1. General. These terms apply to all products (“Products”) sold by Pico Digital, Inc.(“Pico Digital”) and they represent the sole understanding between Pico Digital and the buyer identified on the front side hereof (“Buyer”) with respect to the purchase of Products. Buyer’s purchase order is solely for the purpose of requesting specific products, delivery dates, quantities and shipping destinations. Any provision of Buyer’s purchase order (or other documents and communications) which is in any way inconsistent with or in addition to these terms shall not be binding on Pico Digital and are hereby rejected by Pico Digital.
  2. Price.  All prices published by Pico Digital may be changed at any time without notice.  All prices are exclusive of transportation, insurance costs and all taxes including use, sales, property (ad valorem) and similar taxes.  Buyer agrees to pay such taxes (except taxes based upon Pico Digital’s net income).
  3. Invoice and Payment.  Pico Digital will invoice Buyer on the date the Product is tendered to the carrier at Pico Digital’s facility.  All invoices will be due and payable in full in United States dollars immediately upon receipt of Pico Digital’s invoice, unless otherwise provided on the front side hereof.  If payment is not timely received, a service charge of one and one-half percent (1.5%) per month or the maximum rate permitted by law, whichever is less, shall be assessed on overdue payments.   If, in Pico Digital’s judgment, Buyer’s financial condition does not justify continuation of shipment on the original terms of payment, Pico Digital may require full or partial payment in advance. If Buyer refuses to accept such change in credit terms, Buyer’s order may, at Pico Digital’s sole option, be canceled without liability arising therefrom to Pico Digital, in whole or in part.  Further, on delinquent accounts, Pico Digital shall not be obligated to continue performance under any agreement with Buyer.  Buyer warrants to Pico Digital that, upon each date Buyer orders Products, Buyer was financially solvent within the meaning of Section 2702 of the California Commercial Code.  For sales  to a  Buyer having its  principal place of business  outside the United States of America, Pico Digital  reserves  the right to bill in  either United  States dollars or the currency of the country in which the Product is shipped. In the event Pico Digital invoices Buyer in a foreign currency, the rate of exchange will be that in effect on the date of invoice. In the event (i) of Buyer’s bankruptcy or insolvency, (ii) that any proceeding is brought or threatened against Buyer or brought by Buyer under any bankruptcy or insolvency laws or their equivalent or (iii) that Buyer commences to be wound up or suffers a receiver to be  appointed,  Pico Digital may cancel any order then outstanding without liability to Pico Digital and Pico Digital shall receive reimbursement from Buyer for costs  incurred, including but not limited to attorneys’ fees, lost profit for Products so cancelled, and all other costs associated with the cancellation, direct and indirect, including  without  limitation  costs for work in process or custom goods.
  4. Security Interest. Pico Digital hereby reserves a purchase money security interest in the Products sold and the proceeds thereof, in the amount of the Products’ purchase price.  In the event of default by Buyer of any of its obligations to Pico Digital, Pico Digital shall have the right to repossess the Products sold hereunder without liability to Pico Digital.  This security interest will be satisfied by payment in full. Buyer agrees to execute any document requested by Pico Digital to perfect the foregoing security interest.
  5. Cancellation; Restocking Fee. Buyer may cancel Buyer’s order provided written notice is received by Pico Digital at least ninety (90) days in advance of a scheduled delivery. If Buyer cancels any order or part thereof within such ninety (90) day period, Buyer agrees to pay to Pico Digital a restocking fee equal to fifty percent (50%)  of the value of the order canceled. Buyer agrees to pay such amount within five (5) days of the date of Pico Digital’s invoice therefore.
  6. F.O.B. All sales are made F.O.B. Pico Digital’s facility.  Title and risk of loss shall pass to Buyer upon tender by Pico Digital of the Product to the carrier at Pico Digital’s shipping point. All claims for damages must be filed directly with the carrier.  The planned shipment date is an estimate only, and Pico Digital will not be subject to liability for failure to ship on or before such date under any circumstances.  Any carrier selected by Pico Digital shall not be deemed an agent of Pico Digital.
  7. Force Majeure. Pico Digital shall not be liable for nonperformance or delays, under any circumstances, which occur due to any causes beyond its reasonable control.  In no event shall Pico Digital be liable for any delay or re-procurement costs for failure to meet any shipment date.  In the case of Product shortages, Pico Digital reserves the right to allocate Products in a fair and equitable manner among all of its customers.
  8. Acceptance. Buyer shall give written notice to Pico Digital of (i) discrepancies between the type and quantity of Product ordered and Product delivered or (ii) Product defects, within five (5) days after delivery of the Product to Buyer.  Lacking such notice, the Buyer shall be deemed to have accepted the Product as delivered.  No credit allowances for defective Products will be made or replacements shipped until it is established to Pico Digital’s satisfaction, after suitable testing and inspection, that the Product was defective on the delivery date.  Pico Digital reserves the right to make partial shipments, and invoices will be issued accordingly.  Buyer may not reject a delivery by reason of partial shipment.  If Buyer rejects a Product, Seller will repair or replace the Product or refund to Buyer any amounts paid by Buyer for the Product, such refund to be given upon receipt by Seller of the rejected Product.  The foregoing shall be Buyer’s sole and exclusive remedy for Products rejected by Buyer.
  9. No Licenses Granted. The sale of Products by Pico Digital does not convey any license, expressly or by implication, estoppel or otherwise, under any Pico Digital patent, copyright, trademark, or other intellectual property right.  Pico Digital expressly reserves all its rights under such intellectual property rights.
  10. Limitation of Liability. Pico Digital’s sole liability to Buyer and Buyer’s sole and exclusive remedy hereunder for all claims shall be limited to a refund or credit to Buyer of the purchase price, or to the repair or replacement of the Product, at Pico Digital’s sole option.  In no event shall Pico Digital be liable for Buyer’s costs of procurement of substitute products or Buyer’s inability to obtain substitute products. IN NO EVENT SHALL PICO DIGITAL BE LIABLE FOR ANY SPECIAL, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES INCLUDING WITHOUT LIMITATION LOST PROFITS, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, EVEN IF PICO DIGITAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THIS LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OR ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.
  11. Indemnification by Buyer. Buyer shall defend, indemnify and hold harmless Pico Digital, its directors, officers, employees and agents from and against any claims, demands, causes of action, liabilities, or expenses (including attorneys’ fees and costs) for any personal or bodily injury, illness or death or property damage or any other claims, demands, allegations, damages, costs or liabilities arising out of or resulting in any way from Buyer’s misuse or mishandling of the Products.
  12. Indemnification by Pico Digital. Pico Digital agrees at its own expense, to defend Buyer with respect to all suits instituted against Buyer to the extent based on a third party claim that a Product manufactured by Pico Digital infringes a U.S. patent issued prior to the date of sale, U.S. copyright or U.S. trademark, and will pay all damages awarded against Buyer, or settlements entered into by Pico Digital, in connection therewith, provided, however, that Buyer (i) gives immediate written notice to Pico Digital of the institution of any such suit, (ii) permits Pico Digital complete discretion in the conduct, defense, control, and settlement of the same, and (iii) gives Pico Digital all needed information, assistance, and authority to enable Pico Digital to do so.  Pico Digital will not be responsible for defending any claim or to pay any award or damages assessed against Buyer based upon or alleging the making, use, or sale of Products in combination with other products, equipment or materials not furnished by Pico Digital or based upon the making, use, or sale of Products which are modified other than by Pico Digital.  In the event Products manufactured by Pico Digital infringe, or in the opinion of Pico Digital might constitute an infringement of, a U.S. patent issued prior to the date of sale, U.S. copyright or U.S. trademark, Pico Digital may, if Pico Digital so elects and if such a result is possible, either (i) secure for Buyer the right to continue using the Product by procuring for the Buyer a license, or by some other means, (ii) at Pico Digital’s own expense, replace the  Product with non-infringing product, or (iii) remove the enjoined Products and refund the sums paid, less a reasonable sum for depreciation and use.  The foregoing provisions, however, will not obligate Pico Digital in any way under this Section 12 with respect to any equipment, devices, parts or goods which are specially manufactured by Pico Digital based upon, and in accordance with, designs, specifications or processes supplied by Buyer.  THIS SECTION 12 STATES BUYER’S SOLE AND EXCLUSIVE REMEDY AND PICO DIGITAL’S ENTIRE LIABILITY AND OBLIGATION (EXPRESS, STATUTORY, IMPLIED OR OTHERWISE) WITH RESPECT TO INTELLECTUAL PROPERTY INFRINGEMENT OR CLAIMS THEREOF.
  13. Limited Warranty.  Pico Digital warrants to Buyer that the Product will be free from defects in material and workmanship and will perform substantially in accordance with Pico Digital’s applicable specification for Pico Digital’s specified standard warranty period or if no such warranty period is stated for ninety (90) days after delivery.  In the event of a breach of the foregoing warranty, Pico Digital, in its sole discretion, shall repair or replace the defective Product or refund the purchase price; provided, however, that the non-conforming Product is (i) returned during the warranty period and (ii) properly packaged and shipped, at Buyer’s expense, to Pico Digital’s designated repair facility, in accordance with Pico Digital’s Return Material Authorization Policy.  THE REMEDIES SET FORTH IN THIS SECTION SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF WARRANTY.  Products which have been improperly handled or shipped, or which have been subject to abuse, misuse, accident, alteration, neglect, improper or inadequate maintenance, unauthorized repair, or improper installation are not covered by warranty. No warranty is made with respect to custom equipment or Products produced to Buyer’s custom specification unless Pico Digital explicitly states the terms of such a warranty in writing in the contract for such custom Products under a heading expressly referencing the term “Warranty”.  Buyer acknowledges that Buyer has selected on its own the Products as suitable for Buyer’s intended purpose and that Pico Digital makes no warranty with respect to such suitability for fitness of the Product for such purposes.
  15. Miscellaneous. The validity, performance, and construction of these terms shall be governed by the laws of the United States of American and the State of California as applied to transactions taking place wholly within the State of California between California residents.  The United Nations Convention on contracts for the International Sale of Goods is specifically excluded from application.  Buyer agrees to comply strictly and fully with all export controls imposed by any jurisdiction.  In the event of litigation to enforce any rights hereunder, the parties will voluntarily appear before and hereby consent and submit to the jurisdiction of the courts of the United States of America/United States District Court for the Southern District of California and the State Courts of California and each party hereby waives any venue objections to such courts.  If Buyer is located in the United States, such jurisdiction and venue shall be exclusive.  The prevailing party in any such litigation or related settlement negotiations shall be entitled to recover reasonable attorneys’ fees and expenses. Buyer may not assign this agreement or any interest or right herein without Pico Digital’s prior written consent. Any assignment without such consent shall be null and void.  These terms may be amended or supplemented only by a writing that is signed by the authorized representatives of both parties.  No term or provision of these terms will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted.  No consent by either party to, or waiver of, a breach by either party will constitute a consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.  If any part of these terms is found invalid or unenforceable, that part will be amended to achieve as nearly as possible the same economic effect as the original provision and the remainder of these terms will remain in full force and effect. Buyer hereby acknowledges that it has not entered into this agreement in reliance upon any warranty or representation by any person or entity except for such warranties or representations as are specifically set forth herein.  These terms shall not be modified, supplemented, qualified, or interpreted by any trade usage or prior course of dealing without Pico Digital’s written consent.  No representation, promise or condition not expressly provided in writing and signed by authorized representatives of Buyer and Pico Digital shall be binding on either party.