NDA Letter

FCC ID: HCOHD434NACEHIO4A

Cover Letter(s)

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FCCID_3240515

TERMS AND CONDITIONS OF SALE AND SERVICE All Purchase Orders are subject to these terms and conditions and all additional terms and conditions presented on or accompanying a Dali Quotation or Dali Order Acknowledgement. Dali specifically rejects and Customer disclaims all printed provisions in Customer’s printed Purchase Orders including associated forms and/or documents. These terms and conditions (these “Terms”), together with Dali Quotation and Order Acknowledgement shall constitute the entire agreement between Dali and Customer with respect to any Customer Purchase Order and the Materials and/or Services provided hereunder. These supersede any prior or contemporaneous agreements or representations written or oral. Any amendment of these Terms must be in writing and signed by Dali to be binding on Dali. 1. Definitions. 2. Acceptance Of Purchase Orders. As used herein, “Acceptance of Customer’s Purchase Order” shall mean Dali’s 1.1 “Customer” means the person or entity however agreement, as evidenced by the issuance of an Order constituted to whom the Material or Services are provided by or Acknowledgement, to supply the Material and/or Services through Dali. identified in Customer’s Purchase Order under these Terms. All 1.2 “Dali” means Dali Wireless, Inc. and its affiliates. Customer Purchase Orders are subject to written acceptance by Dali, at its sole discretion, even if received elsewhere by a 1.3 “Delivery” means the Shipment Date for Material or the salesperson, selling agent or representative. No Customer Purchase date of substantial completion of the Services or any stage thereof. Order will be binding upon Dali until Dali issues its written Order 1.4 “Material(s)” means the Products and/or Standard Acknowledgement. Software offered for sale or licensed to Customer by Dali in 3. Price Of Material and/or Services. The price for Material fulfillment of a Purchase Order. and Services are based on Dali’s published list prices in effect at 1.5 “Order Acknowledgement” means a document delivered time of Dali’s receipt of Customer’s Purchase Order unless to Customer by Dali or acknowledging the receipt of Customer’s otherwise set forth in the Order Acknowledgement, or a valid Purchase Order and Dali’s agreement to supply the Material and/or issued Quotation, Statement of Work or proposal. A Quotation, Services stated on such Purchase Order under these Terms. Statement of Work or proposal is valid for a period of thirty (30) days from date of issue. Errors or omissions in price are subject to 1.6 “Product” means hardware of Dali’s design and correction by Dali. All published list prices are subject to change manufacture, or other manufacturer’s equipment offered for sale by by Dali without notice. Dali retains all rights to change the Material Dali to Customer. Product does not include Standard Software or and/or Services or may discontinue any Material and/or Services at Services. Dali’s sole discretion. 1.7 “Purchase Order” means Customer’s document for the 3.1 Prices; Adjustments. The price of Services acquisition of Materials and/or Services, exclusive of all printed may subsequently be adjusted to reasonably reflect the adverse cost terms and conditions contained thereon. impact to Dali of: (i) Customer changes or delays which are outside of the scope of Services; (ii) legal/regulatory changes which occur 1.8 “Quotation” means either Dali’s offer to sell Services after the issuance of the Quotation and/or Statement of Work for and/or Material or Dali’s document that provides a summary of the the particular Services in question; and/or (iii) the failure of Statement of Work and pricing corresponding to the Statement of Customer to perform its obligations under Section 6, 7, and 8. In Work. the event Customer objects to an adjustment to the price, Dali shall 1.9 “Services” means various types of services provided by have the right to terminate the Purchase Order, in whole or in part Dali to Customer covering items such as training, maintenance and in addition to any other remedy available to Dali, Customer services, on-site support, applications engineering, site engineering shall make immediate payment to Dali on account of all Materials and installation. Services are not Material. delivered and/or Services rendered prior to the termination. 1.10 “Shipment” means shipment of Material to Customer 4. Purchase Order Changes. Customer may not change its at the agreed destination. Shipments within the continental United Purchase Order without Dali’s written consent. Any revision in States and all international destinations are made EXW (Incoterms drawings, designs, specifications, shipment completion dates or 2010). Purchase Order termination requested by Customer may result in additional cost to Customer. Any additional cost to Customer will 1.11 “Shipment Date” means the date on which Dali has be at Dali’s standard rates in effect at the time of Customer’s scheduled Shipment. request. Dali’s performance of Customer’s request shall commence 1.12 “Software License Agreement” means the Dali only upon the issuance of a new Purchase Order or written Software License Agreement. amendment to an existing Purchase Order authorizing the applicable charge. Customer’s oral requests for Services shall be 1.13 “Standard Software” means a set of instructions which binding on Customer and deemed by Dali as valid Customer allows hardware/non-intelligent Products to store, manipulate Purchase Orders, governed by these Terms. Customer further and/or process information. Standard Software is licensed by Dali agrees, as a result of any request made hereunder to pay any and all separately or as part of a Product sale. Standard Software is not a charges associated with such Service request. Customer requested Product. changes in performance of Services shall be reviewed upon Dali’s 1.14 “Statement of Work” means Dali’s document which receipt of Customer’s request to determine if additional charges are describes in detail the work or Services to be performed and any applicable. Material to be supplied. TERMS AND CONDITIONS DALI WIRELESS, INC. 2 20150225

5. Schedule for Performance of Services. Dali will perform 10. Payment Terms. Customer’s payment obligations are the Services in accordance with the schedule stated in the Quotation stated on Dali’s invoices. Invoices for Services will be rendered in and/or Statement of Work. Both parties agree to use reasonable accordance with an established milestone schedule or upon efforts to adhere to the schedule, however, each party will give due completion of any Services. Delinquent payments shall bear interest consideration to any reasonable proposal by the other party at the rate of one and one-half percent (1½%) or the maximum regarding changes in the schedule which, if agreed upon, will be permitted by law, whichever is less, per month on outstanding recorded in a written modification to the applicable Purchase Order. balances may be charged. All amounts due shall be payable in Dates for performance of Services are estimated by Dali in good United States dollars unless otherwise specifically agreed upon in faith but not guaranteed. Dali will have unrestricted access to Dali’s Order Acknowledgement. If, in Dali’s judgment, Customer’s site and any other locations at which Services are to be Customer’s financial condition does not justify continuation of the performed at all times (including overtime hours, Saturday, existing payment terms, Dali may: (i) require full or partial Sundays and holidays) for the purpose of performing the Services. payment of Customer’s account; (ii) require payment in advance of Material shipment; (iii) require payment in advance for 6. Site Preparation and Condition for Services. Customer performance of any Services; (iv) change Customer’s credit terms; will be responsible for preparation of the site, at which Dali will or (v) any combination of the above. perform the Services to the specifications and in accordance with the time schedule stated in the Quotation and/or Statement of Work. 11. Warranties. Dali warrants from the Shipment Date that Customer warrants to Dali that each such site is in compliance with Product bearing Dali name will substantially conform to Dali all applicable health and safety regulations and is free from all specifications in effect as of the Shipment Date and will be free friable asbestos and hazardous contamination or pollutants, as from substantial defects in material and workmanship under normal further provided in Section 8. use, given proper installation and maintenance, for a period of 12 months from the Shipment Date for the respective Product(s), and 7. Hazardous Materials. Prior to the date specified in the under the terms and conditions set forth in Dali’s current published Quotation and/or Statement of Work for the performance of warranty handbook in effect on the Shipment Date. Dali further Services, Customer will take any and all steps needed to assure that warrants to Customer that all Services performed by Dali for each site is free from all asbestos and hazardous contamination or Customer will be provided in a workmanlike manner for a period of pollutants. If contamination is found to be present at a site, Dali ninety (90) days after Delivery. The warranties for Standard will have no further obligations under any Quotation and/or Software are set forth in the Software License Agreement. Statement of Work (other than with respect to any software licenses or confidentiality obligations), until such contamination is removed. 12. Warranty Limitations. Dali’s entire liability and Customer’s exclusive remedy whether in contract, tort or otherwise, 8. Packaging, Shipment Dates for Materials. All Material for any claim related to or arising out of breach of the warranty shall be suitably packed for shipment. Dali may charge for packing covering Product shall be correction of defects by repair, and/or packaging including special documentation to comply with replacement, re-performance of service or credit, at Dali’s Customer requests. The Shipment Date for Material is estimated by discretion. Refurbished Product may be used to repair or replace the Dali but is not guaranteed by Dali. Customer, regardless of the Product. Customer shall have no claim to Product which was circumstances, will not hold Dali liable for any liabilities, penalties, replaced or the components therein which were replaced. Dali has or charges of any nature due to the late performance of any no liability with respect to claims relating to or arising from the use Shipment Date. Dali assumes no liability for any direct or of equipment not bearing Dali name. Dali does not warrant that the liquidated damages during Shipment or Delivery of Material. operation of the Product will be uninterrupted or error-free. Material may be tendered in partial Shipments at Dali’s discretion. Similarly, Dali does not warrant that the functions of the Product In the event of Shipment delay requested by Customer or a delay will meet Customer’s requirements or that the Product will operate caused by lack of shipping instructions, Dali will store the subject in combination with other products selected by Customer for its Material at Customer’s risk and expense. Dali will invoice the use. Dali assumes no liability with respect to (i) defects caused by Customer at the full price for the Material including any additional modification, repair, installation, operation or maintenance except storage fee. as described in Dali’s documentation; or, (ii) negligent or other 9. Title, Risk Of Loss And Insurance. Risk of loss, damage improper use of the Product. All equipment and software not and insurance responsibilities for the Products pass from Dali to bearing Dali name, is supplied “AS IS” and Customer will look Customer upon acceptance of Material by the shipping agent or solely to the warranties and remedies, if any, provided by the carrier. Title to Materials shall pass to Customer upon full payment. equipment manufacturer thereof. In addition, Dali assumes no Title to all Software shall remain with Dali or its licensors, but risk liability for equipment or services furnished by Customer nor does of loss, damage and insurance responsibilities shall pass to this warranty cover any copy of or update to any user manual for Customer at Dali’s shipping location. In the event title passes to the Product. No agent, distributor, or representative is authorized to Customer on Shipment under applicable law, for all Materials make any warranties on behalf of Dali or to assume for Dali any shipped, Dali shall retain a security interest in the Materials until other liability in connection with any Product or Services. With payment, in full, has been received by Dali for such Materials respect to all purchases of Materials and/or Services from Dali by delivered and Services performed. Customer shall execute any Customer, the above warranty replaces all other warranties, express instrument reasonably required for Dali’s protection of such or implied, and all other obligations of Dali, including any security interest. All Materials and Services are deemed accepted warranties of merchantability and fitness for a particular purpose. upon Delivery subject to the warranties provided in Section 12. All other warranties are disclaimed and excluded by Dali. TERMS AND CONDITIONS DALI WIRELESS, INC. 3 20150225

13. Returns. Material may not be returned to Dali without including but not limited to the Foreign Corrupt Practices Act and prior authorization. Customer must contact Dali to obtain an the Export Administration Act. authorization number and return the Material to the location designated by Dali with all transportation charges paid by 17. Confidential Information. Customer will not disclose to Customer. Dali may charge Customer certain fees for Material any person or entity any information or data of Dali which is either returned to Dali. Any Material returned to Dali without proper marked as the confidential information or which should reasonably authorization will be returned to Customer at Customer expense. be understood as confidential in nature (“Confidential Information”). Notwithstanding the provisions herein, if Customer 14. Disclaimer of Liability. DALI WILL NOT BE LIABLE receives Confidential Information Customer shall treat such TO CUSTOMER OR ANY THIRD PARTY CLAIMING Confidential Information as confidential, prohibit recopying and THROUGH CUSTOMER FOR INJURIES OR DAMAGES TO use such Confidential Information only in connection with fulfilling PERSONS OR PROPERTY RESULTING FROM ANY CAUSE its obligations under Customer’s Purchase Order. Customer will WHATSOEVER, WITH THE EXCEPTION OF BODILY return all Confidential Information to Dali upon completion of such INJURIES OR DEATH CAUSED BY THE WILLFUL obligations for its use, or upon the request of Dali. Customer MISCONDUCT OR INTENTIONAL ACTS OF DALI. THIS recognizes and agrees that the unauthorized use or disclosure of the LIMITATION APPLIES TO ALL MATERIAL PROVIDED AND Confidential Information would cause irreparable injury to Dali for SERVICES PERFORMED DURING AND AFTER THE which it would have no adequate remedy at law, and that any actual WARRANTY PERIOD SET FORTH IN SECTION 11. IN NO or contemplated breach of this clause will entitle Dali to obtain EVENT SHALL DALI BE LIABLE TO CUSTOMER FOR ANY immediate injunctive relief prohibiting such breach, in addition to DAMAGES RESULTING FROM LOSS OF DATA, LOSS OF any other rights and remedies available to it. The obligations herein USE OR LOSS OF REVENUE OR PROFIT AND DALI contained will expressly survive the final payment of any/or all FURTHER DISCLAIMS ANY AND ALL LIABILITY FOR Customer Purchase Orders. INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR OTHER SIMILAR DAMAGES. IF ANY REMEDY 18. Severability. If any provision of these Terms is held by a HEREUNDER FAILS OF ITS ESSENTIAL PURPOSE, OR IN court, government agency or other legal authority of competent ANY OTHER EVENT, DALI’S AGGREGATE LIABILITY jurisdiction to be invalid, illegal or unenforceable, such invalidity, HEREUNDER SHALL NOT EXCEED (I) THE PURCHASE illegality or unenforceability shall not invalidate, void or render PRICE OF THE AFFECTED MATERIALS DEPRECIATED unenforceable any other portion of these Terms but rather these OVER A THREE YEAR PERIOD; OR (II) THE ACTUAL Terms shall be construed as if it did not contain the particular AMOUNT PAID TO DALI FOR THE AFFECTED SERVICES. invalid, illegal or unenforceable provision or provisions, and the rights and obligations of the parties shall be construed and enforced 15. Assignment. Dali may assign or pledge the payments due accordingly. (and the documentation supporting such payment obligations) from Customer under this Purchase Order. Dali may assign all of its 19. Force Majeure. Dali is not liable for failure or delay in other rights and obligations by giving Customer written notice fulfilling its obligations due to any causes beyond its reasonable thereof but without being obligated to obtain Customer’s consent control. In the event of any such delay, the Shipment Date or date prior thereto. In the event of an assignment, Dali shall be for performance of Services will be extended. Dali retains the right discharged of any liability pursuant to those Purchase Orders which to determine the allocation of its inventory of Materials among have been assigned or delegated. Customer may not assign its itself, its present and future customers and Customer. In the event rights nor delegate its obligations under any or all of its Purchase Dali partially fills Customer’s Purchase Order, Customer shall Orders unless Dali’s written consent is obtained prior thereto and make payments on Dali’s invoices during the period in which the any such assignment or delegation without such consent shall be delay is in effect for those Materials and/or Services delivered. If an void. event of force majeure prevents or delays Dali’s performance by more than six (6) months, Dali may terminate the applicable 16. Compliance with Applicable Laws. Each party will Purchase Order, with immediate effect. comply with all applicable laws affecting the purchase and use of Material. Each party agrees to maintain all registrations with 20. Governing Language. The parties hereby agree that all governmental agencies, commercial registries, chambers of written documents between them be prepared in the English commerce, or other offices which may be required under law in language only and such language shall be the governing language. order to properly conduct commercial business. Prior to the date 21. Governing Law/Venue. The contract created by the specified in the Quotation and/or Statement of Work for the issuance of an Order Acknowledgement shall be construed, performance of Service, Customer will (i) obtain and pay for all interpreted and applied in accordance with the internal laws (but governmental or third party consents, permits, approvals, licenses not the law of conflicts) of the jurisdiction in which is located the and public and private easements necessary for Dali’s unrestricted main office of Dali affiliate which is authorized to issue the Order access to any site or location needed for performance of the Acknowledgement and any applicable law of that jurisdiction and Services and delivery of the Material, and (ii) will notify Dali in the United States of America. The parties agree that the United advance of any requirements including all local laws, regulations, Nations Convention on Contracts for the International Sale of ordinances and the like to which Dali is or will be required to Goods shall not apply to the sale of Materials hereunder. Each comply in the rendering of Services and in the supplying of party hereby irrevocably consents to the exclusive personal Materials hereunder. When required, Customer will comply with jurisdiction of any state court of general jurisdiction of the United States laws applicable to the use, sale or license of Material, jurisdiction in which is located the main office of Dali affiliate which is authorized to issue the Order Acknowledgment. If TERMS AND CONDITIONS DALI WIRELESS, INC. 4 20150225

Customer institutes any legal proceeding in any other court, it shall Services under Customer’s Purchase Order shall not affect each assume all of Dali’s costs in connection therewith, including party’s obligations and rights under these Terms, which by their reasonable attorney’s fees. Registered or certified mail of any legal nature, survive, notwithstanding such termination, cancellation, process shall constitute lawful and valid service of process in any delivery or performance. such proceeding, suit or controversy. 26. Taxes. In addition to the Price for Material or Services 22. Intellectual Property Rights. All drawings, data, designs, paid by Customer, Customer will pay Dali the amount of all taxes, tooling, equipment, procedures, engineering changes, inventions, excises, or other governmental charges that Dali may be required to trade secrets, copyrights, mask works, source code, object code, pay with respect to the production, sale, license, or transportation of patents, patent applications, know-how, computer and/or Product any Material delivered hereunder, including the performance of any software and all parts thereof, trademarks and all other information, Services, except taxes on or measured by Dali’s net income. If technical or otherwise which was developed, made or supplied by Customer claims exemption from any taxes, Customer will provide or for Dali in the production of any Materials or the performance of Dali with documentation required by the taxing authority to support any Services sold, rendered or licensed hereunder will be and the exemption. remain the sole property of Dali (or its licensors, if any). Customer agrees not to reverse engineer or exceed the scope of any license 27. Cancellation For Default. Dali may, upon written notice for the Materials. to Customer, cancel any and/or all Customer Purchase Orders effective immediately if: 23. Proprietary Rights Indemnification. If any Product bearing Dali name, becomes the subject of a third party claim of 27.1 Customer makes an assignment for the benefit infringement of any valid United States copyright, trade secret or of creditors, is unable to pay its debts as they become due; files a patent, Dali shall defend Customer against such claim, Dali will voluntary petition in bankruptcy; is adjudicated to be a bankrupt or pay for any damages actually awarded to the claimant by a court of an insolvent debtor, files a petition seeking for itself any final jurisdiction, provided Customer gives Dali prompt written reorganization; or consents to or acquiesces in the appointment of a notice of all facts and circumstances necessary or desirable for a trustee, receiver or liquidator; proper defense of same, and Customer cooperates fully with Dali in 27.2 any proceeding seeking involuntary the defense of such claim. Dali shall not be responsible for any reorganization, or similar relief is filed against Customer which is settlement made without Dali’s written consent. In the event of any not dismissed within one (1) month after filing, or if any trustee, infringement claim, Dali may discontinue the sale of the Product. If receiver or liquidator of Customer or any substantial part of its Dali elects to discontinue the sale of the Product, Customer may business assets, or properties is appointed without Dali’s consent or (i) continue using the same at its sole risk until an injunction or acquiescence and such appointment is not vacated within one (1) other court order terminating the continued use thereof has been month after such appointment; (i) Customer ceases doing business issued; it being understood that Dali may participate at its expense as a going concern or it or its shareholders take any action looking in the defence of any such action if such claim names Dali as a to its dissolution or liquidation; or (ii) fails to perform any material defendant; or (ii) return the Product to Dali, including any obligations and such failure is not remedied within fifteen (15) associated media, any printed material, and any “online” or calendar days after notice has been given Customer; or electronic documentation to Dali and receive a prorated refund of (iii) Customer fails to pay for any Purchase Order in accordance the Product purchase cost based on an established prorated period with the invoice payment terms. Any cancellation pursuant to this of three (3) years from the original Shipment Date. Dali shall have clause will be in addition to and will not be exclusive of or no liability for any claim of infringement based upon: (i) use of the prejudicial to any other rights or remedies at law or in equity Product in a manner other than for which it was intended; (ii) any available to Dali. infringement, or alleged infringement, of any patent or copyright issued by any country other than the United States; 28. Interpretation. These Terms shall be interpreted as (iii) modifications or changes made to the Product which are not follows: (i) headings are for convenience only and do not affect authorized by Dali; (iv) operation of the Product in combination interpretation; (ii) the singular includes the plural and conversely; with other products selected by Customer for its use; or (v) Dali’s (iii) the word “including” shall be read as “including without compliance with Customer’s designated designs, material usage or limitation”; (iv) reference to a party means Dali and Customer specification furnished by Customer, in which case Customer shall exclusively; and (v) in the event of a conflict between Customer’s defend, indemnify and hold Dali harmless against any chain of Purchase Order or associated documents and these Terms, these infringement of any copyright or patent. The foregoing states the Terms including the Order Acknowledgement shall govern. full liability of Dali arising out of infringement. 29. Precedence. Except for Sections 8, 10, 14, 16, 18, 19, 24, 24. Software License. Dali licenses to Customer, Standard and 25 of these Terms, which may not be altered or amended and Software, when included with a Product sale or when purchased shall control if in conflict with a Quotation, in the event of a separately, in accordance with the terms of Software License conflict between a Quotation and these Terms, the terms of the Agreement. Quotation shall control. 25. Survival of Terms. The termination or cancellation of 30. Waiver. No waiver will be valid unless in writing signed any Customer Purchase Order or any relationship created hereunder by an authorized representative of Dali and no waiver granted will between the parties or the delivery of Material or performance of release Customer from subsequent strict compliance herewith. TERMS AND CONDITIONS DALI WIRELESS, INC. 5 20150225


Document Created: 2015-08-27 13:02:38
Document Modified: 2015-08-27 13:02:38
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