Miscellaneous Synthetic Unit Agreement

MISCELLANEOUS SYNTHETIC UNIT AGREEMENT

This Miscellaneous Synthetic Unit Agreement (the "Agreement") is entered into as of by and between:

RECITALS

WHEREAS, Provider develops, manufactures or supplies synthetic units, components, or related assemblies (collectively, "Synthetic Units") and has the expertise, facilities and personnel to perform the services described herein; and

WHEREAS, Client desires to procure from Provider certain Synthetic Units and related services on the terms and conditions set forth in this Agreement, and Provider is willing to provide such Synthetic Units and services to Client pursuant to the terms herein.

WHEREAS, the parties intend by this Agreement to set forth their respective rights and obligations with respect to the design, manufacture, delivery and acceptance of Synthetic Units, payment, confidentiality and other matters described below.

1. DEFINITIONS

For purposes of this Agreement, "Deliverables" means the finished Synthetic Units, documentation, drawings and any other items to be delivered by Provider to Client as described in Section 2 (Scope of Work). "Confidential Information" has the meaning set forth in Section 5.

2. SCOPE OF WORK

Provider shall perform the work and deliver the Deliverables in accordance with the specifications, milestones and acceptance criteria set forth below and in any attached exhibits or purchase orders that reference this Agreement.

3. PAYMENT TERMS

Client shall pay Provider the fees set forth below in consideration for the performance of the Scope of Work. All amounts are payable in the currency specified unless otherwise agreed in writing.

Provider may suspend performance for nonpayment after providing written notice and a ten (10) calendar day opportunity to cure. Client is responsible for all reasonable costs of collection, including attorneys' fees, if any.

4. DELIVERY AND ACCEPTANCE

Deliverables shall be delivered to the delivery address set forth in the Notices section. Client shall inspect Deliverables within the acceptance period specified in the Scope of Work. Unless specified otherwise, any nonconformity must be reported in writing within ten (10) calendar days of receipt or the Deliverable will be deemed accepted.

5. CONFIDENTIALITY

Each party acknowledges that it may receive Confidential Information of the other party. "Confidential Information" means non-public information disclosed in any form that is designated as confidential or that a reasonable person would understand to be confidential given the nature of the information and the context of disclosure.

The receiving party shall (a) use Confidential Information solely to perform its obligations under this Agreement, (b) restrict disclosure to employees, contractors and agents with a need to know, and (c) protect Confidential Information using at least the same degree of care it uses to protect its own confidential information, but in no event less than reasonable care. Confidential Information does not include information that is or becomes public through no breach by the receiving party, is already known to the receiving party without obligation of confidentiality, is rightfully received from a third party without restriction, or is independently developed without use of Confidential Information.

The parties acknowledge that a breach of this Section 5 may cause irreparable harm for which monetary damages would be inadequate; accordingly, the non-breaching party shall be entitled to seek injunctive relief in addition to any other remedies available at law or in equity.

6. TERM AND TERMINATION

This Agreement shall commence on the Effective Date and shall continue until unless earlier terminated as provided herein.

Either party may terminate this Agreement for material breach if the other party fails to cure such breach within days after receipt of written notice specifying the breach. Either party may terminate for convenience upon days' prior written notice to the other party.

Termination shall not affect accrued payment obligations or rights and remedies that by their nature survive termination, including confidentiality, indemnification and payment obligations.

7. WARRANTIES; LIMITATION OF LIABILITY

Provider warrants that for a period of thirty (30) days following acceptance the Deliverables will materially conform to the specifications set forth in the Scope of Work. Provider's sole obligation and Client's exclusive remedy for breach of the foregoing warranty shall be, at Provider's option, repair or replacement of nonconforming Deliverables, or refund of amounts paid for such Deliverables.

EXCEPT FOR THE EXPRESS WARRANTY SET FORTH ABOVE, PROVIDER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR FOR LOSS OF PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EXCEPT TO THE EXTENT FINANCIAL LIABILITY ARISES FROM A PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

8. INDEMNIFICATION

Each party (the "Indemnitor") shall indemnify, defend and hold harmless the other party and its officers, directors, employees and agents (the "Indemnitees") from and against any third-party claims, liabilities, damages and costs (including reasonable attorneys' fees) arising from the Indemnitor's breach of this Agreement, negligence or willful misconduct. The indemnified party shall provide prompt written notice of any claim and shall reasonably cooperate in the defense.

9. NOTICES

All notices under this Agreement shall be in writing and delivered to the addresses below by hand, nationally recognized overnight courier, or certified mail (return receipt requested), or by electronic mail if confirmation of receipt is obtained.

10. GOVERNING LAW; DISPUTE RESOLUTION

This Agreement shall be governed by and construed in accordance with the laws of without regard to conflicts of law principles. The parties shall first attempt to resolve any dispute arising under this Agreement through good faith negotiation. If unresolved within thirty (30) days, either party may pursue any available remedy in a court of competent jurisdiction located in the governing state.

11. MISCELLANEOUS

Assignment: Neither party may assign this Agreement or any of its rights or obligations without the prior written consent of the other party, except that either party may assign this Agreement in connection with a sale of substantially all of its assets or a merger if the assignee assumes all obligations hereunder.

Amendment: This Agreement may be amended only by a written instrument signed by both parties. Severability: If any provision of this Agreement is held invalid or unenforceable, the remaining provisions shall remain in full force and effect.

12. ENTIRE AGREEMENT

This Agreement, including all exhibits and purchase orders that expressly reference this Agreement, constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements, negotiations and understandings, whether written or oral.

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