Visual Communications Company, LLC (“VCC”) Terms and Conditions

Agreement

“Agreement” means, collectively, these Terms and Conditions (“Terms and Conditions”), together with any purchase order (“Order”), VCC’s Code of Conduct, and any other master or similar agreement signed by the buyer named on the Order (“Buyer”) and VCC, including any distribution, reselling, or similar agreement. The Agreement governs any purchase and sale between VCC and Buyer involving VCC’s products (the “Products”). All Orders must be submitted in writing, completed, and signed by Buyer or its authorized agent, or emailed to VCC at customerservice@vcclite.com (EDI is also available). Orders may be in any format but must contain, at a minimum, the following information: Date/ Order Number/ Billing & Shipping Address(es)/ Shipping Instructions / Payment Terms (as quoted by VCC prior to submission of the Order)/ Quantity, Description and Price (in U.S. Dollars) of each Product / Contact Person, Phone, and Email Address/ and Requested Delivery Date. Pricing outlined in the Order shall be consistent with the prices as quoted to Buyer by VCC, which quoted prices shall be valid for sixty (60) days from the date of such quotation unless otherwise stated on the face of such quotation.

Disclaimer and Release

THE WARRANTIES, OBLIGATIONS, AND LIABILITIES OF VCC AND THE REMEDIES OF BUYER SET FORTH HEREIN ARE EXCLUSIVE. BUYER HEREBY WAIVES, RELEASES AND DISCLAIMS ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF VCC AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES OF BUYER AGAINST VCC, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE; (B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; (C) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, INCLUDING CLAIMS BASED UPON NEGLIGENCE, PRODUCT LIABILITY OR STRICT LIABILITY; AND (D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR INFRINGEMENT. BUYER ACKNOWLEDGES AND AGREES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES SET FORTH HEREIN. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF THE EXPRESS WARRANTY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE.

Limitations of Liability

IN NO EVENT WILL VCC OR ITS SUPPLIERS BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, ANY INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (COLLECTIVELY, “DAMAGES”) ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE PRODUCTS REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF VCC HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. VCC’S TOTAL CUMULATIVE LIABILITY FOR ANY LOSSES OR ANY DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE PRODUCTS REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF VCC HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES, WILL BE EXPRESSLY LIMITED TO AND NOT EXCEED THE AMOUNT ACTUALLY PAID BY BUYER IN CONNECTION WITH THE APPLICABLE ORDER AND RECEIVED BY VCC. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THE FOREGOING REMEDIES ARE EXCLUSIVE, AND BUYER WAIVES AND RELEASES ALL OTHER WARRANTIES, OBLIGATIONS, AND LIABILITIES OF VCC AND ALL OTHER REMEDIES, CLAIMS, AND RIGHTS THAT BUYER MAY HAVE RELATING IN ANY WAY TO THE PRODUCTS COVERED BY THE AGREEMENT, WHETHER ARISING FROM CONTRACT, WARRANTY, STRICT LIABILITY OR TORT OR FROM OUR NEGLIGENCE, TORT, OR OTHER FAULT, INCLUDING CLAIMS FOR LOSS OF OR DAMAGE TO THE PRODUCTS.

Acceptance

An Order will not bind VCC until VCC accepts the Order in writing. At the sole discretion of VCC, all Orders are subject to submission of a credit application by Buyer to VCC and credit approval by VCC. If VCC fails to give written notice to Buyer within five (5) business days of the delivery of the Order, such Order will be deemed rejected by VCC. VCC reserves the right to reject any Order for any reason at its sole and absolute discretion. Once accepted by VCC, Buyer may not modify, rescind, or cancel any order, in whole or in part, without VCC’s written consent. Partial shipment of an Order will not constitute acceptance of the entire Order absent written acceptance of the entire Order. VCC will provide reasonable notice to Buyer of any backorders, including the estimated time of shipping. If demand exceeds VCC’s production of Products, VCC may allocate its output in its sole and absolute discretion.

Acceptance

An Order will not bind VCC until VCC accepts the Order in writing. At the sole discretion of VCC, all Orders are subject to submission of a credit application by Buyer to VCC and credit approval by VCC. If VCC fails to give written notice to Buyer within five (5) business days of the delivery of the Order, such Order will be deemed rejected by VCC. VCC reserves the right to reject any Order for any reason at its sole and absolute discretion. Once accepted by VCC, Buyer may not modify, rescind, or cancel any order, in whole or in part, without VCC’s written consent. Partial shipment of an Order will not constitute acceptance of the entire Order absent written acceptance of the entire Order. VCC will provide reasonable notice to Buyer of any backorders, including the estimated time of shipping. If demand exceeds VCC’s production of Products, VCC may allocate its output according to its sole and absolute discretion.

Non-Cancellable, Non-Returnable (NCNR) Orders

Certain orders, including but not limited to custom assemblies, special-order components, tooling, or other items designated by VCC, may be classified as Non-Cancellable, Non-Returnable (NCNR). Orders identified as NCNR in a quotation, order acknowledgment, or related documentation are subject to this Section.

NCNR orders, once accepted by VCC, may not be cancelled, rescheduled, or returned without VCC’s prior written consent. Buyer shall be liable for all costs incurred, including materials, components, work-in-progress, finished goods, VCC’s reasonable overhead expenses specifically allocated to the applicable Order, and non-recoverable supplier charges. Title and risk of loss shall pass as provided in these Terms and Conditions; however, Buyer’s payment obligations are absolute.

Where procurement exceeds immediate order requirements due to supplier minimums, lead times, or forecast commitments, Buyer shall remain responsible for such materials. VCC may, at its discretion, hold residual inventory for future releases; Buyer remains liable for ultimate consumption or purchase.

Where Buyer forecasts, or blanket orders drive procurement, VCC may invoice for documented exposure, including components, inclusive of Minimum Order Quantities (MOQs) and pack sizes, non-recoverable charges, work in process (WIP), finished goods, expedite costs, and reasonable handling/storage fees, and a reasonable overhead allocation. Supporting documentation (e.g., supplier purchase orders, confirmations, invoices, WIP/inventory reports) will be provided upon request.

Buyer agrees to the applicable forecast consumption and attrition rules. VCC may audit consumption against such rules and invoice Buyer for any unconsumed balance within the firm horizon or forecast window.

The obligations under this NCNR clause shall survive any expiration, cancellation, or termination of the applicable Order or the Agreement.

Compliance

VCC reserves the right to periodically review any third party’s compliance with this Code of Conduct, including by conducting audits and other reviews of any third party’s environmental, supply chain, labor practices, and other business practices described in this Code of Conduct. You will permit VCC and/or its representatives the necessary access needed to evaluate your compliance with this Code of Conduct, including, without limitation, access to your facilities or your sub-contractor’s facilities and a review of associated books and records. Upon request, you must also provide VCC with written certifications evidencing your compliance with this Code of Conduct.

Delivery

VCC will use commercially reasonable efforts to meet any delivery date specified in an accepted Order. All shipments of Products will be FOB Otay Mesa, CA, USA (“San Diego”) unless otherwise agreed in writing by Buyer and VCC. VCC will use commercially reasonable efforts to comply with Buyer’s request for a specific carrier; however, if Buyer’s designated carrier fails to promptly accept the delivery of Products, VCC may tender shipment to an alternate carrier. Risk of loss and title to the Products will pass to Buyer, and delivery and acceptance will be deemed to occur upon VCC’s delivery to the carrier in San Diego. VCC will not ship any Products to any embargoed country or any country subject to export controls under the embargo or export laws of the United States.

Price

All prices and charges are in U.S. Dollars. Unless otherwise specified herein, the purchase prices, charges, and other amounts payable by Buyer for the Products will be those specified in the Order. Prices quoted are subject to adjustment should duties or tariffs change from the time of quotation to the time of order. VCC reserves the right to adjust its pricing for Products affected directly or indirectly by changing duties, tariffs, trade agreements, and significant currency fluctuations.

Buyer shall provide Buyer’s shipping carrier’s account number to VCC, and VCC shall charge Buyer’s carrier shipping account with shipping costs. VCC shall not be responsible for payment of any shipping costs, taxes, customs, duties, tariffs, or any other amounts payable to any government from FOB San Diego to Buyer’s designated shipping destination. Buyer will pay, and indemnify and hold VCC harmless from, any shipping costs, sales, use, excise, import or export, value added or similar tax and all government permit or license fees and all customs, duty, tariff and similar fees levied upon the delivery of Products or provision of services under the Agreement, and any costs associated with the collection or withholding thereof, including penalties and interest.

Payment

Terms of payment will be net thirty (30) calendar days from the date of shipment. Buyer may be subject to accrued interest at a rate of 1.5% per month (18% per annum), or the highest rate permitted by law (if less), determined and compounded daily from the date due until the date paid. Buyer will be responsible for all costs and expenses (including expert, collection agency, check verification company, and attorneys’ fees, expenses, and costs) incurred by VCC in enforcing its rights to all payments under the Agreement. Shipments will be suspended on any account that is fifty (50) days or more past due, and/or any account in excess of the VCC-approved credit limit, without notice to Buyer. VCC’s acceptance of any payment in any amount less than the amount due will in no way limit VCC’s right to recover the balance due, nor limit VCC’s right to pursue any other right or remedy. VCC may at any time change the terms of payment (including, but not limited to, requiring payment prior to shipment or by letter of credit) or take other action if VCC, in its sole discretion, believes that Buyer’s financial condition or other circumstances so warrant. All payments shall be remitted by (i) ACH, (ii) wire transfer in accordance with the wire instructions provided to Buyer by VCC. Any wire transfer fees or other charges by the sending and receiving bank shall be the sole responsibility of Buyer, or (iii) check mailed to: Visual Communications Company, LLC, 5355 Avenida Encinas, Suite 206, Carlsbad, CA 92008

Limited Warranty and Remedy

VCC warrants that the Products will be free from all material defects in materials and workmanship for a period of one (1) year from the date of delivery. The warranty will not apply to any Product that: (i) has not been assembled, operated, and maintained in accordance with its applicable instructions and/or datasheets; (ii) has been repaired or altered by unauthorized persons; or (iii) has been misused, abused, damaged, disassembled, or subjected to uses for which they were not intended. This warranty will not apply to expendable or disposable items. If Buyer gives VCC notice that any purchased Products fail to comply, in all material respects, with the foregoing warranties, VCC will, at its sole option and subject to VCC’s review and confirmation of such failure to comply, repair or replace such Products. Any other repairs requested will be at the repair rates quoted to Buyer by VCC.

Return Policy

Buyer must contact VCC before returning any Products and receive a Return Merchandise Authorization (RMA). Returns must be shipped freight prepaid to VCC in San Diego and must include the RMA number provided to the Buyer by VCC. VCC shall not be responsible for any damage incurred in transit back to VCC. Any return may be subject to a restocking charge.

Damaged or Lost Products and Shortages

If Buyer receives a shipment from VCC in carton(s) that are visibly damaged, the damage should be noted on the carrier’s freight bill or receipt, a copy of which should be retained by Buyer along with the original carton(s) and all packaging materials and parts intact. Buyer must notify VCC at 800-522-5546 within ten (10) calendar days of receipt of the damaged shipment or a shipment containing a shortage, or in the event of a lost shipment, as soon as Buyer determines that a shipment has been lost. VCC will not be responsible for any damage or loss caused after VCC’s delivery of the shipment to the carrier.

Intellectual Property Rights

Except as otherwise specifically agreed in writing between VCC and Buyer, VCC and its suppliers own all right, title and interest in and to the Products and all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing (“Intellectual Property Rights”) embodied therein. No title to or ownership of any Intellectual Property Rights related to any Products will be transferred to Buyer pursuant to the Agreement.

Confidential Information

VCC may disclose to Buyer particular trade secret, proprietary, or confidential information (“Confidential Information”). Except as otherwise authorized by VCC in writing, Buyer will use such Confidential Information only for the purposes for which VCC discloses it, will not disclose it to any third party, and will take appropriate steps to protect it.

Excused Performance

VCC will not be responsible for or be considered to be in breach of or default under the Agreement on account of any cause beyond VCC’s reasonable control or not occasioned by any act or omission of VCC (including, but not limited to, VCC’s inability, after due and timely diligence, to procure materials, parts, equipment, or services). If VCC fails to deliver Products or is delayed in providing Products for any other reason, and such failure or delay continues for more than sixty (60) days after the delivery date confirmed initially by VCC, Buyer’s sole remedy shall be an option to cancel the Order by written notice to VCC without assessment of a cancellation charge.

Compliance with Laws

Buyer will comply with all applicable laws, regulations, rules, orders and other requirements, now or hereafter in effect, of any applicable governmental authority, in its performance of the Agreement and its use of the Products including, without limitation, the U.S. Foreign Corrupt Practices Act. Buyer further agrees that Buyer will not export or re-export or cause to be exported or re-exported any Products in any way to or through any embargoed country or to or through any country subject to export controls under the embargo or export laws of the United States.

Severability

If any provision of the Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of the Agreement will nonetheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by the Agreement is not affected in any manner adverse to any party. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the parties will negotiate in good faith to modify the Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.

Waiver

The failure of either party to the Agreement to insist upon strict performance of any covenant or condition thereof, in any one or more instances, will not be construed as a waiver or relinquishment of any such covenant or condition.

Assignment

Neither the Agreement nor any right or duty under the Agreement may be transferred, assigned or delegated by Buyer, by operation of law or otherwise, without the prior written consent of VCC. VCC shall have the right to assign the Agreement to a third-party who agrees to assume VCC’s duties and obligations under the Agreement, upon prior written notice to Buyer.

Amendment

No amendment or modification of the Agreement will be valid unless set forth in a written instrument signed by the parties to the Agreement.

Applicable Law; Dispute Resolution; Arbitration

The Agreement will be governed in accordance with the laws of the State of California, U.S.A., without reference to its conflict of laws principles. Each of the parties hereto agrees to submit any claim or dispute arising out of, or related to the Agreement, to private and confidential binding arbitration before a single arbitrator conducted by the JAMS. Inc. San Diego Resolution Center (JAMS).  The arbitration proceedings shall be governed by the JAMS Comprehensive Arbitration Rules and Procedures and shall take place in San Diego County, California.  The decision of the arbitrator shall be final and binding on each of the parties and judgment thereon may be entered in any court having jurisdiction.  This arbitration procedure is intended to be the exclusive method of resolving any claim arising out of or related to the Agreement. The prevailing party in such arbitration shall be entitled to receive an award of all costs and expenses of such arbitration, including reasonable attorneys’ fees and costs, and all other expenses in connection therewith, in addition to any other award or remedy provided in connection with such arbitration.

Entire Agreement

The Agreement (including any attached exhibits, schedules, or attachments) represents the entire agreement and replaces all previous agreements between VCC and Buyer regarding the purchase and sale of the Products. Any additional or conflicting terms and conditions in any acknowledgment or other document provided by either party are explicitly rejected unless expressly accepted in writing by an authorized VCC officer or employee, or as otherwise allowed in these Terms and Conditions. However, if Buyer is an authorized distributor or reseller of VCC, in case of any conflict between the Agreement and any other notice, communication, or instruction—whether written, emailed, or telephonic—VCC reserves the right, at its sole discretion, to have the Agreement control.