Purchase Order Terms and Conditions

APPLICABILITY

Effective February 1, 2023
Sections 1 – 36 are General Clauses applicable to all Orders.
Sections 37 – 41 are Special Clauses applicable to certain Orders, as specified in each Section.
Attachment A, if applicable, contains additional provisions governing Orders made pursuant to a Federal Government Contract.

GENERAL CLAUSES APPLICABLE TO ALL ORDERS

DEFINITIONS. Capitalized terms used throughout this document shall have the meaning either set forth below or defined elsewhere in these Terms:

“SIONYX” means SIONYX, LLC
“Goods” means the goods, including all materials, component parts, products, packaging, supplies and labeling of such goods provided by Vendor to SIONYX pursuant to an Order.
“Order” means the documents listed in Section 2.
“Party” means SIONYX or Vendor individually; “Parties” means SIONYX and Vendor collectively.
“PO” means the Purchase Order issued by SIONYX to Vendor.
“Services” means the services, including labor, consulting, installation, implementation, maintenance, and other services provided by Vendor to SIONYX pursuant to an Order.
“Terms” mean these SIONYX Terms of Purchase, including any Attachments.
“Vendor” means the individual, company, or entity listed on the face of the PO, to whom the PO is issued.
“Work” means the Goods provided and/or Services performed by Vendor pursuant to this Order. Unless otherwise specified, any reference to “days” shall mean calendar days.

ORDER. The following documents comprise the entirety of an Order, all of which are incorporated by this reference. In the event of an inconsistency or conflict between these documents, the inconsistency or conflict shall be resolved by the following order of precedence, with the higher listed items having precedence over lower listed items:

The PO, including any terms and instructions written on the face of the PO.
Any specially negotiated terms and conditions, including but not limited to a Manufacturing Services Agreement, Master Supply Agreement or similar agreements.
These Terms.
Vendor’s Quote (if applicable).
Vendor’s Terms & Conditions (if applicable).

Any terms or conditions proposed by Vendor inconsistent with, or in addition to these Terms shall be void and of no effect unless accepted by SIONYX by inclusion on the face of the PO, or a signed amendment hereto. These Terms shall also apply to any repaired, replaced, or reperformed Work provided by Vendor hereunder.

SCOPE OF WORK. Vendor shall provide the Work described in, and in compliance with the Order. Unless otherwise specified in the Order, Vendor shall furnish all personnel, equipment, supplies, facilities, and services necessary to carry out the Work. In the event SIONYX’s use of the Goods or Services requires a license from the manufacturer or other third-party, Vendor shall obtain, provide, and deliver to SIONYX (without any further cost to SIONYX) all such licenses.

ACCEPTANCE OF ORDER. This Order is deemed accepted and effective on the earlier of: (i) Vendor’s written acceptance of the Order, (ii) Vendor’s commencement of the Work, or (iii) the Vendor accepting any payment from SIONYX for the Work.

DELIVERY. The Work shall be delivered or performed in accordance with the schedule, shipping instructions and delivery location set forth on the face of the PO. The Vendor shall be reasonable for any and all additional costs incurred as a result of Vendor’s failure to comply with SIONYX’s delivery and shipping instructions. Unless otherwise set forth on the face of the PO, all Goods shipped under the PO shall be delivered FOB Destination, INCOTERMS 2020; and:

Delivery Date & Quantity

Time is of the essence in this Order.
The date specified for delivery is the required delivery date at SIONYX’s facility. Vendor will confirm acceptance of the delivery date or propose a new delivery date (the “Promise Date”) when it accepts the Order.
SIONYX has the right to refuse, at Vendor’s expense, any Goods delivered more than two (2) business days prior to the scheduled delivery date, and Vendor shall redeliver such Goods on the scheduled delivery date.
If SIONYX chooses to retain any Goods delivered in advance of the scheduled delivery date, SIONYX may make payment in accordance with the original delivery schedule.
If Vendor fails to deliver conforming Goods in full on the delivery date, SIONYX may terminate the Order immediately by providing written notice to Vendor and Vendor shall indemnify SIONYX against any losses, claims, damages, and reasonable costs and expenses directly attributable to Vendor 's failure to deliver the Goods on the delivery date.
If Vendor delivers more than the quantity of Goods ordered, SIONYX may, at its sole discretion, keep the additional quantity with no increased cost to SIONYX, or reject all or any excess Goods. Any such rejected Goods shall be returned to Vendor at Vendor's risk and expense.
Acceptance of early or late deliveries shall not be deemed a modification of Vendor’s obligation to make future deliveries in accordance with the delivery schedule on the face of the PO.

Delivery shall be deemed complete as follows:

For Goods, when the required quantity goods have been actually received and accepted by SIONYX at the Delivery Location, notwithstanding delivery to any carrier.
For Services, when the services have been performed, received, and accepted by SIONYX.

Goods shall be packed for shipment according to SIONYX's instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition and consistent with industry standards. Where applicable, for electrostatic sensitive devices (ESD) parts, Vendor shall ensure Goods are properly packaged and identified as required in ANSI/ESD-S20.20 (e.g. placed in conductive or static-dissipative packages, tubes, carriers, conductive bags, etc., for shipment) with the packaging clearly indicating that it contains electrostatic sensitive goods. Vendor must provide SIONYX reasonable prior written notice if it requires SIONYX to return any packaging material. Any return of such packaging material shall be made at Vendor's expense.

INSPECTION. Vendor is fully responsible for the design, fabrication and construction of the Goods and for compliance with all terms, conditions, specifications, drawings and codes. SIONYX shall have the right to inspect the Goods and Vendor’s manufacturing processes and facilities used in production of the Goods at all reasonable times. Vendor shall provide all information, facilities, and assistance necessary for safe and convenient inspection without additional charge. SIONYX shall have a reasonable time, but not less than thirty (30) days after receipt to inspect the Goods. No such inspection (or election not to inspect) shall relieve Vendor of its obligations to furnish all Work in strict accordance with the requirements of this Order and SIONYX shall have the right to conduct further inspections after Vendor has carried out its remedial actions. It is expressly agreed that inspections and/or payments prior to delivery shall not constitute final acceptance.

If any nonconforming Work is discovered, SIONYX may, at its sole option:

accept the Work at a reasonably reduced price;
require Vendor to promptly repair, replace, or reperform the Work at Vendor’s expense, including all related shipping and transportation costs;
return at Vendor’s expense and require Vendor to reimburse the purchase price of rejected Goods; or
return, reperform, repair, replace, or reprocure the nonconforming Work at Vendor’s expense if Vendor’s repair, replacement, reperformance, or reimbursement of Work is not timely or satisfactory to SIONYX.

PRICE. In consideration of the Work, SIONYX shall pay to Vendor the amount(s) described in the Order (“Contract Price”). The Contract Price includes the price of the Goods and/or Services provided. Other costs, which may include packaging, shipping/transportation, freight charges, insurance, duties, fees, installation, and all applicable taxes will be separately priced.

INVOICES. Vendor must submit a Proper Invoice (defined below) to SIONYX in order to be paid for the Work. For purpose of this Order, a “Proper Invoice” shall mean, at a minimum, an invoice which contains Vendor name, Vendor address, the SIONYX Order number associated with this work, invoice date, a description of the Goods/Services being invoiced, unit price(s), date(s) of delivery and/or service and total purchase price. SIONYX reserves the right to reject any and all invoices which do not follow the specifications outlined in this section. The Vendor will submit the invoice to SIONYX upon delivery of the Goods and/or completion of the Services. Invoices shall be emailed to AP@SIONYX.com.

PAYMENT. SIONYX shall pay Vendor in U.S. Dollars on or before the latter of sixty (60) days from the later of (i) the receipt of a Proper Invoice, or (ii) acceptance of the Work covered by a Proper Invoice. Payment will be made by the method specified in the Vendor’s registration form. SIONYX may make any adjustments in Vendor’s invoices due to shortages, late delivery, rejections, or other failure to comply with the requirements of this Order before payment. Payment shall not constitute final acceptance. SIONYX will not pay late payment penalties or fees. SIONYX is not obligated to pay any invoice received from Vendor more than 120 days after SIONYX accepts the Work or receives the Goods.

NOTICES; REPRESENTATIVES. Any notices hereunder shall be sent to individuals and addresses listed on the PO. Notices shall be in writing and may be delivered by electronic mail in PDF format; by hand; by U.S. Mail, postage prepaid; or by a nationally recognized courier service. SIONYX’s buyer named on the Order, or their authorized delegate in the event they are unavailable, are the only individuals authorized to act on behalf of SIONYX under this Order. Discussions with SIONYX that affect the Contract Price, schedule, Work, and Order terms shall be made only with the authorized SIONYX buyer or authorized delegate.

CHANGES. SIONYX may from time to time, by written notice to Vendor, suspend, stop, or make changes in the Work. If any such suspension, stoppage, or change causes a material increase or decrease in the cost of, or the time required for the performance of any part of the Work, the Parties shall negotiate an appropriate equitable adjustment in the price, or delivery schedule, or both, and shall modify the Order accordingly.

As a condition precedent to any equitable adjustment, Vendor must notify SIONYX in writing of Vendor’s request for an equitable adjustment, along with sufficient information, documentation, and cost calculations supporting the amount claimed. Unless otherwise directed by SIONYX, requests by Vendor for equitable adjustment must be received by SIONYX (a) within ten (10) days from the date Vendor receives notice from SIONYX of a change. Failure to agree to any adjustment shall be considered a dispute and resolved in accordance with Section 22 (Disputes).

Any change made by Vendor without SIONYX’s written approval shall be deemed voluntary by Vendor and not compensable under the Order. Nothing in this Article shall excuse Vendor from proceeding with performance of the unchanged portions of the Order.

Notwithstanding the above or any other provision of these Terms, Vendor agrees that changes to the Work that may be required to meet the performance requirements specified in the Order shall not entitle the Vendor to any adjustment in either price or delivery.

PROPRIETARY INFORMATION. The Parties may disclose proprietary information to each other as part of this Order. Each Party agrees that it will:

only use or disclose the other Party’s proprietary information in performance of this Order (all other use or disclosure requires written approval);
limit access to the other Party’s proprietary information to those employees, consultants, agents, or attorneys (“Representatives”) who must have access to it for purposes of this Order. All Representatives must be under a confidentiality agreement with terms at least as restrictive as those contained herein, and each Party shall be responsible and liable for its Representatives’ compliance hereunder.
use the same degree of care to maintain and protect the other Party’s proprietary information as it applies to its own proprietary information of like importance, but in no event with less than a reasonable degree of care.

The obligations regarding the protection and use of proprietary information disclosed hereunder shall survive and continue for a period of five (5) years after the expiration or earlier termination of this Order.

PUBLICITY. No news releases, marketing, public announcement, denial, or confirmation of any part of the subject matter of this Order shall be made without the prior written consent of SIONYX. Vendor shall not use the name, logo, or trademark of SIONYX without SIONYX’s prior written consent. The restrictions of this paragraph shall survive the completion or termination of this Order.

PROPRIETARY RIGHTS.

SIONYX Property. All drawings, tools, jigs, dies, fixtures, materials, specifications, information, data, software, and other property supplied or paid for by SIONYX shall be and remain the property of SIONYX (“SIONYX’s Property”), which shall be returned to SIONYX upon SIONYX’s request. Vendor shall use SIONYX’s Property only in the performance of the Work under this Order, unless SIONYX consents otherwise in writing.
Intellectual Property. Any invention or intellectual property first conceived, authored, developed, or otherwise generated by Vendor in the performance of this Order, or which is derived from or based on the use of SIONYX Property (collectively, the “Foreground IP”), shall be considered to be the property of SIONYX. Vendor hereby assigns its rights in the Foreground IP to SIONYX and shall execute such documents necessary to perfect SIONYX’s title thereto. Unless otherwise expressly agreed in a contemporaneous or subsequent writing to the contrary or otherwise expressly set forth in this Order, any work performed pursuant to this Order which includes any copyright interest shall be considered a “work made for hire.” To the extent any of such works do not qualify as a “work made for hire,” Seller hereby assigns to SIONYX all its intellectual property rights, including its copyright rights, in such works effective immediately upon creation of such works, including when they are first fixed in a tangible medium.

WARRANTY. In addition to Vendor’s standard warranty, Vendor warrants that:

If Goods are being supplied under this Order, such Goods shall (i) be free from defects in design, material, and workmanship, (ii) be suitable for their intended use, (iii) be new, and (iv) conform to applicable specifications, drawings, and standards of quality and performance.
If Services are being provided, such Services shall be performed (i) in a good and workmanlike manner, (ii) by personnel with the requisite experience, skill, qualifications, training, and licenses, and (iii) in accordance with the applicable professional standards currently recognized in the industry.
The Work including but not limited to manufactured products, machines, devices, material, software, and firmware, which are not of SIONYX’s design, composition, or manufacture, shall be free and clear of infringement of any valid patent, copyright, trademark, mask works, trade secret, or other proprietary rights owned or controlled by a third party.
The Work will be performed in compliance with all applicable laws or regulations, including those described in Sections 32 (Compliance with Government Laws and Requirements) and 32 (Equal Opportunity).

The foregoing warranties shall survive any delivery, inspection, acceptance, or payment by SIONYX for the longer of (i) one (1) year from delivery of Goods or performance of Services, or (ii) Vendor’s standard warranty period.

INDEMNIFICATION. “Claims” shall mean any and all allegations, claims, actions, suits, demands, damages, liabilities, losses, obligations, settlements, judgments, costs and expenses, including, without limitation, reasonable attorneys’ fees and costs. “SIONYX Indemnitees” shall mean SIONYX, and its directors, officers, employees, agents, affiliates, vendors, suppliers, and customers. “Vendor Agents” shall mean Vendor and its directors, officers, employees, agents, affiliates, vendors, subcontractors and suppliers.
Vendor shall indemnify and defend SIONYX Indemnitees from and against any and all Claims which arise out of, or relate to:
- Vendor Agents’ acts or omissions while on the Premises (defined in Section 29);
- Vendor Agents’ intentional or willful misconduct, negligence, or fraud;
- personal injury, death, or property loss or damages attributed to, or caused by, the Work; or
- Vendor Agents’ breach of any representation, warranty, promise, obligation, or covenant made herein, including the warranties in Section 15.
SIONYX shall promptly notify Vendor of any actual or prospective Claims for which defense or indemnification is sought. In the event that defense or indemnification is sought for a Claim, Vendor shall retain qualified, independent counsel that is reasonably acceptable to SIONYX, with demonstrable experience defending Claims of the type to be defended.

After Vendor assumes the defense of a Claim, Vendor may contest, pay, or settle the Claims without the consent of SIONYX only if that settlement (1) does not entail any admission on the part of the SIONYX that it violated any law or infringed the rights of any person, (2) has no effect on any other Claim against SIONYX, (3) provides as the claimant’s sole relief monetary damages that are paid in full by Vendor, and (4) requires that the claimant release SIONYX from all liability alleged in the Claim.

LIMITATION OF LIABILITY. EXCEPT FOR BREACH OF SECTION 12 (PROPRIETARY INFORMATION), AND THE INDEMNIFICATION OBLIGATIONS UNDER SECTION 16, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR OTHER INDIRECT DAMAGES OF ANY KIND, OR LOST PROFITS, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH DAMAGES ARE SOUGHT, AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

INSURANCE REQUIREMENTS. Without prejudice to Vendor’s obligation to indemnify SIONYX, Vendor shall procure at its expense and maintain for the duration of this Order, and ensure that its Vendor Agents (defined in Section 16) who provide Work under this Order also procure and maintain, the insurance policies required below with financially responsible insurance companies, and with policy limits not less than those indicated below.

Workers’ Compensation: Coverage for statutory obligations imposed by the laws of the State(s) in which Vendor will perform the Work.
Business Automobile Liability: Coverage for use of all owned, non-owned, and hired vehicles with limits of not less than $1,000,000 per occurrence combined single limit for bodily injury and property damage liability.
Commercial General Liability: Coverage for third party bodily injury and property damage, personal injury, products and completed operations, contractual liability, and independent contractors’ liability with limits not less than $1,000,000 per occurrence and $2,000,000 in the aggregate.

The required insurance coverages above shall be primary and non-contributing with respect to any other insurance that may be maintained by SIONYX. Notwithstanding any provision contained herein, Vendor Agents are not insured by SIONYX and are not covered under any policy of insurance that SIONYX has obtained or has in place. Any self-insured retentions, deductibles, and exclusions in coverage in the policies required under this Section shall be assumed by, for the account of, and at the sole risk of Vendor and shall be paid by Vendor. In no event shall Vendor’s liability under this Order be limited to the extent of any insurance or the minimum limits required herein. In the event Vendor Agents enter onto SIONYX Premises (defined in Section 29) to perform the Work, Vendor shall name SIONYX as an additional insured on its insurance policies.

Upon SIONYX’s request, Vendor shall provide certificates of insurance evidencing the insurance policies above, including evidence of additional insured status. Failure of SIONYX to demand such certificates or to identify any deficiency in the insurance provided shall not be construed as or deemed to be a waiver of Vendor’s obligations to maintain the above insurance coverages.

TERMINATION.

Termination for Convenience. SIONYX may terminate this Order, in whole or in part at any time by giving ten (10) days prior written notice to Vendor.
Termination for Default. Either Party may, by written notice to the other Party, terminate this Order for default upon the occurrence of any of the following:

A Party becomes insolvent or the subject of proceedings under any law relating to bankruptcy or the relief of debtors, or admits in writing its inability to pay its debts as they become due.
A Party materially breaches its obligations under this Order, and does not cure such breach within a period of ten (10) days after receipt of notice from the non-breaching Party specifying such breach.

If this Order is terminated due to Vendor’s material breach, SIONYX may procure or otherwise obtain, upon such terms and in such manner as SIONYX may deem appropriate, supplies or services similar to the Work terminated, and Vendor shall be liable to SIONYX for any excess costs of such similar supplies or services.

Effect of Termination. At or after termination, whether in whole or in part, Vendor shall transfer title and deliver to SIONYX, in the manner and to the extent requested in writing by SIONYX, complete or partially complete Work, including articles, materials, parts, tools, dies, patterns, jigs, fixtures, plans, drawings, information, and contract rights as Vendor has produced or acquired during performance of the terminated part of this Order.

If this Order is terminated for convenience, SIONYX will equitably reimburse Vendor following the procedures outlined in Section 11 (Changes). If this Order is terminated for default, SIONYX will pay Vendor the Contract Price for completed items delivered to and accepted by SIONYX, and the fair value of the other items so requested and delivered. Regardless of the reason for termination, in no event shall such value exceed the Contract Price for such items.

To the extent this Order is terminated in part, Vendor shall continue performing the non-terminated parts of this Order. SIONYX shall have no obligations to Vendor with respect to the terminated part of this Order except as herein provided. In case of Vendor’s material breach of this Order, SIONYX’s rights as set forth herein shall be in addition to SIONYX’s other rights at law or in equity not set forth in this Order.

FORCE MAJEURE. Neither Party shall be liable for damages resulting from default due to causes beyond that Party’s reasonable and foreseeable control, and without such Party’s fault or negligence. Such causes include, but are not limited to, acts of God or of the public enemy, acts of the government in its sovereign or contractual capacity, fires, floods, epidemics, terrorism, quarantine restrictions, strikes, freight embargoes, and unusually severe weather. In the event that performance of this Order is hindered, delayed or adversely affected by causes of the type described above (“Force Majeure”), then the Party whose performance is so affected shall so notify the other Party’s authorized representative in writing and, at SIONYX’s option, this Order may be changed or terminated with such adjustments to delivery schedule and Contract Price as may reasonably be required by the existence of Force Majeure.

GOVERNING LAW. This Order shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to its conflict of law provisions. The rights and obligations of the Parties under this Order shall not be governed by the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods or the United Nations Convention on the Limitation Period in the International Sale of Goods, as amended.

DISPUTES. Any claim, controversy, or dispute that may arise under or in connection with this Order (“Dispute”), shall be reduced to writing and submitted for resolution to ascending levels of management of the respective Parties. Any dispute that cannot be resolved to both Parties’ mutual satisfaction, after good faith negotiations, within ninety (90) days from the date the written claim is received by the other Party, may be settled by a court of competent jurisdiction. The Parties agree to the personal and exclusive jurisdiction and venue of the federal and state courts of Middlesex and Essex Counties, Massachusetts. To the extent permitted by applicable law, the Parties waive any right they may have to a trial by jury.

Notwithstanding the above, either Party may seek injunctive or other equitable relief at any time in any court of competent jurisdiction for breach of its confidentiality obligations under Section 12 or infringement of its intellectual property rights.

Pending any prosecution, appeal, or final decision or settlement of any Dispute, Vendor shall proceed diligently, as directed by SIONYX, with the performance under this Order.

Nothing in this Section nor any authorization or offer that may be made shall be deemed to constitute acceptance or acknowledgment by SIONYX of the validity of Vendor’s claim or any part thereof, nor be deemed to limit or in any way restrict SIONYX from taking any actions, including available remedies, it deems appropriate to protect its own interests.

NOTIFICATION OF INFORMATION SECURITY INCIDENT. For purposes of this clause, an “Information Security Incident” means any actual or suspected data breach, cyber incident, or other incident that Vendor actually is, or reasonably should be, aware involves or otherwise concerns the loss, misuse, unauthorized or unintended access to, or modification or destruction of SIONYX- provided (i) data, (ii) systems, (iii) Proprietary Information, (iv) Controlled Unclassified Information (as that term is defined 32 CFR §2002.4) (collectively, (i) through (v) are referred to as “Sensitive Information”).

Vendor will promptly, but in no event later than seventy two (72) hours following Vendor’s learning of an Information Security Incident, notify SIONYX’s Purchasing Department at SC@SIONYX.com of such Information Security Incident. At Vendor’s sole expense, Vendor will immediately (a) investigate any Information Security Incident; (b) undertake all efforts to secure SIONYX's Sensitive Information, and mitigate the impact of the Information Security Incident; (c) provide ongoing, timely, and relevant information to SIONYX, including requests for information and status updates; (d) report to SIONYX, no less frequently than once per week until the Information Security Incident has been resolved, Vendor’s mitigation efforts related to the Information Security Incident; (e) cooperate with SIONYX to provide timely notice to affected third parties, if necessary; (f) cooperate with SIONYX in connection with any independent investigation that SIONYX may desire to conduct with respect to such Information Security Incident; (g) comply with all legal and regulatory requirements, regarding safeguarding of Sensitive Information, including notice and reporting requirements, regarding the Information Security Incident; and (h) cooperate with SIONYX in identifying any reasonable steps that should be implemented to limit, stop, or otherwise remedy any Information Security Incident. For three (3) years following the resolution of an Information Security Incident, SIONYX shall have access to and the right to examine, reproduce, and audit Vendor records related to the Information Security Incident and Vendor’s obligations under this clause.

GENERAL RELATIONSHIP. Vendor is not an employee of SIONYX for any purpose whatsoever. Vendor agrees that in all matters relating to this Order, it shall be acting as an independent contractor and shall assume and pay all liabilities and perform all obligations imposed with respect to the performance of this Order. Vendor shall have no right, power, or authority to create any obligation, expressed or implied, on behalf of SIONYX or it Customer and shall have no authority to represent SIONYX as an agent.

NON-SOLICITATION. Vendor shall not solicit SIONYX’s employees for employment at any time during the performance of this Order. The foregoing restriction shall not prohibit the placement of advertising of general circulation that may be received or viewed by SIONYX’s employees.

NON-WAIVER OF RIGHTS. The failure of a Party to insist upon strict performance of any of the terms and conditions in this Order, or to exercise any rights or remedies, shall not be construed as a waiver of its rights to assert any of the same or to rely on any such terms or conditions at any time thereafter.

EXPORT AND IMPORT COMPLIANCE. Vendor shall comply with the laws and regulations of the United States relating to exports and foreign transactions, including, but not limited to, the International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations (EAR). In particular, Vendor shall not disclose any technical data, nor deliver or export any product manufactured by use of technical data, out of the United States, or to foreign entities within the United States, without proper written authorization from the U.S. Government.

ASSIGNMENTS AND SUBCONTRACTS. This Order is not assignable and shall not be assigned by Vendor without the prior written consent of SIONYX. Further, Vendor agrees to obtain SIONYX’s approval before subcontracting any substantial portion of this Order.

ENTRY ON SIONYX’S FACILTIES. In the event a Vendor Agent enters the facilities or property of SIONYX (the “Premises”) for any reason in connection with this Order, then Vendor shall (a) comply with all security, safety, rules of conduct, badging and personal identity, and related requirements of SIONYX while on the Premises; and (b) provide information reasonably required by SIONYX to ensure proper identification of the Vendor Agent. SIONYX may, in its sole discretion, have Vendor remove any Vendor Agent from the Premises and request that such Vendor Agent not be reassigned to perform any Work or to enter the Premises under this Order.

END OF LIFE AND SUPPORT. Vendor shall notify SIONYX in writing if any Goods, including any parts, subcomponents, components, assemblies, or subassemblies, in the Goods delivered hereunder, including those supplied by Vendor’s lower-tiered suppliers, are or are expected to be going out of production or will no longer be commercially available. Such notice shall be: (i) provided to SIONYX at least twelve (12) months prior to the anticipated date of discontinuance or unavailability, or if twelve (12) months’ notice is not reasonable given the circumstances, as soon as practically possible; and (ii) specifically identify the name and address of the supplier and the part by name, part number, function, and the location in the Good delivered. In such case, Vendor shall make available to SIONYX and hereby grants SIONYX a royalty free license to use all drawings, specifications, data, and know-how to enable SIONYX or SIONYX’s customer to manufacture or procure the Good, component, subassembly or spare part.

QUALITY CONTROL AND NON-CONFORMANCE

The Goods shall conform strictly to the description, plans, specifications, and samples. If there are no specific descriptions, plans, specifications, or samples, and to the extent that they are not explicit, the Goods shall be new, of the latest design or model conforming to SIONYX’s requirements, and of the best quality.
Vendor may not substitute Goods or parts of Goods. If SIONYX receives Goods that do not conform to these requirements, SIONYX may reject such shipment in whole or in part by notifying Vendor. Vendor shall remove such rejected Goods at Vendor’s expense within ten (10) days after the date of SIONYX’s notice to Vendor. If SIONYX determines or has reason to believe that the Goods contain suspect and/or counterfeit part(s), SIONYX shall provide Vendor notice, impound the suspect /counterfeit parts and report all occurrences to ERAI or the Government Industry Data Exchange Program (GIDEP).
Vendor shall notify SIONYX within forty-eight (48) hours upon Vendor’s discovery that a Good or Service is non-conforming. If Vendor delivers non-conforming Goods or Services, SIONYX may, at its option and Vendor’s expense:

reject the Goods or Services for a full refund or credit;
accept all or part of the Good or Service at a mutually agreed upon price reduction or other consideration;
require Vendor to promptly correct or replace the Goods or Services;
obtain conforming Goods or Services from another source;
cancel the Purchase Order for default, or
exercise any other applicable rights or remedies.

SIONYX shall specify in writing the reason for any rejection of non-conforming Goods or Services. If SIONYX elects to reject the non-conforming Goods or Services, Vendor shall provide disposition instructions regarding the non-conforming Goods or Services, and if applicable, the date the non-conforming Goods or Services will be repaired or replaced and returned to SIONYX. Vendor shall bear all risk of loss for the non-confirming Goods or Services and be liable for any increase in costs, including re-procurement costs, attributable to SIONYX’s rejection of the non-conforming Goods or Services. If SIONYX rejects Goods or Services as non-conforming and Vendor does not acknowledge SIONYX’s rejection and plan of disposition for the Goods or Services, SIONYX will be entitled to dispose of the non-conforming Goods or Services without liability to Vendor. Additionally, SIONYX may elect to return the nonconforming Goods or Services back to Seller at Seller’s risk of loss and expense.

COMPLIANCE WITH GOVERNMENT LAWS AND REQUIREMENTS. Vendor shall, at all times, adhere to the highest standards of business ethics, and carefully comply with all applicable federal, state, and local laws, statutes, acts, regulations, rules, ordinances, government directives, and orders now in effect or hereafter enacted, including those related to labor relations, wages, hours of employment, combating trafficking in persons, equal employment opportunity data protection, environmental matters, non- segregated facilities, health and safety, and procurement integrity (e.g., the Procurement Integrity Act, 41 U.S.C. § 2104-107). Vendor shall obtain at its own cost any permits or licenses required to perform the Work.

EQUAL OPPORTUNITY. SIONYX and Vendor shall abide by the requirements of 41 CFR 60–1.4(a), 60–300.5(a) and 60– 741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and Vendors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or veteran status.

MODIFICATION. Any modification or change to this Order must be made in writing and signed by authorized representative of the Parties.

SEVERABILITY. To the extent permitted by applicable law, the Parties hereby waive any provision of law that would render any clause of this Order invalid or otherwise unenforceable in any respect. In the event a provision of this Order is held to be invalid or unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Order will continue in full force and effect.

ENTIRE AGREEMENT. The Parties agree that this Order, including all documents incorporated herein by reference, constitute the entire agreement and understanding between the Parties and supersedes and replaces any and all prior or contemporaneous representations, agreements or understandings of any kind, whether written or oral, relating to the subject matter hereof.

SPECIAL CLAUSES APPLICABLE TO CERTAIN ORDERS. If any of the following Special Clauses do not apply to this specific Order, such clauses shall be deemed self-deleting.

HANDLING OF PERSONAL INFORMATION. This Section shall apply if Vendor is handling “Personal Information” of Massachusetts residents, as defined in Massachusetts Information Security Regulations, 201 Code of Mass. Regs. 17.00 et seq. (the “IS Regulations”).

Vendor agrees that, as long as it has access to or maintains copies of Personal Information, it shall: (a) comply with the IS Regulations, (b) promptly notify SIONYX of any suspected or actual data breach involving Personal Information, and (c) cooperate with SIONYX to investigate and remediate any suspected or actual data breach involving Personal Information.

SUSPECT/COUNTERFEIT PARTS. This Section applies if Vendor will be providing Goods under this Order.

“Counterfeit Work” means Work that is (a) an unlawful or unauthorized reproduction, substitution, or alteration that has been mismarked, misidentified, or otherwise misrepresented to be an authentic, unmodified item from the Original Component Manufacturer (OCM) or Original Equipment Manufacturer (OEM); (b) approved Work that has reached a design life limit or has been damaged beyond possible repair, but is altered and misrepresented as acceptable; (c) an item that does not contain the proper external or internal materials or components required by the OCM/OEM or that is not constructed in accordance with OCM/OEM specification; (d) an item or component thereof that is used, refurbished or reclaimed but is misrepresented as being a new item; (e) an item that has not successfully passed all OCM/OEM-required testing, verification, screening and quality control but is misrepresented as having met or passed such requirements; (f) an item with a label or other marking intended, or reasonably likely, to mislead a reasonable person into believing a non-OCM/OEM item is a genuine OCM/OEM item when it is not, including without limitation the false identification of grade, serial number, lot number, date code, or performance characteristics; or (g) an item designated as a suspect counterfeit part by the U.S. Government, such as parts listed in alerts published by the Defense Contract Management Agency under the Government-Industry Data Exchange Program (GIDEP). Parts that have been modified pursuant to a specific SIONYX purchase order requirement, such as refinished, up-screened, or up-rated parts that are properly identified as such are not considered Counterfeit Work.

Vendor represents and warrants that it shall not deliver to SIONYX any articles, components, goods, assemblies or other items that constitute Counterfeit Work. Vendor’s warranty against Counterfeit Work shall survive any termination or expiration of this Order.

Vendor shall only purchase products to be delivered or incorporated as Work to SIONYX directly from the OCM/OEM, or from a distributor expressly authorized by the OCM/OEM. Work shall not be acquired from independent distributors or brokers unless approved in advance in writing by SIONYX.

Vendor shall immediately notify SIONYX if Vendor becomes aware or suspects that it has furnished Counterfeit Work. SIONYX may impound the Counterfeit Work for further investigation as to its authenticity, and Vendor shall cooperate fully with any such investigation. SIONYX shall not be required to return such Counterfeit Work to Vendor during such investigation or thereafter. If, after investigation, SIONYX concludes in its sole judgment that Work delivered by Vendor constitutes Counterfeit Work, SIONYX may report such facts to the GIDEP.

If the Orders calls for the delivery of electronic parts, the following additional requirements apply: (i) Vendor shall comply with DFARS 252.246-7007 and 252.246-7008, and the definition of "electronic part" therein shall apply (ii) Vendor shall maintain a process that complies with the most recent revision of SAE standard AS 5553 - Counterfeit Electronic Parts, Avoidance, Detection, Mitigation, and Disposition; and (iii) If Vendor is an OCM/OEM-authorized distributor of electronic parts, Vendor shall maintain a process that complies with the most recent version of SAE standard AS 6496 - Fraudulent/Counterfeit Electronic Parts: Avoidance, Detection, Mitigation, and Disposition - Authorized/Franchised Distribution. If Vendor is not an OCM/OEM or an OCM/OEM- authorized distributor, Vendor shall comply with the most recent revision of SAE standard 6081 - Fraudulent/Counterfeit Electronic Parts: Avoidance, Detection, Mitigation, Disposition – Distributors. In the event of any irreconcilable conflict between this clause and DFARS 252.246-7007 and 252.246-7008, the DFARS shall have precedence.

When requested by SIONYX, Vendor shall provide OCM/OEM certificates of conformance and documentation that demonstrates an unbroken chain of custody of the affected items from the applicable OCM/OEM to Vendor, including without limitation the name and location of any supply chain intermediaries from the OCM/OEM to the source supplying directly to Vendor. Upon reasonable notice, SIONYX may audit or inspect Vendor's records or internal processes to determine compliance with this clause or DFARS 252.246-7007, if applicable.

In the event that Work delivered under these Terms constitutes or includes Counterfeit Work, Vendor shall, at its expense, promptly replace such Counterfeit Work with genuine Work conforming to the requirements of this Order. Notwithstanding any other provision in this Order, Vendor shall be responsible and liable for all of SIONYX's internal and external costs relating to the removal and replacement of Counterfeit Work, including without limitation SIONYX’s costs of removing Counterfeit Work, of installing replacement Work and of any testing necessitated by the reinstallation of Work after Counterfeit Work has been exchanged. The remedies contained in this paragraph are in addition to any remedies SIONYX may have at law, equity or under other provisions of these Terms.

Vendor shall include this clause or equivalent provisions in lower tier subcontracts for the delivery of items that will be included in or furnished as Work to SIONYX.

USE OF OPEN SOURCE SOFTWARE. This Section applies if Vendor uses or embeds Open Source Software into the Work being delivered to SIONYX.

For purposes of this Section, “Open Source Software” shall mean (a) any software that incorporates or embeds software in, or uses software in connection with, as part of, bundled with, or alongside any open source, publicly available or “free” software, library or documentation, including, without limitation, the General Public License (“GPL”), the Lesser/Library GPL (LGPL), the Affero GPL (“APL”), the Apache license, the Berkeley Software Distribution (“BSD”) license, the MIT license, the Artistic License (e.g., PERL), the Mozilla Public License (“MPL”), or variations thereof, including without limitation licenses referred to as “Free Software License,” “Open Source License,” “Public License,” or “GPL Compatible License”; (b) software that is licensed under an Open Source Software License; or (c) software provided under a license that subjects the delivered software to any Open Source Software license, requires the delivered software to be licensed for the purpose of making derivative works or be redistributable at no charge, or obligates SIONYX to sell, loan, distribute, disclose, or otherwise make available or accessible to any third party the delivered software, or any portion thereof, in object code and/or source code formats, or any products incorporating the delivered software, or any portion thereof, in object code and/or source code formats.

Vendor shall obtain SIONYX’s prior written consent before using or embedding any Open Source Software into the Goods. If Vendor fails to obtain such written authorization, Vendor shall indemnify and defend SIONYX Indemnitees in accordance with Section 17 (Indemnification) from and against any Claims relating to SIONYX Indemnitees use of the Open Source Software.

ENVIRONMENTAL HEALTH & SAFETY SERVICES. This Section applies if the Vendor will be providing Environmental Health & Safety (“EHS”) Services pertaining to and performed on the Premises (including services involving asbestos, hazardous waste, remediation, wastewater, fire safety, and toxic gas monitoring).

Vendor shall perform the EHS services under these Terms consistent with the level of care and skill ordinarily exercised by EHS professionals under similar circumstances. Vendor represents and warrants that Vendor has the capability, experience, expertise, and means required to perform the EHS services contemplated under these Terms and that all services shall be performed using personnel, equipment, and material qualified and/or suitable to complete the services. Vendor shall immediately inform SIONYX of the discovery of any spill or release that, pursuant to environmental laws, must be immediately reported. Vendor will be solely responsible for the disposal of any sample contaminated material taken offsite by Vendor.

FEDERAL GOVERNMENT FLOW-DOWN PROVISIONS. This Section applies if the Order is issued pursuant to a prime contract between SIONYX and the U.S. Government (as indicated on the face of the PO).

Vendor shall comply with all applicable Federal flow-down provisions in Attachment A.