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<br /> 1• • •1Zobile. • • MPCS CA,LLC Page 2 of 2
<br /> MetroPCS California,LLC
<br /> SE 38th St.
<br /> Bellevue,WA 98006
<br /> Purchase order 4551052917
<br /> The following terms and conditions("Terms")are incorporated into and made a part of the attached Purchase Order("PO"):
<br /> 1.For purposes of this PO,"Seller'means any company delivering goods and/or providing services to T-Mobile USA,Inc.("T-Mobile"),and"Buyer"means T-Mobile or the specific T-Mobile affiliate entity identified in the PO issued to
<br /> Seller.
<br /> 2.The Buyer is the sole and exclusive purchaser under the PO.Unless T-Mobile is the"Buyer'specified on the PO,under no circumstances will T-Mobile or any T-Mobile affiliate have or incur any liability of any type or character
<br /> under this PO(or,if applicable,any Existing Agreement or SAA(as such terms are defined below)),including,without limitation,direct,indirect,actual,contingent,consequential,incidental or vicarious liability,or will any entity
<br /> other than Buyer have any duty or obligation to perform any actions or pay any sums that the Buyer designated in this PO is or may be obligated to perform or pay under this PO.In no event will T-Mobile act as,or he deemed to be,a
<br /> guarantor,surety or joint obligor of the Buyer designated in this PO.
<br /> 3.Sellers actions,including,without limitation,written acknowledgment of a PO(including any electronic method of communication,including e-mail and text messaging),commencement of work,or the shipment of any goods
<br /> and/or the provision of any services pursuant to a PO,whichever occurs first,will constitute acceptance by Seller of the PO,including these Terms.If any of these Terms are not acceptable,Seller must advise Buyer in writing within
<br /> 5 days of receipt of this PO and will withhold shipment of any goods,commencement of any work or the provision of any services,until the matter is resolved between Buyer and the Seller.Seller may not vary or substitute any
<br /> specifications,instructions,or partial shipments,without the prior written approval from Buyer,and such approval may be withheld in Buyer's sole discretion.The quantity specified in the PO represents the exact quantity for which
<br /> payment is authorized.No additional payment for"overruns"or change orders will he authorized unless specifically indicated in writing on this PO or on a subsequent amendment thereto issued by Buyer.
<br /> 4.If this PO is identified as a"blanket order",it is issued to cover goods or services listed on this PO as Buyer may elect to purchase from time to time from Seller in the future.If Buyer elects to purchase from Seller based on such
<br /> blanket order,Buyer will request in writing that Seller make specific deliveries(or shipments)only in the quantities and at times specified by the Buyer.Except for such goods or services requested in writing by Buyer under a
<br /> blanket order,under no circumstances will Buyer be under any obligation to Seller for the payment for goods or services on a blanket PO.
<br /> 5.Any modification of this PO,under any circumstances,without Buyer's prior written consent is prohibited,and may void the PO in Buyer's sole discretion.
<br /> 6.Time is of the essence for this PO.The PO number,item number and supplier code must appear on all Seller shipping documents,invoices,quality certifications,if any,and packing sheets.Buyer will pay invoices within 60 days
<br /> of the receipt of an undisputed invoice,less any applicable cash discount or Early Payment Discount(as defined below).
<br /> 7.As used in this PO,"Early Payment Discount"means an early payment discount for Buyer equal to:(a)2%of the invoiced amount for any payments made within the first 15 days after invoice receipt;and(b)thereafter,an amount
<br /> calculated on a prorated basis over the remaining 45 days according to the following formula:((.02)-(.000444 X(total days from invoice receipt-15))).By way of example,if an invoice is paid 43 days from the date of invoice receipt,
<br /> the Early Payment Discount would be((.02)-(.000444 X(43.15))_(.02)-(.012432)_(.007568%9.Notwithstanding anything to the contrary in this PO,all invoices paid by Buyer will be subject to an Early Payment Discount against the
<br /> fees owed under the applicable invoice.
<br /> 8.If shipments or deliveries of goods or provision of services are not received or complete,as the case may be,on or before the delivery date set forth in this PO,Buyer,in their sole discretion,may cancel this PO upon notice to
<br /> Seller without liability or penalty to Buyer.Buyer may reject any delivery if the full quantity specified an this PO is not delivered by the specified times.
<br /> 9.Buyer may delay delivery of goods or provision of services upon notice to Seller.In the event of delayed delivery of goods or provision of services at the request of Buyer,Seller will hold the goods or services pending further
<br /> instruction by Buyer.Buyer will be liable only for additional and reasonable costs incurred by Seller for such holding of goods or services,which result directly from Buyer's instructions and that are preapproved in writing by Buyer.
<br /> 10.All goods and services purchased by Buyer are subject to inspection and rejection,notwithstanding any prior payment(s)from Buyer.Buyer will have the right to reject any and all goods that are defective or nonconforming,as
<br /> determined in Buyer's sole discretion.Rejected goods and goods shipped in excess of quantities specified in the PO may be returned at Seller's expense for unpacking,examining,re-packing,and transportation.No goods retumed
<br /> as defective will be replaced without the prior written permission of Buyer.If Buyer receives goods with a defect or nonconformity that is not apparent on initial examination,Buyer reserves the right to require replacement or
<br /> payment for damages upon discovery of such defector nonconformity.
<br /> 11.Payment for the goods delivered or services furnished under this PO will not constitute acceptance of such goods or services.Goods or services will only be deemed accepted when they have actually been counted,inspected
<br /> and tested(as appropriate)by Buyer and found to be in conformance with this PO.However,failure to count,inspector test by Buyer will not relieve the Seller of any duties or obligations hereunder.Any moneys due to Seller may be
<br /> offset by any moneys due to Buyer,T-Mobile or any other T-Mobile-affiliate entity,wltether under this PO or pursuant to any other contractual arrangement between Buyer,T-Mobile or another T-Mobile-affiliate entity and Seller.
<br /> 12.Seller warrants that the prices quoted In this PO are equal to or less than the lowest prices offered to any other customers of Seller for similar goods and services.In the event of any price reduction between receipt of this PO by
<br /> Seller and delivery of the goods or provision of services,Buyer will be entitled to such reduction and Seller will reflect such reduction in the applicable invoice.If no price is stated,then Seller will charge Buyer the lower of either the
<br /> price last quoted or billed by Seller to Buyer,or the lowest price offered by Seller on the date of delivery to Buyer.No additional charges of any kind,including,without limitation,charges for packaging,cartage or other extras,will be
<br /> paid by Buyer unless Seller obtains specific prior written approval from Buyer.
<br /> 13.Except for taxes based on Seller's gross receipts or net income,Buyer will reimburse Seller for all applicable taxes that arise in any jurisdiction as a result of the transaction contemplated by this PO,including,without limitation,
<br /> all sales,use,value added,consumption,gross receipts(other than in lieu of net income tax),excise(t allowed to be passed on to the purchaser under applicable law),stamp or transfer taxes,duties and fees(collectively,
<br /> "Transaction Taxes"),however designated.Transaction Taxes must be indicated as separate line items on invoices presented to Buyer,either at the time an invoice is originally submitted for goods or services,or subsequently by a
<br /> supplemental invoice.If Transaction Taxes are properly invoiced on a supplemental invoice,Buyer will pay such supplemental invoice only if it is received by Buyer within 180 days of the original invoice.Buyer specifically disclaims,
<br /> and Seller expressly releases Buyer from,any liability for payment of Transaction Taxes not invoiced within the 180 day period.
<br /> 14.Buyer may modify this PO at any time upon notice to Seller.Sellerscontinued performance under this PO will be deemed acceptance of Buyer's modifications to this PO,If such modifications result in additional costs,Seller will
<br /> provide Buyer an itemized list of such additional costs within 10 days after Seller's receipt of Buyers notice and Buyer,subject to its review and acceptance,will pay the same under the agreed upon payment terms.
<br /> 15.Any cash discount period provided by Seller will begin from the later of:(a)the date of T-Mobile's receipt of the goods or services which are the subject of this PO;or(b)the date of Sellers Invoice.
<br /> 16.If this PO includes work or services to be performed on Buyer's,T-Mobile's or any T-Mobile-affiliates'premises,Seller will observe the highest safety standards,comply with all applicable laws and regulations including without
<br /> limitation,the Occupational Safety and Health Act and Buyer's policies and regulations.Seller will maintain adequate commercial general liability and worker's compensation insurance and furnish evidence of the same at Buyers
<br /> request.Seller isan independent contractor.No employee-employer relationship is created by this PO.
<br /> 17.Buyer may terminate this PO at any time,for any reason,or for no reason upon notice to Seller.In such event,Seller will immediately stop all work,services or deliveries of goods,and observe any instructions from Buyer as to
<br /> such work,services or deliveries of goods in process.Seller will be paid an equitable adjustment for work or services already performed or goods already delivered.Buyer may also terminate this PO for cause due to default by
<br /> Seller.In such event,Buyer will not be liable to Seller for any costs or charges.Seller will be liable for and will hold Buyer harmless from,any damages occasioned by Seller's default under this PO.If it should be determined that
<br /> Buyer has improperly terminated this PO,such termination will then be deemed to be for Buyer's convenience and Buyer will have no liability arising from such termination.
<br /> 18.The deliverables delivered by Seller under this PO are"works made for hire"(as such term is defined under U.S.copyright law)with Buyer having ownership and being the author of any deliverables.Seller hereby irrevocably and
<br /> unconditionally assigns to Buyer,is successors,and assigns,all right,(including without limitation sublicensing rights),title,and interest in and to all such deliverables.Buyer will be deemed to own,without any restrictions or
<br /> limitations whatsoever,the sole and exclusive rights to prepare derivative works based on the deliverables.
<br /> 19.Seller represents,warrants and guarantees that all materials and goods delivered hereunder will be free from defect of design,material or workmanship,fit and safe for their intended use,will be of the quality and specifications
<br /> designated in this PO,and if not so specified,of the highest quality available in the industry,and will comply with all applicable federal,state and local laws and regulations.Executive Order 11246,29 C.F.R.Part 471,Appendix A to
<br /> Subpart A,and 41 C.F.R.Parts 60-1.4,60-4.3,60-300.5 and 60-741.5,will apply,if applicable.Seller warrants and covenants that it will not give and has not given any commissions,payments,gifts,kickbacks or other things of
<br /> significant value to any employee or agent of Buyer,T-Mobile or any other T-Mobile-affiliate,or anyone else,in connection with this PO.Seller further warrants that it will neither directly nor indirectly pay,offer,give,nor promise
<br /> anything of value in connection with this PO to a U.S.or non-U.S.public official or any other person in violation of the Foreign Corrupt Practices Act,the U.K.Bribery Act or any other applicable law relating to anti-corruption.These
<br /> representations and warranties on the part of Seller will apply to all aspects of the Seller's obligations under this PO including,without limitation,manufacture,shipment,marking,branding,labeling,invoicing,advertising and
<br /> testing.Seller will extend all warranties it receives from its vendors to Buyer.The warranties herein are in addition to all warranties contained under applicable law.
<br /> 20.Seller represents,warrants and guarantees that all goods to be delivered or services to be performed hereunder do not and will not infringe any patent,trademark,copyright or other intellectual property rights,or unfair
<br /> competition rights.
<br /> 21.All deliveries to Buyer will be"DDP Destination".To this end,title to and risk of loss of goods to he delivered will,unless otherwise provided herein,pass from the Seller to Buyer upon delivery to the location specified in the PO.
<br /> 22.Seller will deliver the goods,which are the subject of this PO,free and clear of all liens,claims and encumbrances.
<br /> 23.Seller will comply with the T-Mobile USA Supplier Code of Conduct("Supplier Code of Conduct"),which may be reviewed via www,T-Mobile.com.The terms of the Supplier Code of Conduct are incorporated herein by reference
<br /> and may be revised by T-Mobile from time to time.Seller will promptly report to Buyer any discovered or suspected fraud,illegal activity or other violation of the Supplier Code of Conduct.
<br /> 24.Seller will defend,indemnify and hold Buyer,T-Mobile and any other T-Mobile-affiliate,and each of their respective officers,employees,agents,directors,successors and assigns(collectively,the'T-Mobile Indemnified Parties")
<br /> harmless from all losses,liability,damages,and expenses(including attomey's fees)which may he claimed against or suffered by the T-Mobile Indemnified Parties arising out of any breach of Seller's obligations or warranties
<br /> contained in the PO,including these Terms,or resulting in any way from goods and/or services related to this PO,unless due to the sole gross negligence of the T-Mobile Indemnified Parties.Seller will at the request of any of the
<br /> T-Mobile Indemnified Parties,defend any such claim,action,or lawsuit at Seller's sole expense and T-Mobile will have the right to monitor such litigation by its own counsel,at Seller's sole expense.This indemnification will he in
<br /> addition to the warranty obligations of Seller.
<br /> 25.In no event will Buyer,T-Mobile or any other T-Mobile affiliate entity be liable for anticipated profits or incidental or consequential damages incurred by Seller.Buyer,T-Mobile or any other T-Mobile affiliate entity will not be liable
<br /> for penalties of any description.Buyer,T-Mobile or any other T-Mobile affiliate entity liability on any claim of any kind for any loss or damage arising out of or in connection with or resulting from this PO,or from the performance or
<br /> breach thereof will to no case exceed the price allocable to the goods and/or services or any unit hereof which gives rise to the claim.Any action resulting from any breach on the part of Buyer,T-Mobile or any other T-Mobile affiliate
<br /> entity as to the goods delivered andlor services provided under this PO commenced after one year from the date the cause of action accrued will be forever barred.
<br /> 26.Seller will not make any news release,announcement,denial or confirmation of all or any part of the subject matter of this PO,any phase of any program hereunder,or in any manner advertise,publish or disclose the fact that
<br /> Buyer has issued such PO,without the prior written consent of Buyer,which consent may be withheld in the sole discretion of Buyer.
<br /> 27.In the event of any proceedings,voluntary or involuntary,in bankruptcy or insolvency,by or against the Seller,or for the appointment of a receiver or trustee or an assignee for the benefit of the creditors,Buyer will be entitled to
<br /> cancel this PO without any penalty or further liability hereunder whatsoever,upon notice to Seller.
<br /> 28.Seller acknowledges that Seller may have access to certain confidential,secretor proprietary information and/or materials relating to or awned by Buyer,T-Mobile or other T-Mobile affiliate entities,including without limitation,
<br /> trade secrets,ideas,know-how,techniques,designs,specifications,technical,financial or business information regarding individual customers,business,organization and operations(collectively,"Information").As between Buyer
<br /> and Seller,such Information will be the sole and exclusive property of Buyer,and Seller agrees That during the tern of this PO and at all times thereafter,Seller will not disclose such Information to any governmental agency,person,
<br /> entity,firm or corporation without the express prior written consent of Buyer.Seller agrees to return to Buyer promptly upon termination of this PO all correspondence,letters,documents or other tangible things or copies thereof
<br /> (whether stored in hard copy,in electromagnetic media,or in any other form)which mention or contain said Information.
<br /> 29.Any knowledge or information which Seller will have disclosed or may hereafter disclose to Buyer,and which in any way relates to the goods and/or services covered by this PO will not,unless otherwise specifically agreed to in
<br /> writing by Buyer,be deemed to be confidential or proprietary information,and will be acquired by Buyer,free from any restrictions(other than a claim for patent infringement),as part of the consideration of this PO.
<br /> 30.Seller will not assign or subcontract all or any part of this PO,or the goods and/or services which are the subject matter of this PO,or any benefits arising from this PO,without the prior written consent of Buyer,which consent
<br /> may be withheld in Buyer's sole discretion.
<br /> 31.All notices,requests,demands and other communications hereunder will be in writing and will be deemed given if personally delivered or mailed,certified mail,return receipt requested,or sent by commercial ovemight courier to
<br /> the parties'respective addresses specified on the PO.
<br /> 32.This PO,including these Terms,constitutes the entire agreement and understanding of the parties,and supersedes all offers,negotiations and other agreements regarding the subject matter of this PO;provided,however,if this
<br /> PO is issued under or in connection with an existing written agreement between Buyer and Seller that is not a separate Supplier Account Agreement)"SAA")between the parties(an"Existing Agreement"),then:fa)the Existing
<br /> Agreement will remain in full force and effect and not be superseded by this PO,but if there is any conflict or inconsistency between the terms and conditions of the Existing Agreement and the Terms of this PO,the terms and
<br /> conditions of the Existing Agreement will govem and control,and(b)any SAA between the parties will remain in full force and effect and not be superseded by this PO,but if there is any conflict or inconsistency between the terms
<br /> and conditions of the SAA and the Terms of this PO,the Terms of this PO will govern and centre!.There are no representations or understandings of any kind not set forth herein.Except as otherwise expressly provided herein,this
<br /> PO can be modified only by written agreement between the parties.
<br /> 33.This PO and the Terms herein,will be govemed by and constituted and enforced in accordance with the laws of the State of Washington and the parties consent to the exclusive jurisdiction of the state and federal courts sitting
<br /> in Seattle,King County,Washington.Failure to enforce any provision herein will not constitute a waiver of any future breach or waiver of any other term and condition herein.
<br /> 34.If any term or condition herein is found to be void or invalid,such finding will not affect the remaining terms and conditions herein,which will continue in full force and effect.If any provisions are deemed not enforceable,they
<br /> will be deemed modified to the extent necessary to make them enforceable.
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