ecoATM Terms and Conditions

1. Definitions.

Whenever used in this Order, the following terms shall have the following meanings: (a) "Buyer" means ecoATM, LLC; (b) "Seller" means the person, partnership, corporation or other entity specified as the seller; (c) "Goods" means all of the goods, services, information, drawings, documents and other items furnished or to be furnished under this Order to Buyer; (d) "specified" means specified on the face page of or elsewhere in this Order; and (e) "Indemnitees" means Buyer, its successors and assigns, and the respective directors, officers, employees, agents and representatives of Buyer and its successors and assigns. If Seller is composed of more than one person or entity, each such person and entity shall be jointly and severally liable as Seller under this Order.

2. Acknowledgment.

Seller shall be deemed to have agreed to all of the provisions of this Order upon the first of the following to occur: (a) Seller signs this Order and returns a signed copy to Buyer; (b) Seller ships the Goods to Buyer in accordance with this Order; or (c) Seller acknowledges this Order by any other commercially acceptable means. Buyer may, at any time prior to such occurrence, cancel this Order without any liability or obligation of, or cost to, Buyer.

3. Price and Payment.

Payment of the specified prices shall constitute full compensation for the Goods and for satisfactory performance of all of Seller's obligations under this Order. Such prices shall be subject to adjustment only as specifically provided for elsewhere in this Order. Unless otherwise specified, such prices include all applicable taxes, assessments and other amounts payable to governmental authorities. Seller shall separately invoice Buyer for any such amounts payable by Buyer. Unless otherwise specified, Buyer shall make payment within 45 days after the later of Buyer's receipt of Seller’s correct invoice or Buyer's acceptance of the Goods.

4. Delivery.

Seller shall properly package the Goods for protection against damage or deterioration from shipment, handling, storage or other cause. Seller shall ship the Goods from the specified point of shipment F.O.B. Buyer's facility no later than the specified shipment date and shall deliver the Goods to Buyer at the specified destination no later than the specified delivery date.

5. Inspection.

The Goods shall at all times be subject to inspection, testing and expediting by Buyer. Seller shall provide Buyer sufficient, safe and proper access, equipment and facilities for any such inspection, test or expedition prior to shipment. No Goods shall be deemed accepted before final inspection by Buyer at the specified destination. No acceptance of any Goods shall be construed to result from any inspections, tests or delays or failures to inspect or test by Buyer. No inspection, test, delay or failure to inspect or test, or failure to discover any defect or noncompliance by Buyer shall relieve Seller of any of its obligations under this Order or impair Buyer's right to reject defective or noncomplying Goods or any other right or remedy of Buyer, even if Buyer knew of the defect or noncompliance, its substantiality or the ease of its discovery.

6. Warranty.

Seller warrants that: (a) the Goods shall be free from all defects in design, materials, workmanship and title; (b) the Goods shall be of good and suitable quality if no quality is specified; (c) all materials, components, parts and other items incorporated in the Goods shall be new and of the most suitable quality for their intended purpose; (d) the Goods do not and will not violate, infringe or misappropriate any patent, trademark, trade name, trade dress, copyright, trade secret or other similar proprietary right ('IPR"); and (e) the Goods shall conform with all the requirements of this Order and other specifications made by Buyer. Seller shall promptly correct any Goods that do not comply with this warranty. If Buyer requests Seller to make any such correction and Seller thereafter fails or indicates its inability or unwillingness to do so, then Buyer may correct (or cause to be corrected) the noncompliance by the most expeditious means available to it and charge to or otherwise recover from Seller the cost thereof. If Buyer rejects any Goods that do not comply with the foregoing warranty, Seller shall have a reasonable time to correct the noncompliance, but in no event more than two (2) weeks (“Correction Period”); if Seller fails to correct the noncompliance during that Correction Period , Buyer may cancel this Order as to the noncomplying portion of the Goods or entire Goods without any liability or obligation of, or cost to, Buyer and without prejudice to any other rights or remedies of Buyer with respect to such noncompliance (e.g., as to damages or cover).

7. Rejection.

Buyer may reject, refuse acceptance of or revoke acceptance of any Goods, or any tender thereof, which do not strictly comply with the requirements of this Order. Buyer shall notify Seller of any such rejection, refusal or revocation. In any such event, Buyer may, without prejudice to any other rights or remedies with respect to such noncompliance, elect to: (a) retain any or all of such Goods for repair, replacement or other correction by Buyer or others; (b) retain any or all of such Goods without correction; or (c) return any or all of such Goods with or without direction for correction by Seller. Seller shall promptly comply with any direction by Buyer for correction. Buyer shall be entitled to recover from Seller, by price reduction, credit, offset, invoice or otherwise, an equitable amount for the diminished value of any uncorrected Goods and all costs and 146431061.1 expenses incurred by Buyer in connection with Goods which are rejected or with respect to which acceptance is refused or revoked (including, but not limited to, all costs and expenses of correction by Buyer or others and all costs and expenses to return Goods to Seller for correction).

8. Indemnity.

Seller releases and shall defend, indemnify and hold harmless the Indemnitees from all claims, losses, liabilities, damages, costs, expenses (including, but not limited to, reasonable attorneys' fees) and royalties related to any claim, action, suit or proceeding involving the Goods, which claim, action, suit or proceeding is based upon (a) infringement (or alleged infringement) of any patent, copyright, trade name, trademark, trade secret or other proprietary right; (b) any breach of any warranty hereunder; or (c) a defect (or alleged defect) in any of the Goods or negligence (or alleged negligence) in the design or manufacture of the Goods. If any of the Goods constitutes an infringement of any patent, copyright, trade name, trademark, trade secret or other proprietary right, Seller shall: (i) procure for Buyer or any end user that receives the Goods directly or indirectly from Buyer the right to use the infringing item; or (ii) replace the infringing item with a substantially equal but non- infringing item.

9. Compliance with Laws.

9.1
Seller shall comply (and shall ensure that the Goods and Seller's subcontractors and suppliers of every tier comply) with all applicable laws, ordinances, rules, regulations, orders, licenses, permits and other requirements, now or hereafter in effect, of any governmental authority. Seller shall furnish such documents as may be required to effect or evidence such compliance. All laws, ordinances, rules, regulations and orders required to be incorporated in agreements of this character are incorporated in this Order by this reference. Seller certifies that all Goods shall be produced in compliance with the requirements of the Fair Labor Standards Act and all of the rules, regulations and orders issued thereunder, all as the same may have been or may be amended.

9.2
Seller will comply with all applicable Laws relating to the importation and exportation (including "deemed" exports) of Goods. Seller will obtain any necessary licenses, permits, approvals or other documentation required by applicable export control laws, regulations, rules, orders and other requirements of the U.S. and other governmental authorities having jurisdiction, including the U.S. Export Administration Regulations ("Export Control Laws") prior to the exportation or re-exportation of any Product, software or technology pursuant to this Agreement. Seller will not, directly or indirectly, export, re-export, transship, transfer, divert or otherwise dispose of any Goods: (a) to any person, firm, entity, country or countries, prohibited by Export Control Laws (including the prohibition against exports, (i) into, or to a national or resident of, any country subject to a U.S. embargo or similar export restrictions; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals, the U.S. Department of Commerce's Denied Persons List or Entity List, or other export control lists); or (b) for any purpose prohibited by Export Control Laws, including nuclear, chemical or biological weapons proliferation or development of missile technology.

10. Changes and Terminations.

10.1
Buyer may make changes in the requirements of this Order (including, but not limited to, additions to or deletions from any Goods, changes in quantities, drawings and specifications for the Goods, suspension of performance, changes in schedule and changes in shipment and delivery dates) by giving Seller written notice of such changes. If any such change causes an increase or decrease in the cost of or the time required for performance of this Order, an equitable adjustment in the prices and schedule under this Order may be made to reflect such increase or decrease.

10.2
Buyer may terminate this Order as to all or any portion of the Goods not then delivered to and accepted by Buyer by giving Seller written notice of such termination. In the event of any such termination, an equitable adjustment shall be made in the prices payable under this Order with respect to the terminated Goods; provided that such adjusted prices shall in no event exceed the total prices otherwise payable under this Order for the terminated Goods, less the sum of (a) the estimated costs (plus a reasonable allowance for profit) which would have been incurred by Seller to complete performance with respect to the terminated Goods and (b) the reasonable value of the terminated Goods at the time of such termination. No such termination shall relieve Buyer or Seller of any of their respective obligations under this Order as to any Goods not terminated. If Buyer purports to terminate or cancel all or any part of this Order for Seller's breach or default and it is determined that Seller was not in breach or default that would permit such termination or cancellation, then such termination or cancellation shall be deemed to have been a termination pursuant to this paragraph and the rights and obligations of the parties shall be determined accordingly.

10.3
Seller must, within thirty (30) days after Seller's receipt of any notice under paragraph 10.1 or 10.2 that does not set forth an acceptable equitable adjustment, submit to Buyer a written statement of any adjustment claimed. Seller shall not be entitled to any adjustment unless such written statement is submitted within such thirty (30) day period. Notwithstanding any 146431061.1 dispute or delay in arriving at a mutually acceptable equitable adjustment under paragraph 10.1 or 10.2, Seller shall immediately proceed with performance of this Order in accordance with any notice under paragraph 10.1 or 10.2. In making any equitable adjustment under paragraph 10.1 or 10.2, Seller shall not be entitled to: (a) any profit on deleted or terminated Goods; (b) any allowance for profit, overhead, underutilization of facilities or indirect costs related to deleted or terminated Goods; (c) any reallocation of cost, overhead or profit; (d) any increase in the prices for Goods not changed or terminated; (e) any price or other compensation with respect to deleted or terminated Goods which are standard stock or off-the-shelf items of Seller or any of Seller's subcontractors or suppliers of any tier; or (f) any compensation for materials, components, parts, equipment or other items not purchased by Seller specifically for performance of this Order. Seller shall in any event use its best efforts to minimize any adjusted prices and shall make available to Buyer for examination, copying and audit all records, receipts and other evidence of Seller's costs, together with such other information and documents as Buyer may reasonably request, to fully support and verify any adjustment. Seller shall promptly repay Buyer any amounts paid in excess of any adjusted prices.

11. Confidential or Proprietary Information and Property.

Seller shall keep confidential and otherwise protect from disclosure all information and property obtained by Seller in connection with this Order and identified as confidential or proprietary. Seller shall not use Buyer’s name, trademarks or other identifiers, or any opinions of Buyer’s employees, for advertisement or promotional purposes without prior written consent of Buyer. Unless otherwise expressly authorized by Buyer, Seller shall use such information and property, and the features thereof, only in the performance and for the purposes of this Order. Upon Buyer's request and in any event upon the completion, termination or cancellation of this Order, Seller shall return all such information and property to Buyer or dispose them according to Buyer’s direction. Seller shall ensure that all subcontracts, purchase orders and other agreements entered into by Seller or any of its subcontractors or suppliers of any tier related to the Goods or this Order shall provide to Buyer the same rights and protection with regard to such subcontractors and suppliers as are contained in this paragraph with regard to Seller.

12. Successors and Assigns.

Seller shall not (by contract, operation of law or otherwise) assign this Order or any right or interest in this Order, or delegate performance of any of its obligations under this Order, without the prior written consent of Buyer. Any such assignment or delegation without Buyer's prior written consent shall be voidable at Buyer's option. No such assignment or delegation, with or without Buyer's prior written consent, shall relieve Seller of any of its obligations under this Order. Subject to the foregoing restriction on assignment and delegation by Seller, this Order shall be fully binding upon, inure to the benefit of and be enforceable by Seller, Buyer and their respective successors, assigns and legal representatives.

13. Nonwaiver.

The failure of Buyer to seek strict performance by Seller of any of the provisions of this Order, or to exercise any rights or remedies under this Order, shall not be a waiver or relinquishment to any extent of its right to assert or rely upon any such provisions, rights or remedies in that or any other instance; rather, the same shall be and remain in full force and effect.

14. Applicable Law; Courts.

This Order shall be interpreted, construed and enforced in all respects in accordance with the laws of the State of California. Seller shall not commence or prosecute any suit, proceeding or claim to enforce the provisions of this Order, to recover damages for breach of or default under this Order, or otherwise arising under or by reason of this Order, other than in the federal and state courts located in San Diego County, California. Seller irrevocably consents to the jurisdiction and venue of such courts and to service of process by U.S. mail.

15. Time is of the Essence; Entire Agreement.

Time is of the essence of this Order. This Order sets forth the entire agreement. In those cases where a prior agreement exist between Buyer and Seller and a conflict of terms exist between this Order and that prior agreement, this Order shall supersede regarding the Goods . No amendment or modification of any provision of this Order (other than any change or termination pursuant to Section 10) shall be valid unless set forth in a written instrument signed by the party to be bound thereby. Buyer shall not be bound by, and specifically objects to, any term, condition or other provision which is different from or in addition to the provisions of this Order (whether or not it would materially alter this Order) and which has been proffered by Seller in any quotation, invoice, shipping document, acceptance, confirmation, correspondence or otherwise, unless Buyer specifically agrees to such provision in writing. The rights, remedies and warranties afforded to Buyer pursuant to any provision of this Order are in addition to and do not in any way limit any other rights, remedies or warranties afforded to Buyer by any other provisions of this Order, by any of Seller's subcontractors or suppliers of any tier or by law. 146431061.1