Terms & Conditions

MINIMUM ADVERTISING PRICE (“MAP”) Policy

To ensure effective marketing, sale and sales support for its products and brand, Blast Motion has implemented this Minimum Advertised Price (“MAP”) Policy. This MAP Policy is designed to: (1) ensure that Resellers can market Blast Motion products effectively and in a manner consistent with the Blast Motion brand as a premium offering; and (2) to avoid damage to the Blast Motion brand through channel conflict.

This Policy has been unilaterally adopted and will be unilaterally enforced by Blast Motion. Blast Motion is not seeking, nor will it accept, any assurance of compliance with this Policy. Nothing in this Policy or in another agreement or contract (regardless of the context) with Blast Motion shall constitute an agreement between Blast Motion and the Reseller that the Reseller will comply with this Policy.

Policy Coverage

The MAP Policy applies to all Resellers of Blast Motion products located in the United States of America. Resellers remain free to establish their own resale prices. However, Blast Motion reserves the right to unilaterally impose sanctions as described in this Policy against Resellers who advertise applicable Blast Motion products at retail prices below what has been specified by Blast Motion. A current list of MAP pricing foractive products can be found at Blast Motion.com (“MAP Prices”). From time to time, at its sole discretion, Blast Motion may change the list of products and the applicable MAP Prices. Blast Motion products not specifically identified on the applicable product list or within this Policy are not subject to the Policy. MAP Prices are advertised retail prices by a Reseller directed to an end-user. MAP pricing does not include advertised wholesale pricing by a distributor to another Reseller, which pricing is not covered by this Policy.

Policy Compliance

To comply with this Policy, a Reseller’s advertisements for Blast Motion products should not display a price below the applicable MAP Price. For purposes of this Policy, advertisements include all types of advertising, including, without limitation, print ads in newspapers, trade journals, periodicals, and other print media, radio ads, TV ads, catalogs, direct mailers directed at end-users in the United States of America; and (2) all communications of prices accessible by the internet that are viewable by end-users in the United States of America, including references to Blast Motion products on search engines, in banners, e-mail blasts, broadcast e-mails or “click for” e-mails, on shopping engines and on or through a Reseller’s own website (“Internet Advertising”). Internet Advertising, however, does not include web screens such as the “shopping cart” or other secure server screens shown to the end-user after the end- user has made a decision to purchase a Blast Motion product. Advertisements that do not display a price are not in violation of this Policy. For example, a “Call for Price” advertisement would not be a violation of the Policy. MAP applies only to the minimum advertised prices and does not apply to the price at which the products are actually sold or to advertised prices higher than the listed MAP Prices. Resellers may set and negotiate actual resale prices without limitation and is not considered a violation of the Policy.

Policy Violations

In the event a Reseller chooses not to follow this MAP Policy, Blast Motion reserves the right to unilaterally and, in its sole discretion, impose sanctions for non-compliance. Such sanctions may include, without limitation, the loss of any form of cooperative advertising rebate, allowance or other form of benefit that Blast Motion may extend to Resellers from time-to-time.

Violations of the MAP Policy shall be determined by Blast Motion in its sole discretion. Blast Motion will not accept communication from non-compliant Resellers of their willingness to bring their prices into compliance with the Policy. Decisions regarding violations of the Policy are irrevocable and will not be changed in any way based on a Resellers’ commitment regarding future practices.

Policy Modifications

Blast Motion reserves the right to modify, suspend, or discontinue this MAP Policy in whole or in part at any time. Blast Motion may also from time to time designate promotional periods during which the terms of the Policy change or designate periods of time during which the Policy is not applicable.

Contact Information

All questions or comments regarding this MAP Policy are to be directed to Blast Motion’s Policy administrator at following email address: info@BlastMotion.com. The Policy administrator shall be solely responsible for determining whether a violation of the Policy has occurred, communications to Resellers of a decision regarding the Policy, and receiving any communication regarding sanctions imposed under this Policy.

(Required) By checking the box, you acknowledge that you have read and understand the Blast Motion (“MAP”) Policy

Blast Motion Authorized Reseller Agreement

This Customer Agreement (“Agreement”) is made effective as of (“Effective Date”), by and between Blast Motion, Inc. (“Blast Motion”), a California corporation having a principal place of business at 5803 Newton Dr. Suite D, Carlsbad, CA 92008, and__________________, having a principal place of business at
(“Customer”). In consideration of the mutual promises and covenants set forth in this Agreement, the parties agree as follows:

Orders for Products

1.1 Products. Subject to the terms and conditions of this Agreement, Blast Motion will sell to Customer, and Customer will purchase from Blast Motion, the products listed in Exhibit A (“Products”). Blast Motion may revise Exhibit A to add or delete Products upon 30 days prior written notice to Customer. A revision will apply to all orders accepted after the effective date of the revision. Blast Motion may, in its sole discretion, discontinue or limit its production of any Product; allocate, terminate, or limit deliveries of any Product in time of shortage; or modify the design of, specifications for, or construction of any Product.

1.2 Term and Conditions of Sale. The terms and conditions of this Agreement will control all sales of Products by Blast Motion to Customer, and any conflicting or additional terms contained in any Customer purchase orders or other documents are hereby specifically objected to and will be of no effect.

1.3 Order Submission by Customer

(a) Purchase Orders. Customer will order Products by submitting to Blast Motion written purchase orders that set forth the details for the ordered Products (i.e., type and quantity ordered, delivery destination, requested shipment date) (“Purchase Orders”). Purchase Orders must be placed in accordance with the lead-time restrictions in Section 1.3(b). Any terms of a Purchase Order that conflict with, or in any way purport to amend, any of the terms of this Agreement are hereby specifically objected to and will be of no effect.

(b) Minimum Order Lead-time. Customer will provide Blast Motion with a minimum order lead-time (i.e., the time between receipt of a Purchase Order by Blast Motion and the requested Product shipment date) for the shipment of Products of no less than 30 business days. For those Purchase Orders for which Customer fails to provide the minimum order lead-time, Blast Motion will not be obligated to accept the Purchase Order, but if Blast Motion does accept the Purchase Order, Blast Motion will use reasonable efforts to fill the Purchase Order by the shipmentdate requested by Customer.

1.4 Review of Purchase Orders by Blast Motion. No later than five business days after receipt of a Purchase Order, Blast Motion will advise Customer in a written or electronic notice whether it has accepted the Purchase Order (“Order Acknowledgement”) or it is requesting a modification to the Purchase Order (“Change Order”). If Blast Motion fails to deliver an Order Acknowledgement or Change Order within the five business day period, the Purchase Order will be deemed accepted. Blast Motion reserves the right to accept Purchase Orders in its reasonable discretion or to cancel any Purchase Order previously accepted if Blast Motion determines that Customer is in default.

1.5 Review of Change Orders by Customer. If Blast Motion submits a Change Order to Customer, the original Purchase Order will be void and of no further effect and Customer will have five business days from receipt of the Change Order to accept in writing the terms of the Change Order. If Customer does not respond in writing to the Change Order within the five business day period, the Change Order will be deemed rejected by Customer and Blast Motion will have no obligations under the Change Order.

1.6 Accepted Orders. For the purposes of this Agreement, an “Accepted Order” is an order described in (a) a Purchase Order that is automatically deemed accepted by Blast Motion in accordance with Section 1.4; (b) an Order Acknowledgement delivered by Blast Motion in accordance with Section 1.4; or (c) a Change Order accepted by Customer in accordance with Section 1.5.

Accepted Orders for Products

2.1 Fulfillment of Product Orders. Blast Motion will use reasonable efforts to promptly fill all Accepted Orders for Products in accordance with the terms specified in the Accepted Orders, subject to any rescheduling requested by Customer in accordance with Section 2.2. Blast Motion will notify Customer promptly in writing if the delivery of any Products will be delayed until after the shipment date specified in the Accepted Order.

2.2 Rescheduling of Product Orders. At least 30 business days before the Product shipment date specified in an Accepted Order, Customer may reschedule the shipment of the Product by providing written notice to Blast Motion that must include the following information: the number of Products for which delivery is to be rescheduled, and the rescheduled shipment date, which must be more than 30, but less than 90, business days after the date on which the rescheduling notice is received by Blast Motion. Blast Motion will acknowledge all requests for rescheduled delivery within five business days after Blast Motion’s receipt of such request.

2.3 Product Shipment Terms. All Products delivered pursuant to this Agreement will be suitably packed for shipment in Blast Motion’s standard shipping cartons, marked for shipment to Customer’s address above or to an address specified in an Order Acknowledgement, and delivered to Customer or its carrier agent F.O.B. Blast Motion’s facility or the facility of its contract manufacturer, at which time risk of loss and title will pass to Customer. Unless otherwise instructed in writing by Customer, Blast Motion will select the carrier. Customer will pay all freight, insurance, and other shipping expenses, as well as any special packing expense. Customer will also bear all applicable taxes, duties, and similar charges that may be assessed against the Products after delivery to the carrier at Blast Motion’s facilities. Blast Motion will retain all right, title, and interest, including any intellectual property rights, in and to any software provided as part of a Product and the software will be licensed to Customer pursuant to the software

license agreement provided with the Product. As used in this Agreement, the term F.O.B. will be construed in accordance with the International Chamber of Commerce “Incoterms” (published 1990).

2.4 Return Rights. Blast Motion will accept returns of any Products if the Products are unopened and in resalable condition and returned to Supplier within 60 days of receipt by Customer. Refunds on returned items will be issued in the same payment form as tendered at the time of purchase. Once the returned product is received and inspected the account will be credited. Customer is responsible for all costs to return product to Blast Motion.

2.5 Approved Distribution Territory. See schedule A. 3. Price and Payment

3.1 Price. The purchase price for Products (“Purchase Price”) will be as set forth in a written price quotation signed by an authorized Blast Motion sales executive (“Price Quotation”). Accepted Orders are subject to any additional restrictions that may be set forth in the applicable Price Quotation.

3.2 Payment

(a) Invoices. Blast Motion will submit an invoice to Customer no sooner than the Product shipment date specified in an Accepted Order. The invoice will state the Purchase Price for all Products plus any freight, taxes, or other applicable costs paid by Blast Motion to be reimbursed by Customer.

(b) Payment Date. Customer will pay all invoices via credit card prior to the fulfillment of the order, unless the customer has been granted Net Payment Terms. If Net Terms have been granted, Customer will pay all invoices no later than 30 days after the date of invoice. This section is applicable to resellers with previously agreed upon credit terms with Blast Motion.

3.3 Currency and Late Payment. Unless otherwise stated in the applicable Price Quotation, all Purchases Prices are set forth in, and payments must be made in, U.S. dollars. Late payments will accrue interest at the lesser of 1.5% per month and the highest rate allowed by applicable law.

3.4 Taxes

(a) General. Unless otherwise stated in the applicable Price Quotation, Purchase Prices do not include, and are net of, any foreign or domestic governmental taxes or charges of any kind that may be applicable to the sale, licensing, or distribution of the Products, including without limitation excise, sales, use, or value-added taxes; customs or other import duties; or other taxes, tariffs or duties. Customer will be responsible for, and will pay in a timely manner, all such taxes and charges levied against Blast Motion, excluding taxes on the income of Blast Motion. When Blast Motion has the legal obligation to pay or collect such taxes, the appropriate amount will be invoiced to Customer, excluding taxes on the income of Blast Motion, and paid by Customer within 30 days of the date of invoice unless Customer provides Blast Motion with a valid tax exemption certificate authorized by the appropriate taxing authority.

(b) Withholding Taxes. All payments by Customer will be made free and clear of, and without reduction for, any withholding taxes. Any such taxes that are otherwise imposed on payments to Blast Motion will be the sole responsibility of Customer. Customer will provide Blast Motion with official receipts issued by the appropriate taxing authority or such other evidence as is reasonably requested by Blast Motion to establish that such taxes have been paid.

Term and Termination

4.1 Term.ThisAgreementwillbeineffectforaninitialone-yeartermcommencingontheEffectiveDate(“InitialTerm”).Thereafter, subject to Customer’s timely payment of all invoices, this Agreement will continue to be in effect for additional one-year terms (“Renewal Terms”), unless either party provides the other party with written notice of non-renewal at least 30 days before the end of the Initial Term or any Renewal Term. Upon renewal of this Agreement, the Purchase Prices stated in Exhibit A will be revised to reflect Blast Motion’s prices for the Products in effect at the time of renewal.

4.2 TerminationwithoutCause.EitherpartymayterminatethisAgreementwithoutcauseupon60dayspriorwrittennoticetothe other party.

4.3 TerminationforCause.IfeitherpartyfailstoperformanyofitsmaterialobligationsunderthisAgreement,theotherpartymay terminate this Agreement by giving 30 days prior written notice, provided that the matters set forth in such notice are not cured to the other party’s reasonable satisfaction within the 30-dayperiod.

4.4 Effect of Termination or Expiration. In case of a termination or expiration of this Agreement, the provisions of this Agreement will continue to apply to all Accepted Orders that accepted before the effective date of such termination or expiration. Termination or expiration of this Agreement will not release either party from making payments due to the other party under the terms of this Agreement.

Limited Warranty and Disclaimer

5.1 LimitedWarranty.SupplierwarrantsthattheProductswillbenewandunused,willmateriallyperforminaccordancewiththe applicable specifications, and will be free from material defects in materials, workmanship, and design until 12 months after delivery to Customer (“Warranty Period”). The foregoing warranty will not be available if the Product defect is caused by: (a) any unauthorized use or distribution of the Product by any Authorized Reseller or any end user, (b) any use of the Product in combination with other products, equipment, software, or data not supplied by Supplier, (c) any use or distribution of the Product with other than the most current release of the applicable software made available to Authorized Reseller, or (d) any modification of the Product by any person other than Supplier.

5.2 WARRANTYDISCLAIMER.EXCEPTFORTHEEXPRESSWARRANTIESprovidedtocustomerunderseparateagreements in accordance with section 5.1, BLAST MOTION MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. BLAST MOTION EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND TITLE. BLAST MOTION DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE PRODUCTS OR AGAINST INFRINGEMENT. BLAST MOTION DOES NOT WARRANT THAT THE PRODUCTS ARE ERROR-FREE OR THAT OPERATION OF THE PRODUCTS WILL BE SECURE OR UNINTERRUPTED. CUSTOMER AND WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF BLAST MOTION TO ANY DISTRIBUTOR, END USER, OR OTHER THIRDPARTY.

5.3 WARRANTY RETURN AND RELACEMENT PROCEDURE. During the Warranty Period, Blast Motion will, at its own expense, replace defective Products and deliver new Products to Customer. Unless Blast Motion reasonably demonstrates a returned item is free from defect, Blast Motion will pay the costs of all shipping and insurance of the replacement Products, once defective items are received by Blast Motion. All replacement Products will be warranted for the longer of 90 days or the remaining Warranty Period for the Products being replaced. Customer will promptly return defective Products to Blast Motion (FOB Shipping Point), as the case may be, or dispose of the defective Products in accordance with Blast Motion’s instructions. All replaced parts become the property of Blast Motion. The foregoing states Blast Motion’s entire liability and Customer’s sole and exclusive remedy for defective Products supplied to Blast Motion.

Limitations of Liability

6.1 Disclaimer of Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, BLAST MOTION WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF BLAST MOTION IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.

6.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL BLAST MOTION’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO BLAST MOTION UNDER THIS AGREEMENT (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN ANACTION).

6.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABLITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY BLAST MOTION TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONSIS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THE WARRANTIES IN THIS AGREEMENT HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

General Provisions

7.1 U.S.GovernmentRestrictedRights.IfasoftwarecomponentoftheProductsislicensedforusebytheUnitedStatesorfor use in the performance of a United States government prime contract or subcontract, Customer agrees that the software is delivered as:
(i) “commercial computer software” as defined in DFARS 252.227-7013, Rights in Technical Data – Noncommercial Items (Oct 1988), DFARS 252.227-7014 Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation (Jun 1995), and DFARS 252.211-7015 Technical Data Commercial Items (May 1991); (ii) as a “commercial item” as defined in FAR 2.101; or (iii) as “restricted computer software” as defined in FAR 52.227-19, Commercial Computer Software—Restricted Rights (Jun 1987); whichever is applicable. The use, duplication, and disclosure of the software by the Department of Defense shall be subject to the terms and conditions set forth in the accompanying license agreement as provided in DFARS 227.7202 (Oct 1998). All other use, duplication and disclosure of the software and related documentation by the United States shall be subject to the terms and conditions set forth in the accompanying license agreement and the restrictions contained in subsection (c) of FAR 52.227-19, Commercial Computer Software— Restricted Rights (Jun 1987), or FAR 52.227-14, Rights in Data — General Alternative III (Jun 1987). Contractor/licensor is Blast Motion, Inc., 5803 Newton Drive, Suite D, Carlsbad, CA 92008.

7.2 ExportRestrictions.Customerwillnotdirectlyorindirectlyimport,export,orre-exporttheProductsoutsidetheUnitedStates without obtaining all permits and licenses as may be required by, and conforming with, all applicable laws and regulations of the governments of the United States and the foreign territory. Customer represents and warrants that Customer is not located in, under the control of, or a national or resident of any country on the United States Commerce Department’s Table of Denial Orders.

7.3 Assignment. Customer may not transfer or assign this Agreement, in whole or in part, without the written consent of Blast Motion, which consent will not be unreasonably withheld. Any attempt by Customer to transfer or assign this Agreement without consent will be null and void. Blast Motion may transfer or assign this Agreement upon notice, but without Customer’s consent, to an affiliate or a successor of all or substantially all of its business pertaining to this Agreement, whether by merger, consolidation, transfer or sale of all or substantially all of its business, assets, or equity.

7.4 GoverningLawandJurisdiction.ThisAgreementwillbegovernedbyandconstruedinaccordancewiththelawsofthestate of California without regard or giving effect to its principles of conflicts of laws or to the United Nations Convention on Contracts for the International Sale of Goods. Blast Motion and Customer submit to and hereby irrevocably waive any objection to the exclusive personal jurisdiction of, and that venue is proper in, any federal or state court in San Diego County, California.

7.5 Notices.Anynotice,request,demand,orothercommunicationrequiredorpermittedinthisAgreementwillbeinwriting,will reference this Agreement, and will be effective: (a) when delivered personally; (b) when sent by facsimile, with written confirmation of receipt by the sending facsimile machine; (c) four business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) two business days after deposit with an express courier, with written confirmation of receipt. All notices will be sent to the address set forth below or other address for a party as specified in writing by that party.

7.6 Severability.IfforanyreasonacourtofcompetentjurisdictionfindsanyprovisionofthisAgreementinvalidorunenforceable, that provision of the Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.

7.7 Waiver.NofailureofeitherpartytoexerciseorenforceanyofitsrightsunderthisAgreementwillactasawaiveroftheserights.

7.8 Relationship between the Parties. Blast Motion is an independent contractor under this Agreement. Nothing in this Agreement creates a partnership, joint, venture, or agency relationship between theparties.

7.9 Contractual Statute of Limitations. No claim, demand, or cause of action that arose out of an event or events that occurred more than one year before filing of the claim, demands or cause of action with a court of competent jurisdiction may be asserted by either party against the other.

7.10Force Majeure. Blast Motion is not responsible for delays or failures to perform its responsibilities under this Agreement due to causes beyond its reasonable control. If the performance of Blast Motion is interfered with for reasons beyond its reasonable control, Blast Motion, upon prompt written notice to Customer, will be excused from performance to the extent of the interference. Blast Motion will take all reasonable steps to remove the causes of non-performance and resume performance as soon as the causes are removed.

7.11Entire Agreement. This Agreement and Exhibit A is the complete and exclusive agreement between the parties with respect to the subject matter of this Agreement, superseding and replacing any and all prior or contemporaneous agreements, communications, and understandings (both written and oral) regarding this subject matter. This Agreement will also supersede the conflicting terms of any purchase order or any other Customer document. Blast Motion hereby expressly rejects terms and conditions preprinted on any Customer document. Any terms in any other order, release, contract, or other communication that are additional to, different from, or inconsistent with the provisions of this Agreement will be deemed to be void and of no effect. This Agreement may only be modified, or any rights under it waived, by a written document executed by both parties.

7.12No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to confer, nor will anything contained in this Agreement confer on, any person other than the parties and the respective successors or permitted assigns of the parties, any rights, remedies, obligations or liabilities

Terms & Conditions

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