1.   SCOPE. The terms and conditions detailed herein (including all other Phase Matrix terms and conditions referenced herein) apply to Phase Matrix’s purchase of goods and associated services (“Goods”) from Seller. “PMI” or “Buyer” means Phase Matrix, Inc. “Seller” or “You” means any individual, company or other entity that is to perform, or provide Goods under this purchase order. The purchase order to which these terms and conditions apply is only an offer by PMI as specified on the face thereof to enter into a contract. Such purchase order and these accompanying terms and conditions are collectively hereafter referred to as the "Order" or “Purchase Order”. THIS ORDER SHALL APPLY UNLESS PMI AND SELLER HAVE ENTERED INTO A SEPARATE SIGNED AGREEMENT APPLICABLE TO THE PURCHASE OF THE GOODS. By performing the Order, Seller agrees to be bound by the terms of this Order. PMI EXPRESSLY OBJECTS TO AND REJECTS, AND SELLER EXPRESSLY WAIVES, ANY TERMS AND CONDITIONS IN SELLER’S QUOTE, ORDER ACKNOWLEDGEMENT OR OTHER SIMILAR DOCUMENT. IF YOU, THE SELLER, DO NOT AGREE WITH THESE TERMS, PROMPTLY NOTIFY NI AND SUSPEND THE PERFORMANCE OF THE ORDER.

2.   PRICES AND PAYMENT.   The price paid by PMI for the Goods shall be stated on the face of this Order. Seller is not to process this Order at a price higher than shown on the face of this Order without express prior written authorization from Buyer. If Seller is not in full agreement with price and payment terms indicated herein, Seller will notify Buyer in writing before proceeding with Order. Seller will give Buyer benefit of any price reduction made by Seller during the time period of this Order, such reduction to apply on quantities undelivered as of the date of such reduction. Unless otherwise stated on this Order, payment terms shall be net thirty (30) days from PMI’s receipt of the invoice. If PMI makes any payment within ten (10) days of the receipt of the applicable invoice, PMI will receive a two percent (2%) discount from such invoice (2% 10, net 30 days).

3.  PURCHASE ORDER CONFIRMATION AND ACCEPTANCE.  All communication, technical guidance and instructions relating to this Order shall be accomplished directly between PMI and Seller. Purchase Order confirmations have to be sent back within two (2) business days from issuance of the Order from PMI.

Any of the following acts constitutes Seller's acceptance of the terms and conditions of this Order: (i) Seller's initiation of performance under this Order, (ii) Seller's acceptance of any payment by PMI hereunder or (iii) Seller’s failure to partially or fully reject such Order within two (2) business days of the issuance of an Order. Buyer in its sole discretion and with no obligation to compensate Seller may revoke the Order prior the confirmation of Seller. The contract between PMI and Seller shall only be established on the basis of PMI’s Order and Seller’s acceptance.

4.   PACKAGING, SHIPPING AND INVOICING.  In order to insure uniform packaging and minimize damage to Goods and to endeavor to secure the lowest transportation costs, all Goods purchased under this Order must be packaged in a fashion that suitably protects the Goods, including protection against electrostatic discharge and moisture as appropriate.  Failure to comply with this packaging requirement may result in damage to the Goods which may, at PMI’s sole discretion, result in the Goods being deemed nonconforming by PMI.  Goods returned for packaging non-compliance and/or shipping damage may be returned to Seller, at Seller’s expense, for a full refund. Buyer will not charge extra for boxing, packing, cartage or other similar items unless previously agreed to in writing.  Buyer's Order number and part number (if applicable) must be plainly marked on all invoices, packages, packing slips included with material, shipping documents, and correspondence.. Seller shall also comply with all country of origin marking instructions. A separate invoice shall be issued for each shipment and all invoices must show net or cash discount terms. Goods on this Order must not be billed with those on other orders. Unless otherwise specified in the Order, no invoice shall be issued prior to shipment of Goods and no payment will be made prior to receipt and acceptance of Goods and correct invoice. Unless freight and other charges, where applicable, are itemized, discount will be taken on full amount of invoice.

5.   DELIVERY AND INSPECTION. Time of delivery is of the essence against this Order. Shipping terms as set forth on the face of this Order shall govern. Delivery shall not be deemed to be complete until Goods have been actually received and accepted by Buyer, notwithstanding any agreement to pay freight or other related charges.  Risk of loss transfers to Buyer only when the Goods are fully and finally accepted by Buyer. If it appears that Seller will not meet the time of delivery indicated on the Order, Seller shall, if requested by Buyer, ship Goods via airfreight or other expedited routing to avoid or minimize delay to the maximum extent possible, at Seller’s expense. PMI may, at its discretion, deem Goods delivered outside of the applicable time of delivery to be nonconforming and may either return such Goods to Seller, at Seller’s expense, for full refund; agree to a revised time of delivery; or cancel this Order or remainder thereof without liability, purchase the Goods elsewhere, and charge Seller with any loss incurred through Seller’s failure to meet the time of delivery.  Acceptance by Buyer of a later delivery of either the whole or a part of the Order shall not constitute a waiver of Buyer's claim for any damage that the late delivery may have caused. All Goods are subject to a final inspection and acceptance at destination, notwithstanding prior payments or inspection at source. Buyer reserves the right to perform source inspection and conduct quality audits at Seller’s location with reasonable prior notification. 

6.   CHANGES.  From the time this Order is accepted by Seller until all Goods ordered hereunder are received and accepted by PMI, Seller shall not change the specification of the Goods without PMI’s prior written consent.  Buyer may at any time, by written order, make changes within the general scope of this Order in any one or more areas: (1) drawings, designs and specifications, (2) method of shipment, (3) place of delivery, inspection and acceptance, (4) reasonable increases or decreases in quantity and/or (5) reasonable changes in the time of delivery. Seller shall immediately perform any such changes to this Order; provided, however, if such a change causes an increase or decrease in cost or time required for the performance of this Order, these factors are to be negotiated in writing with Buyer prior to effecting the change.

7.   TERMINATION.  Buyer may at any time terminate this Order, in whole or in part, by written notice to Seller. Seller shall thereupon as directed, cease work and deliver to Buyer all completed and partially completed Goods, articles or materials and works in progress, and Buyer shall pay Seller the following:

(a) The price stipulated in this Order for all Goods, articles or materials which have been completed and accepted by PMI prior to such termination.

(b) Actual expenditures made by Seller in connection with the uncompleted portion of this Order including reasonable cancellation charges paid by Seller on account of commitments made under this Order;

provided, however, that PMI’s liability under this Section shall not exceed the price stipulated in the Order.

8.   DEFAULT AND FORCE MAJEURE.  In the event Seller shall fail to comply with any of the terms and conditions herein, Buyer may terminate this Order in full or in part, and may consider such non-compliance as a breach of this Order. Buyer expressly reserves the right to pursue the remedies, in addition to any remedies provided for hereunder, provided by law in the case of any such breach and no action by Buyer shall constitute a waiver of any such right or remedy. Buyer may cancel this Order in whole or in part by written notice in the event that any proceedings are instituted by or against either party in bankruptcy or insolvency under any provision of applicable bankruptcy laws or in the event of any assignment for the benefit of creditors.

Force Majeure or acts of nature shall only release Seller from the obligation to perform the Order during the period of Force Majeure if Buyer is informed as soon as possible but not later than 2 business days of occurrence of these circumstances and if Buyer provides any remedy plan or solution. If Buyer fails to provide any remedy plan or solution within the reasonable period as requested by PMI, PMI may suspend or cancel this Order without any liability to Seller.

9.   WARRANTIES.  Seller warrants that all Goods delivered under this Order (i) conform to Buyer's specifications, drawings and approved samples, if any, and (ii) will be of good material and workmanship and free from defects for a period of one (1) year from the date PMI accepts the Goods, the Seller’s warranty period, or the maximum period permitted under applicable local laws, whichever is longer. If any of the delivered Goods do not conform to the Order or the specifications, have defects or are found not to have promised qualities, Seller shall be informed within a reasonable time by means of a written report by Buyer and Seller shall either repair or replace such Goods upon Buyer’s instructions. If the goods cannot be repaired or replaced, then Seller shall refund the full amount of the price paid by Seller for such Goods within fourteen (14) days. For replacement and repaired goods, Seller shall provide the same warranty and be liable to the same extent as for the originally shipped Goods. Buyer, without limitation to its other rights and in its sole discretion, may deem as nonconforming any Goods containing counterfeit parts, defective materials or workmanship; not conforming to Buyer's specifications, drawings, and approved samples, if any; or which are not as ordered. Buyer, in addition to its remedies under the applicable laws, may reject such defective or non-conforming Goods, require correction, charge Seller with any loss incurred or accept them with an equitable adjustment in price. No replacement of defective or nonconforming Goods shall be made by Seller, unless specified in writing by Buyer. Rejected or repaired or replaced Goods shall be returned at the expense and risk of Seller.

10. GOODS PROCURED FOR RESALE. Should the Order indicate that Buyer procures the Goods for resale, Seller acknowledges and agrees that PMI may pass on to the ultimate buyer of the Goods the support, warranty, indemnity and all rights eventually stemming from breach of contract. As a result of the foregoing, the end-user of the Goods shall have the right to directly request warranty, repair and support from Seller and claim remedies from Seller in connection with the Goods.

11. INTELLECTUAL PROPERTY LIABILITY AND INDEMNIFICATION.  Seller warrants that any Goods sold and delivered hereunder shall not infringe any patent, copyright, trademark, other intellectual property right, trade secret or application therefore. Seller will indemnify and hold Buyer harmless from any and all loss, cost, expenses, or fees (including attorney’s fees) on account of any and all claims, suits, or judgments on account of the use or sale of such in violation of rights under such patent, trademark, copyright, trade secret, other intellectual property right, or application to the extent the Goods are not manufactured pursuant to design specified by Buyer and such design is the reason for such violation of rights. In addition to the indemnity provided by Seller, Buyer may request Seller to procure the right for Buyer to continue using the Goods or modify the infringing part without affecting the functions of the Goods so that Buyer could continue using the Goods without any interference. Buyer may also elect to terminate the Order with any paid amount fully refunded by Seller.

Seller further agrees to indemnify, defend, and hold harmless Buyer, its trustees, officers, agents, and employees from and against any and all claims and demands which may arise in any way out of the furnishing of goods or services hereunder, including, without limitation, claims and demands arising from personal injury (including death) or damage to property; REGARDLESS OF WHETHER SUCH CLAIMS ARE FOUNDED IN WHOLE OR IN PART UPON ALLEGED OR ACTUAL NEGLIGENCE OF PMI. Buyer agrees to notify Seller promptly of any such claim or action after Buyer itself receives written notice of any such claim or action.

12. BUYER’S PROPERTY.  All tools, patterns, specifications, drawing, designs or other property furnished or paid for by Buyer for Seller's use in filling this Order shall remain the property of Buyer, and Seller shall not use the same in connection with any other customer's work. Seller shall be responsible for and shall safeguard all secret, confidential or restricted matters disclosed by Buyer to Seller. All tools, patterns, specifications, drawing, designs or other property, technical or business information supplied by Buyer to Seller shall be deemed to be confidential and so kept by Seller during the performance of the Order and after the fulfillment of the Order.

 13.CHOICE OF LAW.  The validity, performance, and construction of this Order shall be governed by the laws of The State of California, U.S.A, without regard to principles of conflicts of law. The competent court of , California shall be the exclusive venue for all legal disputes arising from this Order. The parties expressly agree that the provisions of the United Nations Convention on Contracts for the International Sale of Products will not apply to this Agreement.

14. ASSIGNMENT. Seller shall not assign or sub-contract this Order to any other party without the prior written consent of Buyer. If given Buyer consent, Seller is not relieved of any of its obligations under this Order. PMI my attach conditions to the giving of its consent.

15. GENERAL. Any other notices required or permitted to be given pursuant to this Order will be given in writing and sent by fax or registered mail. Whenever a notice or request is required to be given at or prior to a particular time, such notice or request must be actually received by the party to whom it is requested to be given.

Seller agrees not to use the name of Buyer or to quote the opinion of any of Buyer's employees in any advertising or publicize any Order without obtaining the prior written consent of Buyer. Buyer may at any time insist upon strict compliance with these terms and conditions notwithstanding any previous custom, practice, or course of business. The remedies provided herein to Buyer are cumulative and in addition to any remedies at law. No waiver of a breach by Seller hereunder shall constitute a continuing waiver of such breach.

16. SEVERABILITY. If individual terms of this Order are or became ineffective and/or void, either as a whole or in part, this fact shall have no effect on the validity of the remainder of the Order unless the Order cannot be completed without the ineffective/void terms. The parties agree to replace the ineffective/void term by one that serves the purpose of the Order as closely as possible.

17. COMPLIANCE WITH LAWS AND REGULATIONS

General: Unless otherwise specified in this Order, the prices include all applicable federal, state and local taxes. Seller shall comply with all applicable state, federal and local laws and regulations, including but not limited to all applicable laws regarding forced labor and human trafficking. Seller shall comply with all laws dealing with improper or illegal payments, gifts and gratuities, and Seller agrees not to pay, promise to pay or authorize the payment of any money or anything of value, directly or indirectly, to any person for the purpose of illegally or improperly inducing a decision or obtaining or retaining business in connection with this Order. Seller warrants that it has established an effective program to ensure that the activities of any suppliers it utilizes to provide any Goods that will be incorporated into the Goods supplied under this Purchase Order will be conducted in conformance with this Section. Seller agrees to indemnify and hold Buyer harmless from and against any and all costs, expenses, penalties or other liabilities attributable to Seller's violation of this condition.

Security of the Supply Chain: Seller warrants and agrees that it shall take all the necessary steps to ensure the security of Buyer’s supply chain. Seller also warrants that the Goods manufactured, stored, forwarded and delivered under this Order are manufactured, warehoused, prepared and loaded on safe business premises, safe loading and transportation areas and at the same time are protected against illegal interference in the course of manufacturing, warehousing, preparation, loading and shipping including any business partner acting on behalf of the Seller. Seller may only employ reliable employees in the course of this Order. Additionally Seller shall promptly provide security declaration upon request including but not limited to security measures implemented by Seller with respect to the Goods provided to Buyer hereunder.

Export and Import Laws:  Seller warrants that it understands and will fully comply with all applicable export, re-export, and import laws, regulations, orders and policies. Seller will secure all necessary government clearances, licenses, authorizations, and exemptions, and it will make all required filings and disclosures related to the transfer of the Goods hereunder.  Seller warrants and agrees that the Goods sold to Buyer under this Order are not subject to Anti-Dumping Duty (ADD) or Countervailing Duty (CVD) actions, and Seller will promptly notify Buyer in writing if Seller becomes aware of any such actions. 

Seller must provide Buyer with export control information, the country of origin and export classification codes for every good supplied pursuant to this Order. This information may be provided in the commercial invoice and packing slip, or other method as agreed upon by the parties in writing. The export classification codes shall include, as applicable, the Export Control Classification Number (ECN), the Harmonized System (HS) Tariff Codes, and the country under which each provided export code is assigned. [The information provided by Seller under this paragraph must be sufficient to satisfy applicable trade preferential agreements and customs agreements.] Seller shall notify Buyer of any changes promptly in writing.

Seller shall provide a standard certificate of origin, and other possible product and/or shipping elements to comply with specific export, import, and security laws and regulations, within a reasonable period, upon written request from Buyer.

RoHS: Seller warrants and agrees that the Goods sold to Buyer under this Order and specified to be "RoHS Compliant" shall be fully compliant with the European Union Directive No. 2002/95/EC on the Restriction of Hazardous Substances (“RoHS”).  Upon Buyer's request, Seller shall promptly provide Buyer with access to all necessary information and records evidencing the Goods’ RoHS compliance. Additionally, Seller shall promptly provide material declarations upon request with respect to the Goods provided to Buyer hereunder.

REACH: Seller warrants and agrees that each chemical substance or its preparations on their own or contained in Goods sold or otherwise transferred to Buyer is pre-registered if required, and registered if required, under Regulation (EC) No 1907/2006 (“REACH”), is not restricted under Annex XVII of REACH and if subject to authorization under REACH, is authorized for Buyer’s use.  Seller shall notify Buyer if it decides not to pre-register or register substances that will be subject to registration under REACH and that are contained in Goods supplied to Buyer or supplied to Buyer on their own at least 12 months before their registration deadline.  Upon request from Buyer, Seller shall provide Buyer with access to all relevant information on substances meeting the criteria under REACH Annex XIV (the “candidate list”) including the name of the substance, where the substance is used, and sufficient information to allow Buyer to safely use the Goods or fulfill its own obligations under REACH. If any Goods sold or otherwise transferred to PMI hereunder contain hazardous materials, Seller shall identify hazardous materials contained in Goods delivered to Buyer and provide Material Safety Data Sheets (“MSDS”) for such Goods.

Batteries:  Seller warrants that the Goods sold to Buyer under this Order shall be fully compliant with the European Union Directive No. 2006/66/EC on the batteries and accumulators and waste batteries and accumulators (“Batteries Directive”). Seller also declares that all Goods delivered to Buyer do not contain any of the restricted substances above the legal threshold limits as specified in Article 4 of the Batteries Directive and are marked as specified in Article 21 of the Batteries Directive and in the supplementary provisions laid down by the respective body of the EU, unless the Goods are exempted from the marking requirement.

Data Protection: Seller represents and agrees that any data (including personal data of Seller, its representatives, employees or agents) that is transferred or otherwise provided to PMI in the context of commercial transactions with Seller (e.g. name, contact details, title, professional background, field of expertise, product interests, etc.; hereinafter: “Seller Data”) is data which is generally available to businesses in the normal course of Seller’s business operations and is regarded as data related to, and provided in the context of, the professional activity of such representatives, employees, agents, and of the Seller. Seller hereby agrees on its own behalf and on behalf of its representatives, employees and agents that PMI may, in accordance with PMI’s privacy statement and applicable laws and regulations, (i) use such Seller Data for the purpose of account and contract administration, for security purposes, and for the development of the business relationship, and (ii) transfer such Seller Data to other National Instruments companies including those located outside the European Economic Area for the purposes specified in point (i) above.

Record Retention: Seller agrees to retain records evidencing the compliance of the Goods with all the applicable laws for a period of at least 10 years after the last supply of the Goods.

18. COUNTERFEIT PARTS. Seller further represents and warrants that only new and authentic materials are used in Goods delivered to Buyer and that the Goods delivered do not contain counterfeit parts. No material, part, or component other than a new and authentic part shall be used unless approved in advance in writing by Buyer. To further mitigate the possibility of the inadvertent use of counterfeit parts, Seller shall only purchase authentic parts/components directly from the Original Component Manufacturers (OCM) or Original Equipment Manufacturer (OEM) through an OCM/OEM authorized distribution chain. Seller must make available to Buyer, at Buyer's request, documentation that authenticates traceability of the components to that applicable OCM. Purchase of parts/components from independent distributors is not authorized unless first approved in writing by Buyer. Seller must present complete and compelling support for its request and include in its request all actions to ensure the parts/components thus procured are legitimate parts. Buyer’s approval of Seller request does not relieve Seller's responsibility to comply with all requirements under this Order, including the representations and warranties in this paragraph. For avoidance of doubt "counterfeit part" shall mean (1) an unauthorized copy or imitation, or substitute that has been identified, marked, and/or altered by a source other than the item's legally authorized source and has been misrepresented to be an authorized item of the legally authorized source and/or (2) previously used parts provided as "new."

19. US GOVERNMENT CONTRACTS.  If this Order is issued for any purpose which is either directly or indirectly connected with the performance of a U.S. Government prime or subcontract contract, the Federal Acquisition Regulations referenced below in effect on the date of this Order are incorporated herein by reference to the extent applicable.  These clauses will apply to Seller as though Seller were a prime contractor, and in such manner as will enable Buyer to meet its obligations arising out of the Government prime contract or subcontract.

(i) 52.203-13, Contractor Code of Business Ethics and Conduct

(ii) 52.219-8, Utilization of Small Business Concerns

(iii) 52.222-17, Non-displacement of Qualified Workers

(iv) 52.222-26, Equal Opportunity 

(v) 52.222-35, Equal Opportunity for Veterans

(vi) 52.222-36, Affirmative Action for Workers with Disabilities

(vii) 52.222-40, Notification of Employee Rights Under the National Labor Relations Act 

(viii) 52.222-41, Service Contract Act of 1965

(ix) 52.222-50, Combating Trafficking in Persons

(x) 52.222-51, Exemption from Application of the Service Contract Act to Contracts for Maintenance, Calibration, or Repair of Certain Equipment-Requirements

(xi) 52.222-53, Exemption from Application of the Service Contract Act to Contracts for Certain Services-Requirements

(xii) 52.222-54, Employment Eligibility Verification

(xiii) 52.247-64, Preference for Privately Owned U.S.-Flag Commercial Vessels