customer Terms & Conditions

3dB LABS, INC. 

STANDARD TERMS AND CONDITIONS OF SALE FOR PRODUCTS AND SERVICES 

The following terms and conditions apply to the sale of services (the “Services”) and goods (including  deliverables provided in connection with any Services, such goods and deliverables being “Products”) by 3dB  Labs, Inc. (“3dB”): 

1. Acceptance Of Terms and Conditions 

1.1. Quotations and Purchase Orders.  

All Quotations made by Seller and Purchase Orders received by Seller are expressly conditioned on  Buyer’s acceptance of these Standard Terms and Conditions of Sale, which form a binding part of all  Quotations and continue to form a binding part of any Purchase Order issued pursuant to such Quotations.  Any acceptance by Buyer of a Quotation, or issuance of a Purchase Order in response to any Quotation, is  expressly limited to acceptance of these Standard Terms and Conditions of Sale. Any additional or  differing terms and conditions proposed by Buyer in its acceptance or issuance of a Purchase Order  resulting from any Quotation shall not affect the validity of acceptance but shall be deemed as proposals for modification of these Standard terms and Conditions of Sale, which shall be deem rejected and of no  effect unless expressly agreed-to in writing by an authorized representative of Seller in Seller’s written  acknowledgment of the Purchase Order. In no event shall the sale and/or provision of Deliverable Items  hereunder be subject to any affirmation of fact or promise which relates to the application, performance, or  description of the goods unless such affirmation or promise is expressly incorporated into the Purchase  Order in writing. In the event of any conflict with any other document, term or condition forming part of  the Purchase Order, these Standard Terms and Conditions of Sale shall prevail and take precedence. 

1.2. Acceptance/Acknowledgment of Purchase Orders.  

All Purchase Orders for Deliverable Items from Buyer are subject to Seller’s acceptance which shall  consist of a written acknowledgment (notification by electronic means such as e-mail shall satisfy the  requirement for written acknowledgment) by Seller and delivered to Buyer. The Effective Date of the  Purchase Order shall be the date of Seller’s written acknowledgment. 

2. Agreement. 

These Terms and Conditions of Sale (“Terms”) along with all statements of work, quotations or purchase  orders, in each case that have been accepted in writing by 3dB and the person, entity or organization identified  therein as purchasing Goods or Services from 3dB (the “Buyer” and, upon such written acceptance by both 3dB and Buyer, an “Order”) comprise the entire agreement between 3dB and Buyer regarding the sale and purchase  of Products and Services listed therein (the “Agreement”), hereby superseding any previous understandings or  agreements regarding such sale and purchase. Each accepted Order shall, along with these Terms, constitute a  separate Agreement. In the event of any conflict between a provision in these Terms and a provision in any  Order, the provision in these Terms shall govern. An Agreement or any Order may only be amended or  modified by a writing signed by both 3dB and Buyer. No course of dealing, usage of trade or course of  performance shall be used to supplement, amend or interpret any provision in any Agreement. 3dB hereby  rejects any terms and conditions set forth in any Buyer form, including a purchase order, or any other  correspondence from Buyer, that are in addition to, inconsistent with, or in conflict with an Agreement. The  U.N. Convention on Contracts for the International Sale of Goods and the Uniform Computer Information  Transactions Act shall not apply to the Order or an Agreement.

 

3. Scope; Price. 

3dB shall perform such Services and sell such Products as are set forth in an Order and Buyer shall pay the  prices for such Products and Services stated in an Order. Such prices are exclusive of federal, state, local and  foreign sales, use, excise, value added, import, export and other taxes or duties, which Buyer agrees to  pay. Buyer shall pay each invoice, without holdback or offset. Unless set forth otherwise in an Order, Buyer  will reimburse 3dB for out of pocket expenses reasonably incurred in the performance of Services pursuant to  an Agreement. 

4. Invoicing; Payment. 

3dB shall invoice Buyer according to the invoice schedule set forth in an Order. If an Order does not contain an  invoicing schedule, then 3dB shall invoice Buyer for Goods upon shipment thereof and for Services and  associated expenses monthly in arrears. 3dB reserves the right to require pre-payment of expenses. Buyer will  pay each invoice, without setoff or discount, upon receipt. Invoices shall be deemed past due if payment is not  received within thirty (30) days after the invoice date. For any past due invoice, 3dB may (in addition other  remedies available hereunder or at law or equity) terminate the applicable Agreement or any Order for Buyer’s  breach or suspend Services/refuse to ship Products to Buyer. Unless otherwise agreed to in writing, all  payments are to be made in U.S. dollars. 

5. Intellectual Property. 

(a) 3dB retains all rights, title and interests (including, without limitation, all intellectual property rights) in and  to all inventions, ideas, discoveries, copyrightable works, software, algorithms, drawings,  information, specifications, photographs, processes, apparatus and designs, whether patentable or unpatentable,  conceived, invented or developed by 3dB (i) before any Agreement or during any Agreement but not in the  performance hereof and (ii) unless expressly set forth otherwise in an Order, in the performance of an  Agreement. 

(b) If 3dB provides any documents, drawings, algorithms, analyses, studies, specifications or other materials to  Buyer for which Buyer does not own all rights, title and interest therein pursuant to any Order, upon full  payment thereof by Buyer 3dB grants to Buyer a nonexclusive, nontransferable, nonsublicensable license to use  such items solely for Buyer’s internal purposes. 

(c) To the extent that Buyer provides 3dB any documents, drawings, algorithms, analyses, studies,  specifications or other materials or information, Buyer hereby represents that it has the right to provide such  items and information and Buyer hereby grants 3dB a nonexclusive right to use, reproduce, distribute and  modify such items and information as necessary for 3dB’s performance of an Agreement. 

(d) 3dB reserves all intellectual property and other rights in the Products and Services (and related software)  that are not expressly granted in an Agreement. 

6. Confidentiality. 

(a) As used herein, “Confidential Information” means any information disclosed or provided (in any form,  including disclosure by access) by 3dB or Buyer (in either case, the “Disclosing Party”) to the other (the  “Receiving Party”) that is marked as “confidential” or “proprietary” or that is by its nature such that a  reasonable person in Buyer’s or 3dB’s industries would regard it as being confidential or  proprietary. Confidential Information shall not include any information that: (i) was publicly available at the  time of disclosure; (ii) subsequently becomes available to the public, except by the wrongful disclosure by the  Receiving Party; (iii) was in the Receiving Party’s possession prior to receipt thereof from the Disclosing Party;  (iv) is received by a Receiving Party from a third party without any obligation of confidentiality with respect to  such information; (v) is developed independently by the Receiving Party without use or benefit of any 

 

information provided by the Disclosing Party; or (vi) is disclosed to a government or judicial body pursuant to  any judicial or governmental requirement or order; provided, however, that the Receiving Party notifies  Disclosing Party in writing of such required disclosure as much in advance as practicable under the  circumstances and cooperates, without charge or fee, with the Disclosing Party to limit the scope of or prevent  such disclosure. 

(b) During the term of an Agreement and thereafter, the Receiving Party will: (i) treat the Disclosing Party’s  Confidential Information as confidential and take reasonable precautions to prevent unauthorized disclosure or  use of such Confidential Information; (ii) not disclose the Disclosing Party’s Confidential Information to any  third party, except that 3dB may disclose Buyer’s Confidential Information to subcontractors and suppliers as  reasonably necessary and pursuant to a written agreement obligating such subcontractors and suppliers to  maintain the confidentiality of such Confidential Information to at least the same extent as required herein; (iii)  not use the Disclosing Party’s Confidential Information except for the purpose of providing Products or  Services or otherwise fulfilling obligations under an Agreement; and (iv) promptly return the Disclosing Party’s  Confidential Information upon request of the Disclosing Party. 

(c) Buyer and 3dB acknowledge that any violation of the forgoing may result in irreparable injury to the  Disclosing Party and thus the Disclosing Party shall be entitled, in addition to any other remedies it may have at  law or in equity, to seek a restraining order, injunction, specific performance or other similar remedy in order to  enforce the foregoing without the posting of a bond. 

(d) For the avoidance of doubt, if Buyer and 3dB have previously entered into a separate agreement regarding  the confidentiality of information, these Terms shall not supersede such separate confidentiality agreement and  both these Terms and such separate confidentiality agreement shall continue in effect according to their  respective terms. 

7. No Publicity. 

Buyer shall not advertise, publish or otherwise publicly disclose that 3dB has provided Products or Services to  Buyer without 3dB’s prior written consent. 

8. Limitation of Liability; Exclusion of Warranties.  

IN NO EVENT SHALL 3dB HAVE ANY LIABILITY TO BUYER OR ANY THIRD PARTY FOR ANY (A)  LOST PROFITS, LOSS OF USE, LOSS OF DATA, LOSS OF PRODUCTION OR ANY CONSEQUENTIAL,  INDIRECT, EXEMPLARY OR INCIDENTAL DAMAGES OR (B) ANY DIRECT DAMAGES IN EXCESS  OF THE AMOUNTS PAID OR PAYABLE BY BUYER UNDER THE APPLICABLE ORDER FOR WHICH  

SUCH LIABILITY ARISES. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION  2.1(B) AND 3.2, 3dB MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS  OR SERVICES OR ANY RELATED SOFTWARE, INCLUDING ANY WARRANTIES OF  MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER EXPRESS OR  IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR  OTHERWISE, AND 3dB HEREBY DISCLAIMS ALL SUCH OTHER IMPLIED AND OTHER  WARRANTIES. 

9. Force Majeure.  

3dB shall not be liable for any loss, damage or delay arising out of its failure (or that of its subcontractors) to  perform an Agreement due to causes beyond its reasonable control, including without limitation, acts of God,  acts of civil or military authority, fires, strikes, floods, epidemics, pandemics, quarantine restrictions, war, riots,  acts of terrorism, delays in transportation, or transportation embargoes. In the event of such delay, performance  date(s) will be extended as reasonably necessary to compensate for the delay.

 

10. Reservation of Rights.  

3dB expressly reserves all rights and remedies that are available to it at law or equity including without  limitation, rights and remedies set forth in the Ohio Uniform Commercial Code. 

11. Waiver.  

The failure of 3dB to enforce at any time, for any period of time, any of the provisions of an Agreement or any  Order shall not constitute a waiver of such provisions nor of 3dB’s right to enforce each and every  provision. Buyer acknowledges and agrees that 3dB’s rights under an Agreement are cumulative and not  elective or limiting. 

12. Applicable Law; Exclusive Venue.  

Each Agreement shall be governed by and construed in accordance with the laws of the State of Ohio, without  regard to its conflict of law principles. The State and Federal courts of competent jurisdiction of Ohio shall  have sole jurisdiction over any suit resulting from the Purchase Order, with venue in the County of West  Chester, Ohio. Buyer and Seller hereby consent to the exclusive jurisdiction of the aforesaid courts and the  venue. 

13. Assignments; Enforceability Severability.  

Buyer will not assign its rights in any Agreement or portion thereof without 3dB’s prior written consent. Any  unauthorized assignment is void. If all or part of any provision of an Agreement shall be declared unlawful,  void or unenforceable the rights and obligations of Buyer and 3dB shall be reduced only to the extent necessary  to remove the illegality and these Terms shall be enforced to the maximum extent possible. 3dB may, subject to  Section 1.5, engage subcontractors for the performance of the Services. 

14. Notices.  

All notices required or permitted to be given in connection with an Agreement shall be in writing and shall be  hand-delivered or delivered by nationally recognized overnight courier. Notices will be effective upon delivery. 

15. Termination.  

Either 3dB or Buyer may terminate an Agreement (and all Orders hereunder) if the other breaches a provision  of the applicable Agreement and fails to cure such breach within ten (10) calendar days, after receiving written  notice of such breach from the non-breaching party. 

16. Buyer’s Materials.  

If Buyer provides or instructs 3dB to use any (i) design, materials, drawings, software, specifications,  construction criteria or other information or materials furnished or specified by Buyer, or (ii) products supplied  by, made by or sourced from Buyer or other manufacturers or vendors specified by Buyer, then (A) Buyer  represents that it has the authority to provide the foregoing to 3dB; (B) Buyer hereby authorizes 3dB to use the  foregoing as reasonably necessary to provide Products and Services to Buyer; (C) 3dB shall not be responsible  or liable for any losses, defects, claims, warranty failures or other liabilities relating to 3dB’s reliance of use  thereof, and (D) Buyer will indemnify, defend and hold harmless 3dB against any claim arising out of 3dB’s use  or reliance thereof. 

17. Compliance with Laws.  

Buyer and 3dB shall comply with all applicable laws and regulations regarding the performance of each  Agreement and the use of the Products and Services. Without limiting the foregoing, Buyer shall comply with all export control and foreign corrupt practice act laws and regulations with respect to its use and distribution of  the Products and Services. 

18. Schedule.  

3dB shall use commercially reasonable efforts to deliver Products and perform Services in material  conformance with any schedule set forth in an Order; provided, however, that any such schedule shall be an  estimate only and shall not be binding on 3dB. 

19. Product Software.  

If any Product sold by 3dB contains software or 3dB provides Buyer with software for loading onto any such  Product, 3dB hereby grants Buyer a non-exclusive, non-transferable, non-sublicenseable license to use the  object code version of such software solely in conjunction with the Product on which such software is installed  or directed by 3dB to be installed. The foregoing license shall continue for so long as the applicable Agreement  is not terminated by 3dB because of Buyer’s uncured breach hereof. Buyer will not disclose, disassemble,  decompile, reverse engineer, or otherwise modify such software (except for modifications or updates as may be  provided by 3dB, which shall be included in the foregoing license). Except for the foregoing limited license  3dB and its licensors reserve all other rights, title and interests (including all intellectual property rights) in such  software. 

20. Government Rights. 

Unless expressly set forth in an Order, no government contract clauses, specifications or regulations apply to the  Products or Services, or otherwise to any Agreement. If any Order is issued under a U.S. Government Contract,  then the clauses at Federal Acquisition Regulation (FAR) 52.244-6(c)(1) shall be incorporated into such Order  by reference. Additionally, any technical data delivered under such Order is subject to an agreement by the  Government and its prime contractor that such technical data is a commercial item as that term is defined in  FAR 2.101, and the use, duplication or disclosure by the U.S. Government of such technical data is subject  these Terms and the applicable Agreement pursuant to the restrictions set forth in FAR 12.211. 

21. Acceptance of Goods; Product Limited Warranty. 

(a) Unless a specific acceptance process is set forth in an Order, Buyer shall be deemed to have accepted Products  at delivery unless it notifies 3dB in writing that any Products fail to comply with the requirements of an Agreement  within thirty (30) days after delivery and furnishes such written evidence or other documentation as reasonably  required by 3dB. 3dB will promptly repair or replace any Product properly rejected by Buyer. Notwithstanding the  foregoing, any use of a Product by Buyer for any purpose after receipt thereof shall constitute acceptance of that  Product by Buyer. 

(b) 3dB warrants to the original purchaser and/or final end user that for a period of one (1) year after delivery, the  Products will be free from defects in materials and workmanship when properly installed, maintained and used  under normal operating conditions for the purposes for which such Products were designed; provided, however, that  (i) if 3dB so requests, Buyer will return the alleged nonconforming Product to 3dB for inspection, properly packed  and at Buyer’s sole cost and expense, and (ii) 3dB inspects and confirms the validity of the warranty claim. Buyer  shall not return any Product to 3dB without 3dB’s prior written consent. In the event of a warranty claim that is  accepted by 3dB, then 3dB shall replace or repair the alleged nonconforming Product. Repair or replacement of an  alleged nonconforming Product shall not reset the warranty period for such Product. The foregoing warranty shall  be void with respect to: any Products modified by parties other than 3dB; alleged defects not reported to 3dB in  writing within the foregoing 1-year warranty period and within thirty (30) days after Buyer’s discovery thereof; and  alleged defects caused in any way by normal wear and tear, accidents, abuse, misuse, neglect, improper installation,  improper storage or issues with electrical or hydraulic power.

 

(c) THE REPAIR OR REPLACEMENT REMEDY SET FORTH IN SECTIONS 2.1(A) AND 2.1(B) SHALL BE  BUYER’S SOLE AND EXCLUSIVE REMEDY AND 3dB’S ENTIRE LIABILITY FOR ANY REJECTION OF  PRODUCTS OR ANY BREACH OF THE WARRANTY SET FORTH IN SECTION 2.1(B). 

22. Delivery; Shipping; Returns. 

(a) Unless otherwise provided in the Order, the Products will be delivered within a reasonable time after 3dB’s  acceptance of the Order. 3dB will use commercially reasonable efforts to deliver Products in accordance with the  mutually agreed upon delivery schedule identified in the Order; provided, however, that 3dB shall not be liable for  any delays, loss or damage in transit or for any delays caused in whole or in part by Buyer. 

(b) Unless otherwise provided in the Order, 3dB shall ship the Products to Buyer’s premises using 3dB’s standard  methods for packaging and shipping such Products. 

(c) 3dB may, in its sole discretion and without liability, make partial shipments of Products to Buyer. Each  shipment will constitute a separate sale. 

(d) The quantity of any installment of Products as recorded by 3dB on dispatch from 3dB’s premises is conclusive  evidence of the quantity received by Buyer upon delivery unless Buyer can provide conclusive evidence proving  otherwise. 

(e) Unless otherwise stated in the Order, delivery shall be FOB 3dB’s premises, West Chester, Ohio, USA. Title  and risk of loss passes to Buyer upon delivery of the Products to the carrier at 3dB’s premises, except title to  intellectual property rights associated with the Products, which remain with 3dB and its suppliers unless expressly  stated otherwise in an Order. 

(f) Buyer will comply with 3dB’s instructions regarding returns of defective Products. Convenience returns are not  permitted. 

23. Changes 

23.1. Change Process.  

Buyer may, in writing, request a change within the general scope of the Purchase Order, including Buyer  requested changes to the delivery schedule of a Deliverable Item or postponement of work. Seller shall not  be obligated to proceed with any change, but will respond to Buyer’s request indicating whether and under  what conditions Seller is willing to accept such change. If such requested change causes an increase or  decrease in the cost or the time required for completion of the work to be provided herein, or otherwise  affects any other provision of the Purchase Order, Buyer and Seller shall negotiate and agree in a timely  manner to equitable adjustments in the Prices, delivery schedules and other affected provisions of the  Purchase Order, and the Purchase Order shall be modified in writing accordingly. In no event shall Seller  be obligated to proceed with the requested change until the Parties have agreed upon such changes and  entered into a written amendment to the Purchase Order. 

23.2.Buyer Caused Delays.  

Delivery dates are based upon Buyer’s prompt performance of its obligations hereunder, including timely  provision to Seller of all necessary information. If the performance of all or any part of the work required  of Seller under the Purchase Order is delayed or interrupted by Buyer’s failure to perform its obligations  within the time specified in the Purchase Order or within a reasonable time if no time is specified, Seller  

shall be entitled to an equitable adjustment in the Prices, delivery schedules, and any other terms of the  Purchase Order affected by such delay.

 

24. Disputes 

The Parties shall attempt in good faith to resolve any dispute(s) arising under the Purchase Order, or a breach  thereof, by negotiations between representatives of the Parties authorized to resolve such dispute(s). All  negotiations pursuant to this Article 24 shall be confidential and shall be treated as compromise and settlement  negotiations for purposes of applicable rules of evidence, and not as evidence or admission of liability. In the  event the Partiers fail to reach a negotiated settlement within a period of sixty (60) days, then by written notice  delivered by either Party to the other, the dispute shall be settled by mandatory arbitration administered by the  American Arbitration Association in accordance with the provisions of its International Arbitration Rules in  effect on the date that such request is made, by three (3) arbitrators, one selected by each Party with the third  arbitrator being selected by the two arbitrators appointed by the Parties. The place of arbitration shall be West  Chester, Ohio, USA, and shall be in the English language. The arbitration resolution shall be final and binding  upon the Parties and judgment may be entered thereon, upon the application of any Party, by any court having  jurisdiction. Each Party shall bear the cost of preparing and presenting its case and the fees, expenses and all  other costs of its selected arbitrator. The other costs of arbitration, including the fees and expenses of the third  arbitrator, will be shared equally by the Parties. Discovery in connection with the arbitration shall be permitted  as determined by the arbitrators, as applicable. The arbitrators shall be bound by the limitations of liability and  other provisions of the Purchase Order; in no event shall the arbitrators be authorized or allowed to make any  award in any amount or on any theory of liability not otherwise expressly permitted in the Purchase Order. 

24.1. Confidentiality.  

The arbitrators and Parties shall be bound by obligations of confidentiality as to the arbitration  proceedings and to the matters and information associated therewith (the “Arbitration Information”) and  shall not disclose any such Arbitration Information to any third party not a necessary participant to the  arbitration proceedings and who has not entered into a written confidentiality agreement agreeing to be  bound by the obligations of confidentiality and nondisclosure as to any Arbitration Information. 

25. Survival 

Termination or expiration of the Purchase Order for any reason shall not release either Party from any liability  or obligations: (i) that the Parties have expressly agreed shall survive such termination or expiration; (ii) which  remain to be performed; or (iii) by their nature would be intended to be applicable following any such  termination or expiration.