Vicor Corporation Terms and Conditions of Sale

1. Scope 
These Terms and Conditions of Sale (“Terms”) shall be the sole terms and conditions governing the sale of products and services (“Goods”) by Vicor Corporation or any of its subsidiaries, divisions, affiliates, or related entities based in the United States (“Vicor”) to the commercial party listed on the order form or other documentation (“Purchase Order”) provided to Vicor by that party ("Buyer"), except to the extent these Terms conflict with those of an existing, separate contract signed by Vicor and Buyer may take precedence over these Terms.[1]  Vicor’s express acceptance of a Purchase Order under these Terms is evidenced by its delivery of a Sales Order Acknowledgement (“SOA”), and such acceptance of a Purchase Order is expressly conditioned on Buyer's assent to these Terms, as described in Section 2.  Only upon delivery by Vicor of a SOA to Buyer shall these Terms and the associated Purchase Order together become a binding, bilateral contract between Vicor and Buyer, with enforceable rights and performance obligations (the “Sales Agreement”).  A Sales Agreement will not exist, and Vicor will not be obligated to fulfill a Purchase Order, unless Vicor affirmatively acknowledges the respective responsibilities of Vicor and Buyer through delivery of a SOA to Buyer.  No party has been authorized by Vicor to make any statement or representation as to the sale of Goods inconsistent with these Terms, and no such statements, if made, will be binding upon Vicor or be grounds for any claim.

The Sales Agreement shall not fail as a contract due to the presence of conflicting terms and conditions of purchase of the Buyer set forth in Buyer’s Purchase Order, as any and all such terms and conditions, including but not limited to provisions of purchase accompanying a Purchase Order, are hereby rejected and shall be of no effect.  In the event of any conflict between these Terms and terms and conditions of purchase of the Buyer, these Terms shall prevail, except in those circumstances when Vicor has expressly consented to the specific application of the conflicting condition(s) of Buyer to the Sales Agreement, as specifically indicated in the SOA.  If, subsequent to the issuance of a SOA, Vicor agrees to modify these Terms, Vicor’s express consent will be valid and binding upon Vicor only when an amendment to the SOA is executed, as set forth in Section 3 below. 

The products that are the subject of a sale by Vicor to Buyer are referred to as the "Products," and the services sold by Vicor to Buyer are referred to as the "Services."  Vicor’s SOA will explicitly set forth the identifying part numbers, quantities, unit prices, and scheduled shipment dates for Products associated with the Sales Agreement.  Similarly, a SOA will explicitly set forth a Statement of Work (“SOW”) describing the Services, if any, to be rendered, including progress milestone(s) and/or deliverable(s) associated with the Services (and the schedule(s) therefor, including the scheduling of payment of consideration and reimbursement of expenses) and any variance from these Terms necessitated by the nature and scope of the Services.  To the extent any provisions set forth in the SOW conflict with these Terms, such provisions of the SOW shall have precedence solely in their application to Services.
   
These Terms, together with Vicor’s Terms of Website Use and Vicor’s Privacy Policy, apply to Buyer’s access to and use of Vicor’s website and the purchase of Goods using the online ordering functions of that website.  By ordering Goods from the Vicor website, Buyer acknowledges having read, understood, and agreeing to be bound by these Terms and the two documents referenced in this paragraph.

2. Buyer's Express Acceptance of these Terms
Buyer's assent to these Terms shall be conclusively presumed from: (A) Buyer’s receipt of Vicor's SOA without written objection received by Vicor within 10 days after such receipt; (B) Buyer’s instruction to Vicor to begin manufacturing (and/or shipping) the Products and/or delivering the Services after receipt of Vicor's SOA; (C) Buyer’s acceptance of or payment for all or any part of the Products or Services set forth in the SOA; or (D) taking any other action evidencing Buyer's acceptance of the benefits of the Sales Agreement between Vicor and Buyer.  Based on such presumption, Vicor may commence performance in reliance upon Buyer's assent to these Terms.

3. Entire Agreement; Modification
These Terms, together with Buyer’s Purchase Order (inclusive of all specifications, drawings, and data submitted to Vicor with such Purchase Order) and Vicor’s SOA (inclusive of a SOW for Services, if any), shall constitute the complete and final Sales Agreement between Vicor and Buyer, superseding completely any prior oral or written communications.  In the event a modification of the Sales Agreement is required due to subsequent changes in circumstance, the specific changes to these Terms or the provisions related to quantities, specifications, shipping arrangements, or other related variables shall be memorialized in the form of a letter agreement representing an amendment to a referenced SOA and attached thereto; provided, however, such letter agreement shall be effective and binding upon Vicor only if it is signed by an authorized Vicor representative.

4. Prices; Taxes and Related Costs
All prices for Goods are invoiced and payable in U.S. Dollars.  Prices set forth in the SOA for specifically scheduled Product unit quantities will be effective for 12 months after the date of that SOA.  Notwithstanding the preceding sentence, in the event the SOA sets forth a unit price reflecting a discount based on the Buyer’s commitment to purchase a defined quantity of units during the 12 months after the date of the SOA, and the Buyer does not meet this commitment, Vicor will invoice Buyer, at the conclusion of the 12 month period, an additional amount representing the difference between (A) the value of the quantity actually purchased by the Buyer at the unit price set forth in the SOA and (B) the value of the quantity actually purchased by the Buyer at a unit price reflecting the volume pricing schedule in effect at the date of the SOA.  Such invoiced amount will be in addition to any charges associated with cancellation of the Sales Agreement, as provided for in Section 9.

Prices do not include applicable taxes (federal, state, municipal, or other government sales, use, excise, or similar transactional taxes) or import costs (tariffs, duties, customs charges, or similar fees), the payment of which shall be the sole responsibility of Buyer, regardless of whether Buyer is invoiced by Vicor for such taxes or import costs.  Vicor’s invoice will set forth the amounts of any such taxes, import costs, or related charges subject to collection from Buyer upon sale or delivery of the Goods as reimbursement to Vicor for payment of such charges on behalf of Buyer.  Buyer, at its own expense, shall be responsible for delivery of a certificate of exemption (or similar document) required to exempt the sale or importation of Goods from any taxes, import costs, or other charges. 

5. Shipment; Carriage
Vicor will ship Products “Ex Works” Vicor’s facility (EXW; as defined and governed by ICC Incoterms 2000), freight prepaid or freight collect to destination. Buyer must pay all transportation costs associated with delivery of Products.  Unless specific instructions to the contrary are supplied by Buyer, Vicor will select the carriage and carrier to ship Products to the Buyer's address set forth in the Purchase Order and confirmed in the SOA.  Vicor will not assume any liability in connection with the shipment of Products, nor will Vicor designate any carrier as its agent. Buyer shall indemnify and hold harmless Vicor from and against any claims, damages, or liabilities suffered by Vicor resulting from any acts or omissions of carrier.

6. Title to Products; Risk of Loss
Title to the Products and all risk of loss to those Products pass to Buyer at the point of EXW shipment from Vicor's facility, whether freight prepaid or freight collect to destination, regardless of whether Buyer elects to choose a carrier and schedule shipments. Any special tools, dies, or fixtures developed by Vicor to manufacture the Products or deliver the Services are Vicor’s property.  

Buyer must obtain adequate insurance to cover the Products from the time title has passed from Vicor to Buyer.Risk of loss for damage or delay in transit shall be born solely by Buyer. Buyer shall file and pursue any claims directly with the carrier related to loss, damage, or delay in transit, and Buyer shall not assert such claims against Vicor or deduct from amounts owed to Vicor.

7. Delivery
Delivery dates set forth in the SOA are approximate; Vicor will use reasonable efforts to meet a delivery date or dates set forth in the SOA, but Buyer acknowledges (A) Vicor is not bound by any such date(s) set forth in the SOA, and (B) Vicor’s failure to meet such date(s) will not constitute a breach of the Sales Agreement.  In no event will Vicor be liable for any claims for labor or for any special, indirect, incidental, or consequential damages including, but not limited to, costs of shipment, demurrage charges, lost sales, operational downtime, lost profits (whether direct or indirect), or any other damages resulting from delivery delay.  Acceptance by Buyer of the Product(s) upon delivery of a specific shipment will constitute a waiver by Buyer of any claim for damages associated with Vicor’s failure to meet the delivery date set forth in the SOA for such shipment. 

Vicor reserves the right to deliver to Buyer in installments, based on current and forecast Product availability.  Vicor also reserves the right, in the event of production constraints, to allocate product deliveries among its customers.  Vicor, as soon as practicable after its determination of the need to deliver in installments or to allocate product deliveries among customers, will notify Buyer and amend the SOA, pursuant to Section 3, to reflect a revised shipment schedule.  
Vicor may postpone a delivery date in the event Buyer has not met its payment obligations under these Terms.
In the event Buyer refuses to accept delivery of any Products, such Products will be held by Vicor awaiting Buyer’s instructions for 20 days, after which Vicor may deem the shipment as abandoned and dispose of the Products as it sees fit, without crediting Buyer’s balance due to Vicor.

8. Force Majeure
Vicor will not be liable for any loss or damage of Buyer resulting from any delay in delivery or failure to give notice of delay when such delay is due to any cause or event beyond Vicor’s control, including, without limitation, acts of nature, extreme weather, fires, pandemics, wars, civil disturbance, acts of terrorism, sabotage, unavailability of supplies or sources of energy, strikes or labor difficulties, delays in transportation, delays in delivery or defaults by Vicor’s vendors, governmental actions and prohibitions (including, without limitation, the imposition of boycotts, economic sanctions, embargos, export controls, and other restrictive trade measures), or acts or omissions of the Buyer. In the event of delay due to any such cause, the delivery date(s) shall be extended for a period of time equal to the duration of such delay, and the Buyer shall not be entitled to refuse delivery or otherwise be relieved of any obligations hereunder as a result of the delay.  

9. Delays and Cancellations by Buyer
Buyer is not entitled to delay or cancel all or any part of a shipment of Products under a Sales Agreement, unless Buyer has received Vicor's prior, express written consent in the form of an amendment to the SOA in question pursuant to Section 3.  Such consent may be withheld or conditioned in Vicor's sole discretion.  Buyer must provide written notice to Vicor of its request of such delay or cancellation prior to the following dates: for standard module and configurable Products, 60 days before the scheduled shipment date shown on the SOA; for custom Products, 90 days before the scheduled shipment date shown on the SOA; and, for all other Products, 120 days before the scheduled shipment date shown on the SOA.  If the SOA is not amended to reflect Vicor’s consent to rescheduled Product shipment(s) or the cancellation of the Sales Order, Vicor will ship all completed Products as originally scheduled.  In the event Buyer requests delivery date(s) set forth in the SOA be delayed by 90 days or more, Vicor, in its sole discretion, may deem such request a cancellation.  In the event of a breach of the Sales Agreement by Buyer, Vicor may cancel the Sales Agreement upon 10 days prior written notice to Buyer of such cancellation.

In the event of any cancellation of a Sales Agreement, Vicor will invoice Buyer and Buyer will pay Vicor for the documented costs incurred (or to be incurred) by Vicor, including: (A) the price for any Products manufactured under the Sales Agreement but not yet shipped; (B) the cost of any work-in-process associated with the Sales Agreement; (C) the cost of non-fungible materials and components ordered specifically to meet the manufacturing and delivery schedules of the Sales Agreement; and (D) other costs arising as a consequence of the cancellation, including, but not limited to, supplier restocking charges and related logistics costs.

10. Payment; Invoicing
Terms are cash in full settlement of invoiced amount upon transfer of title of Goods, except: (A) in those circumstances when payment is received by Vicor concurrent with Vicor’s issuance of a SOA (e.g., when Buyer places a partial or full deposit with Vicor to be applied toward the purchase, or when Buyer purchases Products utilizing the online ordering functions of Vicor’s website); (B) when Vicor has extended trade credit to Buyer, in which case terms of payment are net 30 days from the date of invoice; or (C) the SOW associated with Services sets forth a specific schedule for amounts and timing of invoices and payments.  Vicor may require Buyer’s payment to be secured by an irrevocable letter of credit or a bank guarantee acceptable to Vicor; in such circumstances, all bank charges and collection costs shall be the responsibility of Buyer.

Vicor will invoice Buyer for amounts due upon shipment of Products; if such shipments are authorized in installments, each such shipment shall be considered a distinct transaction under the Sales Agreement, with each invoice paid by Buyer when due, without regard to other scheduled shipments.  Vicor will invoice Buyer for Services provided at the time agreed upon in the SOA, consistent with the definition of the Services, the scheduling thereof, and the criteria for acceptance of the Services by Buyer, as set forth in the SOW.

In the event of Buyer’s default in the payment of invoiced amounts due or, if Buyer becomes the subject of a bankruptcy or other insolvency proceeding, Vicor, at its option, without prejudice to any other of Vicor's lawful remedies, may cancel the Sales Agreement or delay deliveries thereunder.  Buyer agrees to pay all costs, including, but not limited to, reasonable attorney and accounting fees and other expenses of collection, resulting from any default by Buyer under the Sales Agreement.  Invoices remaining unpaid after their due date will be subject to a daily financing charge representing 12.0% per annum (or the maximum rate allowed by applicable law). 
Amounts owed by the Buyer with respect to which there is no dispute shall be paid without set-off for any amounts that the Buyer may claim are owed by Vicor.

11. Trade Credit
Vicor reserves the right to deny, limit, or cancel any amount of trade credit it may extend to Buyer.  Vicor further reserves the right to require, as a condition of its performance, a deposit from Buyer of up to 100% of the purchase price set forth in the SOA, either at the time of the SOA issuance or at any time prior to Vicor’s performance under the Sales Agreement. 

If for any reason, Vicor, in its sole discretion, determines the ultimate collectability of amounts due from Buyer under the Sales Agreement to be in doubt, Vicor, without notice to Buyer, may delay delivery of the Goods and may require partial or full payment in advance in the form of a deposit, with respect to the undelivered balance of Goods subject to the Sales Agreement.

12. Standard Specifications
Unless otherwise agreed as set forth in the SOA, as amended, Vicor will manufacture Products in accord with its own material and quality requirements, and performance specifications for the Products will be as set forth in Vicor’s published datasheets for such Products (the “Standard Specifications”).  Use of Buyer’s part number in any documents evidencing the Sales Agreement or on the Products is for convenience only and does not constitute any representation by Vicor with respect to performance, specifications, or fitness of any part for any purpose.  If Buyer requests modification of a Standard Specification in its Purchase Order, Vicor’s consent to such modification will be evidenced by its acknowledgement and acceptance of such modification in the SOA, as amended.  If any performance specification for a Product set forth in the SOA, as amended, differs materially from such specification requested by Buyer in its Purchase Order, Vicor may, in its sole discretion, require, as a condition of Vicor’s performance, that Buyer provide its acknowledgment and acceptance of the performance specification set forth by Vicor, with such acknowledgment and acceptance representing an amendment of the SOA under the provisions of Section 3.  A modification to a Product’s Standard Specifications acknowledged and accepted by Vicor, as evidenced in the SOA, as amended, will be considered to be included in the Standard Specifications to which Vicor’s Express Limited Warranty will be applicable.  

13. Packaging
Vicor will endeavor to comply with Buyer’s packaging specifications, if any, but Vicor reserves the right to substitute any other methods of packaging reasonably comparable to the specifications identified by Buyer in its Purchase Order.  Vicor also reserves the right to modify packaging in a manner necessary to comply with customs, import, or other regulatory requirements in the jurisdiction(s) where the goods will be shipped.

14. Express Limited Product Warranty
Vicor warrants each Product sold under these Terms to be free of defects in materials or workmanship and to conform to its respective Standard Specifications, as defined in the SOA, as amended (the “Express Limited Product Warranty”). The Express Limited Product Warranty commences upon the EXW shipment of Products to Buyer and is extended for the one, two, or three year periods applicable to the specific Product; such “Warranty Periods” are set forth on the Warranty Period webpage of the Vicor U.S. website.   The Express Limited Product Warranty is extended to Buyer and is not transferable; provided, however, if Buyer is a Vicor-authorized reseller or distributor and has reported to Vicor the identity of its customer and the Product in question, the Express Limited Product Warranty will be extended to the Buyer’s customer for that Product.  VICOR'S LIABILITY UNDER THIS EXPRESS LIMITED PRODUCT WARRANTY SHALL BE LIMITED TO EITHER: (A) THE OBLIGATION TO REPAIR OR REPLACE, AT VICOR'S SOLE DISCRETION, ONLY THOSE PRODUCTS PROVEN TO HAVE FAILED TO MEET IN MATERIAL RESPECT THE PERFORMANCE SPECIFICATIONS SET FORTH IN THE ASSOCIATED SOA, AS AMENDED, OR (B) REPAYMENT OF OR CREDIT AGAINST THE PURCHASE PRICE OF THOSE PRODUCTS.  VICOR AND BUYER EXPRESSLY AGREE TO THE LIMITATION OF VICOR’S LIABILITY UNDER THE EXPRESS LIMITED PRODUCT WARRANTY TO THE VALUE REPRESENTED BY THE PURCHASE PRICE PAID BY BUYER. THIS LIABILITY LIMITATION AND DISCLAIMER WILL APPLY EVEN IF THE EXCLUSIVE REMEDY DESCRIBED IN THIS SECTION FAILS ITS ESSENTIAL PURPOSE.

15. Conditions of Applicability of Express Limited Product Warranty
The Express Limited Product Warranty is of no effect if Products are not stored, handled, or serviced appropriately after the EXW shipment of the Products, or the non-conformity of the Products: (A) resulted from damages occurring after the EXW shipment of the Products, whether by misuse, accident, or improper application or maintenance; (B) was not reported in writing to, and acknowledged by, Vicor within two years of the EXW shipment of the Products; or (C) should have been discovered by Buyer in Buyer’s inspection upon delivery and was not reported in writing to, and acknowledged by, Vicor within 10 days of such inspection.  If Buyer (or the purchaser of Product subject to the extension of the Express Limited Product Warranty as provided for in Section 14) alters or modifies Product without Vicor’s prior express written consent, in the form of a letter agreement representing an amendment of the SOA under the provisions of Section 3, and any claims are asserted against Vicor by reason of such alteration or modification, Buyer (or the purchaser of Product subject to the extension of the Express Limited Product Warranty as provided for in Section 14) shall defend, indemnify, and hold Vicor harmless against any and all damages, liabilities, expenses, and costs in connection therewith or resulting therefrom.

16. Non-Conforming Products; Return Authorization
If Buyer (the definition of which includes, for purposes of this Section 16, the purchaser of Product subject to the extension of the Express Limited Product Warranty as provided for in Section 14) believes the Product is in breach of the Express Limited Product Warranty, and the Express Limited Product Warranty is not rendered ineffective by Section 15, Buyer will notify Vicor promptly in writing, and Vicor will acknowledge such notification as soon as practicable.  To assert a claim under the Express Limited Product Warranty, Buyer must (A) return to Vicor, within 10 days of Vicor’s request, all Product believed to be non-conforming or, if acceptable to Vicor, in its sole discretion, a statistically relevant percentage thereof, and (B) provide to Vicor reasonable documentation supporting the claim as might be requested by Vicor, including, but not limited to, results of diagnostic tests, evaluations, and investigations performed by Buyer.  Product subject to a claim under the Express Limited Product Warranty, if not returned to Vicor by Buyer, may not be repaired or discarded without Vicor's prior written consent, in the form of a letter agreement signed by an authorized Vicor representative.  If Vicor confirms Product is in breach of the Express Limited Product Warranty, then Vicor, at its sole discretion and at no cost to Buyer, will repair or replace the non-conforming Product subject to the claim.  Except as provided in this Section 16, SUCH REPAIR OR REPLACEMENT IS THE ONLY REMEDY AVAILABLE FOR ANY BREACH OF THE EXPRESS LIMITED PRODUCT WARRANTY.  Any Product repaired or replaced will be warranted by Vicor for 30 days from shipment or the remainder of the Product’s original Warranty Period, whichever is longer.  For repair or replacement under the Express Limited Product Warranty, Buyer must contact Vicor to obtain a return material authorization (“RMA”) number and shipping instructions.  If Buyer returns Product to Vicor without an RMA number, such Product will be held by Vicor for 20 days, after which Vicor may deem the Product abandoned and appropriate for disposal, without crediting Buyer’s account.  For Product returned with a valid RMA number, absent any contrary written instructions from the Buyer, such Product will be held by Vicor for 20 days after completion of Vicor’s testing and analysis, after which such Product will be deemed abandoned and appropriate for disposal, without crediting Buyer’s account.  Vicor reserves the right to verify any claim of Product non-conformity to Standard Specifications at the module or sub-assembly level.  If Buyer so requests for a non-conforming Product during that Product’s Warranty Period, Vicor, at its sole discretion, may perform a destructive physical analysis of such Product, provided Buyer compensates Vicor for the costs of such analysis, subject to a minimum amount of $250 per unit.  

17. Express Limited Service Warranty
Vicor warrants it will maintain the necessary personnel, capabilities, and resources to provide the Services described in a SOW accompanying a SOA and such Services will be performed in accordance with standards of care and diligence generally practiced in the delivery of services of a similar nature (the “Express Limited Services Warranty”).  Buyer agrees (A) the quality of Services shall be judged solely as to whether Vicor performed the Services consistent with the SOW and with the aforementioned standards of care and diligence and (B) Buyer’s sole remedy in the event of its claim of a breach of the Express Limited Services Warranty is the agreement of Vicor, in its own discretion, to again perform, at no cost to Buyer, that portion (or those portions) of the Services associated with such claim.  Notwithstanding the prior sentence or any provision herein to the contrary, Vicor expressly disclaims the applicability of all other express or implied warranties with respect to the performance of Services. VICOR AND BUYER EXPRESSLY AGREE TO THE LIMITATION OF VICOR’S LIABILITY UNDER THE EXPRESS LIMITED SEVICE WARRANTY TO THE VALUE REPRESENTED BY THE PURCHASE PRICE PAID BY BUYER FOR SUCH SERVICES. THIS LIABILITY LIMITATION AND DISCLAIMER WILL APPLY EVEN IF THE EXCLUSIVE REMEDY DESCRIBED IN THIS SECTION FAILS ITS ESSENTIAL PURPOSE.

18. No Warranty for Technical Support
Vicor assumes no obligation or liability for any technical support provided to Buyer, including, but not limited to, advice with respect to the use of Product, all such advice being given and accepted at Buyer's sole risk, without consideration therefor.  Vicor will not be liable for any damages of any kind arising out of or relating to the use of or the inability to use the technical support provided.

19. Warranty Disclaimer and Liability Limitation
EXCEPT AS EXPRESSLY SET FORTH HEREIN OR EXPRESSLY STATED IN THE SOA, AS AMENDED, VICOR DISCLAIMS ALL OTHER WARRANTIES OR REPRESENTATIONS OF ANY KIND (WHETHER ARISING BY IMPLICATION OR BY OPERATION OF LAW) WITH RESPECT TO THE PRODUCTS AND SERVICES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR REPRESENTATIONS AS TO MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, OR ANY OTHER MATTER. THIS DISCLAIMER SURVIVES THE TERMINATION OF THE SALES AGREEMENT OR THE CANCELLATION OF ANY SHIPMENTS THEREUNDER.  IN NO EVENT IS VICOR RESPONSIBLE TO BUYER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, ALL DIRECT AND INDIRECT LOSSES (INCLUDING LOST PROFITS AND ANY OTHER FORM OF ECONOMIC LOSS) ASSOCIATED WITH THE SALE OF GOODS, REGARDLESS OF WHETHER THOSE DAMAGES WERE FORESEEABLE.  THE LIABILITY OF VICOR ARISING OUT OF OR RELATING TO SALE OF GOODS SHALL BE LIMITED TO THE ACTUAL AMOUNTS PAID BY BUYER TO VICOR FOR THE PRODUCTS OR SERVICES, RESPECTIVELY, GIVING RISE TO SUCH DAMAGES. 

20. Product Use
Buyer (the definition of which includes, for purposes of this Section 20, the purchaser of Product subject to the extension of the Express Limited Product Warranty as provided for in Section 14) agrees Vicor’s performance under a Sales Agreement is contingent upon Buyer’s communication to Vicor of the application in which the Products will be used.  Unless otherwise agreed to by Vicor in the SOA, as amended, Buyer agrees Products are not intended for and will not be used in applications in which application failure could lead to loss of life or catastrophic damage to property and the environment.  Product use in applications associated with human life support and nuclear power generation are expressly prohibited by Vicor, and Buyer will indemnify and hold Vicor harmless from any losses, costs, or damages resulting from Buyer’s use of Products in such prohibited applications.

21. Product Returns
Any Buyer request for the return of a Product to Vicor, for any reason, must be made in writing, and such a return will not be accepted unless it has been approved by an authorized Vicor representative, in writing, at the time of the issuance by Vicor of a RMA number.  Vicor, in its sole discretion, may accept or reject any such return request by Buyer and reserves the right to impose charges on Buyer in connection with such return request. 

22. Facility Inspection
Facility inspection by Buyer, Buyer’s agent, or Buyer's customer must be stipulated in Buyer’s Purchase Order, and Vicor, in its sole discretion, may require reimbursement from Buyer for reasonable costs incurred to accommodate such inspection.  Buyer shall have no right of access to any Vicor facility, except as specifically authorized in advance by Vicor in the SOA.  Vicor makes no representations regarding its ability to facilitate access to any facilities operated by third party providers to Vicor of contract manufacturing services. Buyer will indemnify and hold Vicor harmless from any and all suits, damages, and expenses of Buyer, Buyer’s agent, or Buyer’s customer, resulting from death, personal injury, or loss of or damage to property occurring during, or in connection with, any facility inspection.

23. Government Contracts
If Buyer is purchasing Goods for fulfillment of a United States government contract or a sub-contract of any tier under a United States government contract, Buyer shall promptly notify Vicor of that fact and of any contractual terms applicable to Vicor under the “flow-down” provisions of the United States Federal Acquisition Regulations (“FAR”) or Defense Acquisition Regulations System (“DFARS”).  Vicor will accept only those FAR or DFARS procurement provisions explicitly required under the regulations themselves, which will become binding and effective on Vicor only upon inclusion in the associated SOA, as amended.  Vicor retains proprietary rights to Product designs and all technical data provided under such government contract.  Neither the United States government nor any higher-tier contractor under a United States government contract receives any rights to Product design and/or technical data beyond the rights provided to all commercial customers under these Terms, except that Vicor grants to the United States government the minimum additional rights required under the narrowest applicable provisions of FAR or DFARS.  Except as specifically agreed in writing, Vicor will not provide certified cost and pricing data and, accordingly, does not accept any Cost Accounting Standards, defective pricing, or audit requirements.

24. Export Control
Buyer acknowledges and agrees the Goods being sold hereunder are subject to export control and economic sanctions laws, including, but not limited to, the U.S. Export Administration Regulations (“EAR”), the U.S. State Department's International Traffic in Arms Regulations (“ITAR”), the various economic sanctions programs administered by the U.S. Department of Treasury's Office of Foreign Assets Control (“OFAC”) and U.S. State Department, various laws of similar effect in the United Kingdom, European Union (“EU”) and/or any of its member states, and other jurisdictions where Buyer operates.  Buyer will not, without prior government authorization, export, re-export, or transfer any Goods, either directly or indirectly, to any country subject to any applicable export controls, economic sanctions, or to any resident or citizen of any embargoed or sanctioned countries wherever located, or to any other person, organization, or entity on any of the various restricted parties lists maintained by the U.S. Departments of Commerce, State, or Treasury, or agencies with similar jurisdiction in the EU and United Kingdom.  In addition, any Products sold hereunder may not be exported, re-exported, or transferred to any end-user engaged in activities, or for any end-use, directly or indirectly related to the design, development, production, use, or stockpiling of weapons of mass destruction (e.g., atomic, biological, or chemical weapons, and the missile technology to deliver such weapons).

25. Intellectual Property
Nothing in the Sales Agreement is to be construed as a grant or assignment of any license or other right to Buyer of any of Vicor's intellectual property rights, whether patent, trademark, trade secret, copyright or otherwise. All improvements and developments related to the Products or the efforts of Vicor and Buyer will be owned exclusively by Vicor, and Buyer shall reasonably cooperate with Vicor in confirming that result.

26. Confidentiality
Prices and related commercial information set forth in a Sales Agreement are hereby deemed proprietary to Vicor, and Buyer agrees to hold such proprietary information in confidence, to use such proprietary information solely in association with a Sales Agreement, and to not disclose such proprietary information to third parties without the express written consent in letter agreement form, signed by an authorized Vicor representative.  Buyer shall be liable for any loss to Vicor or commercial gain by others from unauthorized use of such proprietary information occasioned by Buyer's failure to hold such proprietary information in confidence.

27. Indemnification by Buyer
Buyer agrees to indemnify, defend, and hold harmless Vicor, its Board of Directors, corporate officers, employees, authorized distributors and representatives, and any successors or assignees from and against any and all damages, losses, expenses, costs (including without limitation reasonable attorney's and accountant's fees), claims, suits, actions, judgments, or other liability asserted against or incurred by Vicor arising out of: (A) Buyer's breach of its obligations under the Sales Agreement; (B) Buyer's negligence or misconduct with regard to the use, ownership, maintenance, transfer, transportation, or disposal of Product; (C) Buyer's misuse or misapplication of the Goods or damage to the Goods caused by Buyer or its employees, agents, or customers; (D) any infringements or alleged infringement of the intellectual property rights of others arising from Buyer’s use of Product outside of Standard Specifications (including application of Buyer’s trademarks and brand names to Product); and (E) Buyer’s violation or alleged violation of any Federal, state, county, or local laws or statutes, including without limitation, those governing product safety, labeling, packaging, and labor practices.

28. Governing Law
Any and all matters in dispute between Vicor and Buyer, whether arising from or relating to a Sales Agreement or arising from alleged extra-contractual facts including, but not limited to, fraud, misrepresentation, negligence, or any other alleged tort or violation of contract, shall be governed by, construed, and enforced in accordance with the Uniform Commercial Code as enacted in the statutes of the Commonwealth of Massachusetts, without resort to the Commonwealth's conflict of laws provisions and regardless of the legal theory upon which such matter is asserted, and any applicable United States federal law.  The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms or to a Sales Agreement. 

29. Dispute Resolution; Vicor's Selection of Forum
Any dispute with Buyer in connection with a Sales Agreement may, at Vicor’s sole discretion, be resolved through binding arbitration in the Commonwealth of Massachusetts, pursuant to the Commercial Arbitration Rules of the American Arbitration Association (“Arbitration”). The seat of the arbitration shall be Boston, Massachusetts, and the arbitration shall be conducted in the English language, with all submissions made in English or accompanied by an English translation.  Witnesses may provide testimony in a language other than English if simultaneous English translation is provided.  The results of Arbitration will be final and non-appealable. Buyer’s only forum for dispute resolution is Arbitration.  Vicor, in its sole discretion, may elect to have a judicial forum for dispute resolution.  As such, Buyer irrevocably submits and agrees to the jurisdiction of the state courts of the Commonwealth of Massachusetts and the Federal courts within the Commonwealth of Massachusetts, in any action, suit, or proceeding related to, or in connection with, a Sales Agreement.  To the extent permitted by applicable law, Buyer waives and agrees not to assert as a defense in any such action, suit, or proceeding any claim: (A) that Buyer is not personally subject to the jurisdiction of the state courts of the Commonwealth of Massachusetts and/or the Federal courts within the Commonwealth of Massachusetts; (B) that the venue of the action, suit, or proceeding is improper; (C) that the action, suit, or proceeding is brought in an inconvenient forum; or (D) that the subject matter of the Sales Agreement may not be enforced in or by the State and or Federal courts of the Commonwealth of Massachusetts.  Without prejudice to any other mode of service, Buyer consents to service of process relating to any such proceedings by mailing in registered or certified form a copy of the process documents to the Buyer at the address set forth in in the Purchase Order and confirmed in the SOA.

30. Compliance with Laws
Buyer shall comply, and shall cause its employees to comply, with all applicable local, national, regional, and international laws, ordinances, regulations, codes, standards, directives, and international conventions and agreements to the extent that any of the foregoing have the force of law by being directly enforceable by a governmental authority, a court, or other proper tribunal (collectively “Laws”), including, but not limited to: (A) Laws associated with customs, imports, and Free Trade Agreements applicable in the jurisdiction(s) where Buyer operates or otherwise conducts business; (B) each of the aforementioned export control and economic sanctions laws identified in Section 24, as well as any other laws of similar effect in any other jurisdictions where the Buyer operates or otherwise conducts business; (C) Laws associated with the prevention of corruption and bribery, including but not limited to the U.S. Foreign Corrupt Practices Act, the U.S. Anti-Kickback Act, the United Kingdom Bribery Act, the Organization for Economic Cooperation and Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, and the Inter-American Convention Against Corruption, and other laws of similar effect in the jurisdictions where the Buyer operates or otherwise conducts business; (C) Laws of countries in which Buyer conducts business as they relate to the Articles of the Universal Declaration of Human Rights, employee safety and wellbeing, and corporate social responsibility; and (D) Laws associated with environmental protection and waste reduction, including, but not limited to, the EU Waste Electrical and Electronic Equipment Directive.

31. Notice
No notice under a Sales Agreement is sufficient to affect any rights, remedies, or obligations of either Vicor or Buyer unless the notice is in writing and (as elected by the party giving such notice) is (A) personally delivered, (B) transmitted by facsimile (with a receipt acknowledgment), (C) transmitted by electronic mail (with a receipt acknowledgment), (D) delivered by a recognized courier service, or (E) mailed by post in registered or certified form, to the party to which such notice is being given, at the respective addresses of Vicor and Buyer set forth in the Purchase Order and confirmed in the SOA.  Either party may change its address by notice to the other party.  All notices are deemed to have been duly given on the date of receipt if delivered personally, on the date of transmission if delivered by facsimile or electronic mail, one day after the date the notice is delivered to the courier service, or five days after postmark if delivered by postal service.

32. Nonwaiver
The failure of Vicor to enforce these Terms and the SOA, as amended, shall not be construed as a waiver of Vicor's right to enforce each and every provision set forth.  Vicor reserves the right to enforce, at any time, these Terms and the SOA, as amended, and no provision set forth shall be deemed waived unless such waiver is evidenced by an amendment to the SOA, pursuant to Section 3.  Vicor's rights and remedies set forth in a Sales Agreement are in addition to all legal and equitable rights and remedies available to Vicor.

33. Assignment or Delegation; No Third Party Rights
Buyer shall not assign or delegate any or all of its rights or obligations under a Sales Agreement without the prior written consent of Vicor, in letter agreement form, and any attempt to do so will be ineffective.  These Terms and the SOA, as amended, are for the sole and exclusive benefit of Vicor and the Buyer and their permitted successors and assigns.  Nothing expressed or referred to in a Sales Agreement will be construed to give any other person any legal or equitable right, remedy, or claim under or with respect that Sales Agreement.

34. Headings
The section headings contained in these Terms are used for convenience only and shall not affect in any way the meaning or interpretation of this document.

35. Severability
If any provision or part of a provision of these Terms or the SOA, as amended, is declared invalid, illegal, or unenforceable under applicable law, the affected provision will be modified to conform to applicable law or considered omitted. The validity, legality, and enforceability of all other remaining provisions or parts of provisions will remain in full force and effect.

36. Survival
The terms of the Sales Agreement that by their nature are reasonably intended by the parties to survive its expiration or earlier termination, survive the expiration or termination of the Sales Agreement.

[1] Sales of Goods in Japan by Vicor Japan Company Ltd. are governed by separate terms and conditions of sale incorporating provisions specific to Japanese law.

FM-22004 Rev. E
1/1/2018