplace Requirements.
14. Termination.
15. Waiver.
16. Intellectual Property.
17. Confidential Information.
18. Force Majeure.
19.  Assignment.
20. Relationship of the Parties.
21. No Third-Party Beneficiaries.
22. Governing Law.
23. Submission to Jurisdiction.
24. Notices.
25. Order of Precedence.
26. Severability.
27. Survival.
28. Amendment and Modification.

SCHEDULES AND ADDENDUMS

• Schedule 1: Standard Payment Terms
• Schedule 2: Conditions of Limited Warranty
• Schedule 3: Digital Dots Workplace Requirements

1. Applicability; Acceptance of Terms. These terms and conditions of sale (these
   “Terms”) are the only terms that govern the sale of the tangible and non-tangible goods (“Goods”) and services (“Services”) by Digital Dots, Inc., a California corporation (“Digital Dots”) to the buyer (“Buyer”) named on the accompanying written sales order
   acknowledgement from Digital Dots (the “Sales Order Acknowledgement”). Such Terms
   and, if applicable, any accompanying Sales Order Acknowledgement will comprise and
   constitute the entire agreement between the parties as to any order (“Order”) and will
   supersede any prior or contemporaneous understandings, agreements, representations, warranties and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted a purchase order. Fulfillment of an Order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms. Digital Dots’ commencement of performance and/or delivery shall not constitute a waiver of these Terms. Upon the issuance of a Sales Order Acknowledgement by Digital Dots, Buyer will be construed to have accepted Digital Dots’ Terms.
   
2. Conditions Precedent. Digital Dots’ obligations under these Terms are subject to the
   express condition precedent that Buyer shall fully perform its obligations under these
   Terms, subject to any written waiver by Digital Dots which shall be at Digital Dots’ sole
   discretion.
   
3. Standard Payment Terms. Digital Dots’ Standard Payment Terms are attached
   hereto as Schedule I and are incorporated herein.
   
4. Delivery of Goods and Performance of Services.
   • A: Delivery of Goods. Digital Dots shall attempt to deliver the Goods on or about the times requested by Buyer and agreed by Digital Dots, although time shall not be of the essence and delivery shall be subject to availability of finished Goods. Digital Dots shall not be liable for any delays, loss, or damage in transit. Any failure by Digital Dots to make shipment as scheduled or requested shall not constitute cause for cancellation. Unless otherwise agreed in writing by the parties, Digital Dots shall deliver the Goods to the delivery location specified in the Sales Order Acknowledgement (the “Delivery Point”). Unless otherwise agreed by Digital Dots and Buyer in a Sales Order Acknowledgement, Buyer shall take delivery of the Goods immediately upon delivery to the Delivery Point. For freight deliveries, delivery of Goods shall be made EXW Delivery Point Incoterms® 2020. Digital Dots may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of an Order. If for any reason Buyer fails to accept delivery of any of the Goods on the date the Goods have been delivered at the Delivery Point, or if Digital Dots is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Digital Dots, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage, and insurance).
   • B: Performance of Services. With respect to the Services, Buyer shall (i) cooperate with Digital Dots in all matters relating to the Services and provide such access to Buyer’s premises, and such office accommodation and other facilities as may reasonably be requested by Digital Dots, for the purposes of performing the Services; (ii) respond promptly to any Digital Dots’ request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Digital Dots to perform Services in accordance with the requirements of these Terms; (iii) provide such Buyer materials or information as Digital Dots may request to carry out the Services in a timely manner and ensure that such Buyer materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
     
5. Title and Risk of Loss. Title and risk of loss pass to Buyer upon shipment of the Goods to Buyer. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Digital Dots a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Goods, 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 applicable state’s Uniform Commercial Code.
   
6. Buyer’s Acts or Omissions. If Digital Dots’ performance of its obligations under these Terms is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants, or employees, Digital Dots shall not be deemed in breach of its obligations under these Terms or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay.
   
7. Quotations; Pricing. Quotations for Goods are valid for ten (10) calendar days from date of issuance. Orders are effective only upon the issuance of a Sales Order Acknowledgement. All prices are expressed in US dollars unless expressly stated otherwise. Prices, models, part numbers, and specifications are subject to change without notice. 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 local, state, or federal governmental authority (each a “Governmental Authority“) on any amounts payable by Buyer.
   
8. Change Orders; Cancellation. 
   • A. Change Orders. Once Digital Dots issues a Sales Order Acknowledgement, an Order may not be altered in whole or in part without the execution of a written change order signed by both Digital Dots and Buyer (“Change Order“). Buyer acknowledges and agrees that any change in scope to an Order may cause a change in pricing or cost and the time required for performance and completion, and Digital Dots shall have discretion to make reasonable adjustments to the price of the Order. In the event that a Change Order is not requested by Buyer, but (i) Buyer or a third party is responsible for delays in accordance with Section 6 of these Terms, (ii) Buyer provided incorrect or inaccurate information to generate a purchase order request, which Digital Dots relied upon to generate the Sales Order Acknowledgement, or (iii) Digital Dots reasonably determines that further Services and/or Goods are required to complete an Order or portion of an Order, Digital Dots shall be entitled to suspend performing Services until a Change Order is issued and Digital Dots shall not be responsible for any resulting delays, cost of additional Goods or materials, or the failure to complete an Order. 
   • B. Cancellation. Once Digital Dots issues a Sales Order Acknowledgement, an Order may not be cancelled without Buyer’s written request to Digital Dots to cancel the Order. All cancellations will be subject to the following cancellation fees: (i) for Goods Orders cancelled less than thirty (30) calendar days in advance of shipment, where the relevant Goods are not specially modified or custom products, Buyer shall be liable to Digital Dots for a cancellation charge equal to Digital Dots’ actual costs incurred in connection with that portion of the Order that is cancelled or the downpayment, whichever is greater; (ii) for Goods Orders cancelled less than sixty (60) calendar days in advance of shipment, where the relevant Goods are specially modified or custom products, Buyer shall be liable to Digital Dots for a cancellation charge equal to Digital Dots’ actual costs incurred in connection with that portion of the Order that is cancelled or the downpayment, whichever is greater; and (iii) for Services Orders cancelled less than fourteen (14) calendar days prior to the beginning of the first day of performance of Services, Buyer shall be liable to Digital Dots for a cancellation charge equal to any downpayment made by Buyer. Digital Dots shall not be responsible for scope gaps, hazards, or malfunctions caused by a premature termination of labor by Buyer. Any canceled Orders that are subsequently requested by Buyer are subject to price change and may not be offered at the previously offered rate.
     
9. Non-Warranty Returns. 
   • A: Buyer expressly agrees and acknowledges that Goods which are not specially modified or custom products are subject to a restocking fee of ten percent (10%) of the value of the Goods being returned plus freight or shipment costs. 
   • B: Goods may only be exchanged, subject to a Change Order issued in accordance with Section 8 of these Terms and any vendor or manufacturer written approval. Digital Dots shall not be responsible for any additional costs incurred resulting from an exchange.
     
10. Limited Warranty. Digital Dots’ Conditions of Limited Warranty are attached hereto as Schedule II and are incorporated herein.
    
11. Limitation of Liability. 
    • A: IN NO EVENT SHALL DIGITAL DOTS BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT DIGITAL DOTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. 
    • B. IN NO EVENT SHALL DIGITAL DOTS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO DIGITAL DOTS FOR THE GOODS AND SERVICES SOLD HEREUNDER.
      
12. Compliance with Law. Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under these Terms. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under these Terms or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Digital Dots may terminate these Terms if any governmental authority imposes antidumping or countervailing duties or any other duties or penalties on the Goods. Unless otherwise expressly agreed in writing, Digital Dots is not responsible to comply with any local or national emergency and power regulations and Buyer shall be responsible for such compliance.
13. Digital Dots Workplace Requirements. The terms of Digital Dots’ Workplace Requirements as set out in Schedule III shall be incorporated into this Agreement.
    
14. Termination. In addition to any remedies that may be provided under these Terms, Digital Dots may terminate these Terms with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under these Terms and such failure continues for thirty (30) calendar days after the date of Digital Dots’ written notice of nonpayment; (b) has not otherwise performed or complied with any of these Terms, 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.
    
15. Waiver. No waiver by Digital Dots of any of the provisions of these Terms is effective unless explicitly set forth in writing and signed by Digital Dots. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from these Terms operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
    
16. Intellectual Property.
    • A: Buyer agrees that the sale and purchase of Digital Dots products does not confer on Buyer any license or rights under any patents, trademarks, copyright, inventions, discoveries, improvements, innovations, ideas, trademarks (including all logos, slogans, and other customized properties), trade dress, and Internet domain names, computer software and computer programs (including all code and programming instructions) whether or not patentable, copyrightable, or registrable (including all data and records pertaining thereto) (collectively, “Intellectual Property“) which is the property of Digital Dots. Buyer hereby assigns, conveys, and transfers all rights, title, and interest (including intellectual property rights) to Digital Dots all Intellectual Property (including all data and records pertaining thereto) which Buyer may, individually or jointly with others, invent, discover, originate, conceive, or reduce to practice as a result of or in connection with Buyer’s agreement with Digital Dots or which may arise out of or result from Intellectual Property obtained, provided, or otherwise acquired, either directly or indirectly, by Buyer in connection with Buyer’s agreement with Digital Dots, under these Terms that relate to Buyer’s business. Such Intellectual Property is hereby the sole and exclusive property of Digital Dots. Buyer agrees to promptly and fully disclose in writing each and all such Intellectual Property to Digital Dots after they become known to Buyer, and execute any patent applications, assignments, or other instruments deemed necessary by the Buyer that relate thereto. Digital Dots shall have perpetual, exclusive control over all such Intellectual Property and Buyer agrees to cooperate fully, even after the expiration of these Terms, in a lawful manner and at the reasonable expense of Buyer in the prosecution of patent applications and any legal actions and proceedings concerning such Intellectual Property. In addition to the foregoing, any Intellectual Property made on the Buyer’s time and/or with Digital Dots equipment or resources shall be the property of Digital Dots.
    • B: Buyer will not present or publish, or submit for publication, any work resulting from the work performed under these Terms without Digital Dots express prior written consent, including but not limited to, work product or Intellectual Property. Digital Dots has sole and exclusive discretion as to whether any presentations or publications resulting under these Terms can be developed, presented or published, or submitted for publication.
    • C: Buyer further agrees not to remove, damage, destroy, or modify any trademarks (including all logos, slogans, and other customized properties) from the Goods.
      
17. Confidential Information.
    • A: All non-public, confidential or proprietary information of Digital Dots, disclosed to or known by Buyer as a result of these Terms, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, prospect and recruiting lists, costs and pricing, discounts, rebates, Trade Secrets, know-how, formulae, agreements, financial plans and arrangements, methods of operation, sales and marketing strategies, manuals, policies, plans and reports, personnel and payroll records, inventory, technology (including without limitation, technical drawings, schematics, designs, specifications, systems, schematics, algorithms, technical data, product development plans or concepts, research plans, prototypes, equipment, software, discoveries, research, other intellectual property, etc.), processes, ideas, uses, and inventions (whether or not patentable), disclosed by Digital Dots to Buyer, 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 these Terms is confidential and solely for the use of performing these Terms (“Confidential Information“). Confidential Information also includes any information derived from any of the above information and information which Digital Dots receives from a third party (e.g. customers and suppliers) and holds in strictest confidence. Such Confidential Information is the sole property of Digital Dots or a third-party and is to be held by Buyer in trust and used solely for performing these Terms. “Trade Secrets” means any information that constitutes a trade secret under applicable state and federal law.
    • B: Buyer agrees not to disclose, publish, reproduce, or make any use of any Confidential Information and agrees not to disclose or copy any Confidential Information unless authorized in advance by Digital Dots in writing.
    • C: Upon Digital Dots’ request, Buyer shall promptly return all documents and other materials concerning Confidential Information, or destroy and certify such destruction of such Confidential Information, promptly upon Digital Dots request or upon termination of these Terms. Digital Dots shall be entitled to injunctive relief for any violation of this Section 17. This Section 17does not apply to information that is: (i) in the public domain other than by a breach of this Section by Buyer or its employees or personnel; (ii) known to Buyer at the time of disclosure, other than by the breach of an obligation of confidentiality owed to Digital Dots or other than a third party acting to assist Buyer in connection with these Terms; or (iii) rightfully obtained by Buyer on a non-confidential basis from a third party; or (iv) Digital Dots authorizes the publication or disclosure of in writing. In the event that Confidential Information is required by law to be disclosed, unless sooner required by a Governmental Authority, Buyer shall first give a minimum of five (5) calendar days prior written notice to Digital Dots so that Digital Dots may seek a protective order limiting disclosure or requiring that the information and/or documents to be disclosed be used only for purposes for which the order was issued.
    • D: Buyer agrees to take at least the same precautions to ensure the protection, confidentiality and security of Digital Dots Confidential Information entrusted to it and to satisfy its obligations under these Terms as it would protect its own Confidential Information, but in no event less than a reasonable standard. Buyer shall also limit the access to such Confidential Information to only those employees or personnel having a need to know, and such employees and personnel shall be instructed concerning their obligations to maintain confidentiality.
    • E: Buyer agrees to notify Digital Dots promptly upon learning of the occurrence of any unauthorized disclosure or use of Confidential Information and will assist Digital Dots in remedying the breach. Buyer acknowledges that monetary damages may not alone be a sufficient remedy for unauthorized disclosure of Digital Dots Confidential Information and that Digital Dots shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief, without any requirement of posting a bond or other security, as may be deemed proper by a court of competent jurisdiction.
    • F: Buyer acknowledges and agrees that Digital Dots is permitted to disclose Buyer’s Confidential Information to its agents, employees, directors, representatives, subcontractors, industry specialists, government agencies and authorities, and vendors.
      
18. Force Majeure. No party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any term of these Terms (except for any obligations of Buyer to make payments to Digital Dots hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party“) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)“): (a) acts of God; (b) flood, fire, earthquake, epidemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of these Terms; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials. The Impacted Party shall give notice within ten (10) calendar days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of one hundred eighty (180) consecutive calendar days following written notice given by it under this Section, either party may thereafter terminate these Terms upon thirty (30) calendar days’ written notice.
    
19. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under these Terms without the prior written consent of Digital Dots. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under these Terms. These Terms will be assignable to, and will ensure the benefit of, Digital Dots successors and assigns, including and without limitation, successors though merger, name change, consolidation, or sale of the majority of Digital Dots stock or assets.
    
20. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
    
21. No Third-Party Beneficiaries. These Terms are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
    
22. Governing Law. Unless otherwise specified in the Sales Order Acknowledgement or other agreement between the parties, matters arising out of or relating to these Terms are governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of California.
    
23. Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to these Terms shall be instituted in the federal courts of the United States of America or the courts of the State of California in each case located in the City of Irvine and County of Orange, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
    
24. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice“) shall be in writing and addressed to the parties at the addresses set forth on the face of the Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Terms, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
    
25. Order of Precedence. If there is an inconsistency between any of the provisions of these Terms and the Sales Order Acknowledgement, the terms of the Sales Order Acknowledgement shall prevail.
    
26. Severability. If any term or provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.
    
27. Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of these Terms including, but not limited to, the following provisions: Compliance with Laws, Confidential Information (including Trade Secrets, which shall remain confidential for so long as the pertinent information or documentation remains a Trade Secret), Governing Law, Submission to Jurisdiction, and Survival.
    
28. Amendment and Modification. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.