Purchase Agreement

This PURCHASE AGREEMENT is made as of the effective date by and between the SIERRA company identified in the signature block below (including its Affiliates, individually or collectively, the “Buyer”) and the seller identified in the signature block below (including its Affiliates, individually or collectively, the “Supplier”).

1.Term & Termination The term of this Agreement begins on the Effective Date and will continue until either party provides the other party with 180 days’ prior written notice of termination.

2.Confidentiality Each party shall keep the terms of this Agreement and all confidential business information received from the other party confidential for a period of three years from the Effective Date or until this Agreement is terminated, whichever is longer. Any separate non-disclosure or confidentiality agreement (NDA) signed by the parties will prevail over this confidentiality provision, except as modified by this provision. The terms of such NDA with respect to disclosures by Supplier and Buyer are incorporated into this Agreement by reference and, with respect to disclosures by the parties hereunder, the terms of the NDA is extended for the term of this Agreement.

3.Purchase and Sale of Products This Agreement sets forth the terms and conditions under which Buyer and/or its Affiliates may purchase and Supplier and/or its Affiliates may sell certain raw materials, components, parts or sub-assemblies (the “Products”). “Affiliate” means any person that directly or indirectly controls, is controlled by or is under common control with a party during the term of this Agreement. By executing this Agreement, each party assumes the rights and obligations hereunder on behalf of itself and its Affiliates. Each party: (I) represents and warrants that it has the requisite power and authority to bind its Affiliates to the terms of this Agreement, (II) shall cause its Affiliates to perform their respective obligations as if such Affiliates were named parties to this Agreement, and (III) shall be liable for the failure of any of its Affiliates to so perform hereunder. In the event Supplier sells products indirectly to Buyer through a third party (e.g., an authorized distributor), Supplier agrees to honor and follow this Agreement.

4.Payment Terms Payment terms are 3% Net 30, the due date for payment is calculated from the date an accurate invoice is received by the Buyer at the location designated by the Buyer. Buyer is entitled to set off any amounts lawfully owed to buyer against any amount due under any invoice from Supplier. Payment according to these terms entitles Buyer to a 3% discount off the Net purchase price as long as the Net 30 terms are met.

5.Inco-Terms Sierra follows DDP ICC Incoterms 2020, product to be shipped and delivered duty paid to our San Jose Evelyn facility, CA USA.

6.Delivery In the event Supplier cannot meet a committed delivery date under an ordinary transportation method, Supplier at its expense will deliver the products to Sierra by Air Freight or other expedited means acceptable to Buyer. Unless otherwise agreed in a signed inventory management agreement: (I) title will pass upon Buyer’s acceptance of the Products at the final destination; (II) only purchase orders constitute authorization to ship; and (III) forecasts are not binding.

7.Quality Supplier shall ensure that Products are in strict compliance to the Specifications and that the facilities at which the products are manufactured or Handled are compliant under and certified with the current ISO 9001 standard as well as any other standards set forth on the purchase order. “Specifications” means (I) the published manufacturer specifications of the Product at the time of order; and (II), the specifications, drawings, schematics and data describing the Product and/or the manufacture, testing and packaging of the Product as furnished in writing by Buyer to Supplier (including by way of a purchase order). Supplier shall obtain Buyers written approval six (6) months in advance of deviating in any manner from the Specifications unless the change to Specification is requested by Buyer. Upon five (5) days’ notice to Supplier, Buyer is entitled to audit Supplier to validate compliance with the quality requirements of this Agreement. Supplier will provide reasonable assistance to Buyer during any such audits, to include, but not be limited to, reasonable access to its facilities and documentation.

8.Technical Support Supplier shall provide reasonable technical support to Sierra and their end customers when required. Supplier shall provide at least six (6) months prior written notice when a product, material or service is going end of life. Supplier shall provide Product samples or sampling kits upon request for qualification or validation purpose. Supplier agrees to share information regarding their technical roadmap upon request.

9.Warranty Supplier warrants that Products delivered will be: (I) free from defects in workmanship, materials and if applicable, design, and will conform to the Specifications for a period of Eighteen (18) months from the date of title transfer to the buyer; (II) new, unused and not counterfeit; (III) free of any lien, claim or encumbrance; and (IIII) will not infringe any third party intellectual property right, These warranties will not apply to defects resulting from the misuse , abuse, neglect, theft, or vandalism of the Products. If a product does not comply with the warranties above, Supplier shall, at its expense (including any duties, freight or logistics charges) and at Buyers option, repair the Product, replace the Product, or refund the purchase price of the Product. Supplier shall deliver replacement Product within 10 days or as soon a practically possible of Buyers written request after receipt of raw material. The warranty term for repaired and replacement Product is the same as stated herein and begins when Buyer receives the repaired or replacement Product. In addition to the warranty remedies set forth in this section, Supplier shall, at Buyers option, issue a credit or reimbursement to Buyer for the actual cost incurred by Buyer as a result of the defective product, including costs of material, labor, testing, and administrative charges, not to exceed fifteen (15) times the purchase price of the Product. Buyer will make commercially reasonable attempts to minimize Suppliers costs by salvaging high-value components that can be reused by Buyer. Supplier shall notify Sierra if they encounter counterfeit product. Except as provided in this agreement, neither party makes and each party disclaims any warranties in connection with this agreement, whether express, implied, statutory or otherwise, including without limitation both the warranties of Merchantability and Fitness for a particular purpose, and any warranties arising out of a course of performance, course of dealings or usage of trade.

10.General Indemnification Supplier will indemnify, defend, and hold harmless Buyer, its Affiliates, directors, customers, employees, agents, representatives, successors and assigns (each an “Indemnified Party”) from any and all claims, damages, liabilities, losses, costs, or expenses, including without limitation actual attorney’s fees and court costs, arising from or in any way related to any actual or alleged negligence, willful misconduct, or breach of this Agreement or any warranty by Supplier, its Affiliates, directors, employees, agents, subcontractors or assigns (each an “Indemnifying Party”); except to the extend caused by the negligence or willful misconduct of an indemnified Party. An Indemnifying Party will not enter into any settlement agreement that contains an admission of liability or requires any act or agreement to refrain from acting on the part of any indemnified Party.

11. Intellectual Property Indemnification Supplier will indemnify, defend and hold harmless, Buyer, its Affiliates, directors, customers, employees. Agents, representatives, successors and assigns from any and all claims, damages, liabilities, losses, costs or expenses, including without limitation actual attorney’s fees and court costs, arising out of any claim alleging that any of the Products or use thereof infringes any third-party intellectual property right. In addition, if an IP claim is made, Supplier will, at its own expense, exercise the first of the following that is practicable: (a) obtain for Buyer the right to continue to use the Products consistent with this agreement; (b) modify the Products so they are non-infringing and in compliance with this Agreement; or (d) at Buyers request, accept the cancellation and return (at Suppliers expense) of infringing Products without the Buyer having any cancellation liability and refund to Buyer any amount paid for such infringing Products. Buyer will reasonably cooperate in the investigation, settlement and defense of such claims at Suppliers expense.

12.Compliance Supplier shall comply with all applicable laws and regulations, with the Supplier Code of conduct, Supplier Quality Manual, Export control policy, Supplemental Terms for orders under U.S. Government contracts (FAR/DFAR), and counterfeit products prevention policy, as amended from time to time. These documents are part of the agreement and are available at www.protoexpress.com

13.Governing Law This Agreement, and all matters arising out of or relating to this Agreement, are governed by and will be construed in accordance with the laws of the State of California, U.S.A., without regard to conflict laws of provision. The United Nations Convention on Contracts for the international Sale of Goods does not apply to this Agreement. Each party agrees not to commence, and to cause its Affiliates not to commence, any proceeding of any kind whatsoever against any other party or its affiliates arising from or relating to this Agreement and all contemplated transactions in any other forum other than the U.S. District Court for the state of California or, if such court does not have a subject matter jurisdiction, the courts of the State of California. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts.

14.Miscellaneous This Agreement, together with all instructions, terms and conditions on Buyer’s purchase orders, constitutes the entire agreement of the parties with respect to the subject matter herein, and supersedes and discharges all prior and contemporaneous understandings and agreements, both written and oral, with respect to the subject matter herein. No amendment is effective unless it is in writing, identified as an amendment to this Agreement, and signed by an authorized representative of each party. The parties agree that the delivery of the Agreement by facsimile or electronic copy (scanned pdf) has the same force and effect as delivery of the original signatures and that each party may use such copy as evidence of the execution and delivery of the agreement by all parties to the same extent that an original signature could be used. Neither party shall assign this Agreement in whole or in part (other than an assignment to an Affiliate or by operation of law) without the prior written consent of the other party. This agreement is binding upon and inures to the benefit of the parties’ successors and permitted assigns. All notices required by this agreement must be in writing in the English language and will be deemed given when sent to the addresses set forth below by certified mail, return receipt requested, or by international airmail service with certified receipt.

ACCEPTED & AGREED by duly authorized representatives of the parties as of the ____ day of ____ 20___ (the “Effective Date”)

Schedule A: To Purchase Agreement
Payment and Delivery Terms

Payment
Payment terms are 3%, 30 Days, which means: i) payment is due 30 business Days following the date that is 30 days from the date an accurate invoice is received at the buyer’s designated location. And ii) payment according to these terms entitles Buyer to a 3% discount off the net purchase price.

Incoterms
Sierra follows DDP ICC Incoterms 2020, product to be shipped and delivered duty paid to our San Jose Evelyn facility, CA USA.