SUPPLY AGREEMENT

This Supply Agreement (this “Agreement”), dated as of ____________________, 2023 (the “Effective Date”), is entered into by and between American Network Solutions, LLC, a limited liability company organized and existing under the laws of Delaware with offices located at 150 Motor Parkway, Suite 109, Hauppauge, NY 11788 (“ANS”) and __________________________ a corporation organized and existing under the laws of ________________________with its principal place of business located at ________________________________________ (“Supplier”).  ANS and Supplier are hereinafter sometimes referred to in this Agreement as a “Party” and collectively as the “Parties”. 

1.              SCOPE OF THIS AGREEMENT

1.1                 Product Term Sheets.  ANS and Supplier may enter into written and signed Product Term Sheets (the “Product Term Sheets”) to establish additional or different terms and conditions applicable to one or more Products, or to establish project-specific terms and conditions required in connection with a particular project (e.g., carrier customer-specific requirements).  If the terms and conditions of a Product Term Sheet add to or conflict with this Agreement, the applicable Product Term Sheet will control as to the inconsistency only.

2.              PRODUCTS

2.1                 Supplier designs, develops, and manufactures wireless communications devices and related accessories for use by end user subscribers of wireless telecommunications services (each, a “Product” or collectively, the “Products”).  Subject to the terms and conditions of this Agreement, Supplier shall supply to ANS, and ANS shall purchase from Supplier, the Products from time to time.  The terms of this Agreement and the Product Term Sheets will govern the Product purchases and will be automatically incorporated into and become part of all purchase orders issued by ANS. 

2.2                 Supplier acknowledges and agrees that each Product purchased by ANS must meet any additional terms, conditions, criteria, support obligations, timelines and other requirements set forth by an ANS carrier network operator customer (the “Carrier Requirements” and each ANS carrier network operator customer, a “Carrier Customer”).  The Carrier Requirements for each ANS Carrier Customer will be identified in the Product Term Sheet or other suitable documents. 

2.3                 Purchases of the Product are subject to engineering approval by ANS and ANS Carrier Customers as well as the Products proper performance, timely delivery, quality, competitive pricing and conformance to the required specifications on the Carrier Customer’s network. 

2.4                 Products purchased by ANS may be subject to modification, upon notice to Supplier, in order to implement technology upgrades required by a Carrier Customer. 

2.5                 From time to time, the Parties may modify the terms of this Agreement in order to meet the requirements of a Carrier Customer. 

3.              TERM, TERMINATION AND EXCLUSIVITY

3.1                 Term and Renewal.  This Agreement will commence on the Effective Date and continue for two (2) years thereafter (the “Initial Term”).  After the Initial Term, this Agreement will renew automatically for additional successive one (1) year period(s) (each, a “Renewal Term”) unless either Party provides the other with written notice of its intention not to renew not less than ninety (90) days prior to the end of the Initial Term or Renewal Term.  The Initial Term and Renewal Term are referred to as the “Term”. 

3.2                 Termination.  Either Party may terminate this Agreement if the other Party breaches a material obligation under this Agreement, and that breach continues uncured for a period of thirty (30) days after receiving written notice of the breach.  Either Party may immediately terminate this Agreement with written notice if the other Party makes a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets, or avails itself of or becomes subject to any proceeding under any applicable bankruptcy or insolvency law.  In the event of termination of the Agreement by either Party, both Parties agree to act in good faith to complete their respective obligations as required in the Agreement.

3.3                 Exclusivity.  Supplier hereby appoints ANS for the Term of this Agreement as its exclusive distributor to sell, distribute and/or market the Products in the United States of America and Puerto Rico (collectively, the “Territory”).  The Parties will work together in good faith to solicit the Products to the Carrier Customers.  Notwithstanding the above, in the event that any Carrier Customers requires a different business scheme, such as working directly with Supplier, the Parties agree to follow the Carrier Customer’s request.  However, Supplier shall not solicit or influence any Carrier Customers to purchase the Products directly from Supplier by disparaging ANS or by offering reduced pricing for the Products. 

4.              FORECASTS, PURCHASE ORDERS AND CHANGE ORDERS

4.1                 Forecasts.  ANS will provide Supplier a good faith estimated non-binding written rolling forecast on a monthly basis (each, a “Forecast”) based on Carrier Customer requirements of the quantity of each Product model that ANS expects to purchase. 

4.2                 Purchase Orders.  From time to time during the Term of this Agreement, ANS will order Products from Supplier by submitting to Supplier, a Purchase Order stating the items and quantities of Product which ANS desires to purchase and the requested shipping and delivery date for such Products (the “Purchase Order”).  A Purchase Order may be mailed, sent by email, facsimile transmission, electronic data interchange (EDI) or other mutually agreed upon format.  For each Purchase Order received by Supplier, within two (2) business days of receipt Supplier will in good faith either accept or reject the Purchase Order upon notice to ANS.  All Purchase Orders will be governed by the terms and conditions of this Agreement and the Product Term Sheets.  

4.3                 Change Orders.  Supplier shall use commercially reasonable efforts to accommodate any changes to previously accepted Purchase Orders.  ANS shall have the right to reschedule any Purchase Order without liability, up to ninety (90) days beyond the original scheduled delivery date. 

5.              PRICING, PRICE PROTECTION AND PAYMENT TERMS

5.1                 Pricing.  The prices to be paid by ANS for the Products purchased hereunder (the “Prices”) shall be negotiated and agreed to in writing by the Parties in good faith.  Pricing discussion may include, but not be limited to, taxes, duties, tariffs and shipping terms.  Any such agreements reached by the Parties shall be confirmed in writing by emails, in the applicable Product Term Sheet or Purchase Order, or other suitable documents, and upon such confirmation shall form a part of this Agreement. 

5.2                 Price Protection.  If the Price for a Product decreases, Supplier shall grant ANS a credit equal to the difference between Supplier’s current cost of the Product and the new reduced cost for the Product, for each unit of Product (“Price Protection”) that is; (i) covered by any pending Purchase Order; (ii) in transit to ANS or its Carrier Customers; and (iii) in ANS’s inventory.  Additionally, in the event that ANS and Supplier agree to a Price decrease of a Product, Supplier shall provide ANS Price Protection.  ANS will submit to Supplier written verification of the number of units of Product subject to Price Protection within thirty (30) days of the effective date of the price decrease.  Supplier shall issue Price Protection credits within thirty (30) days of receipt of the quantities of Product submitted by ANS which are covered by Price Protection.

5.3                 Payment Terms.  ANS’s Purchase Order payment terms shall be thirty (30) days from the invoice date which shall be defined as the date on which the Product is received at ANS’s United States warehouse.  Product will be invoiced to ANS in United States dollars and all payments shall be made in U.S. Dollars.  Payment shall be deemed made on the payment postmark date or the actual date of electronic funds transfer, if applicable. 

6.              LABELING, PACKAGING, INSPECTION, DOA AND DELIVERY TERMS

6.1                 Product Label and Packaging.  The Products will be packaged in accordance with the written specifications, agreed to by the Parties.  Supplier shall provide the label and packaging identifications needed in order to comply with the laws, rules, orders and regulations of applicable government authorities, including but not limited to any Federal Communications Commission (“FCC”) regulations with respect to the Product and any other laws and governmental requirements affecting the labeling and packaging of the Product.  The Product must include identification of the manufacturing date of the Product.  Supplier and ANS will work together to ensure that any Carrier Customer label and packaging requirements are complied with. 

6.2                 Inspection of Products.  ANS may inspect any Products and may reject all defective, damaged or non-conforming Products within thirty (30) days after receipt of the shipment at ANS’s United States warehouse (the “Non-Conforming Products”).  ANS shall have the right to return Non-Conforming Products to Supplier, at Supplier’s expense, and Supplier shall accept the return of such Non-Conforming Products for full-credit or shall replace such Non-Conforming Products with brand new replacement Products, at ANS’s option. 

6.3                 Dead on Arrival Products.  A Product that is returned to a Carrier Customer within thirty (30) days of sale to an end-user customer (or such longer time period during which a Carrier Customer is permitted to return a Product to ANS as set forth in the applicable Product Term Sheet) will be deemed as a Dead on Arrival (“DOA”) Product.  Proof of Purchase or Proof of Activation will be provided for DOA Products.  In the event that ANS performs any software upgrades to the Products, then any Products found to be defective during such software upgrades will be deemed as DOA.  Any Products found to be DOA Products will be returned to Supplier, at Supplier’s expense, and Supplier shall accept the return of such Products for full-credit or shall replace such Products with a brand new replacement Product, at ANS’s option.

6.4                 Post Launch Product Defects.  If after the launch of a Product, defects are found in Supplier’s first full Purchase Order for a Product by ANS or the Carrier Customer, ANS may elect at its sole discretion to: (i) cancel and return without penalty any shipped or accepted Purchase Orders for new Product or full credit; and/or (ii) reschedule and delay without penalty any pending Purchase Orders until such defects with the Product are corrected and meet the Carrier Customer’s approval. 

6.5                 Any replacement Products shall have a new electronic serial number (ESN or IMEI).  Supplier shall pay for the expenses related to any defective, Non-Conforming and DOA Product returns or exchanges including freight, insurance and packaging costs and any other expenses. 

6.6                 Delivery Terms.  The Product shall be delivered designated DDP ANS’s United States warehouse (Incoterms 2010).  Supplier shall obtain adequate insurance to cover ANS’s risk of loss or damage for the full value of the Products during carriage up to the point of delivery at ANS’s United States warehouse.  Title to and risk of loss (including financial responsibility for damage or loss) for the Products will pass to ANS upon receipt of the Products by ANS at ANS’s United States warehouse. 

6.7                 Late Delivery.  In case of late delivery caused by Supplier’s fault, which exceeds seven (7) days from the delivery date, Supplier shall airfreight (via overnight delivery) the Product to ANS at Supplier’s expense.  Supplier shall be liable for any late delivery damages, costs or penalties incurred by ANS from the delay against the Carrier Customers requested delivery of the Product.  In the event the delay continues for more than 30 days, then ANS may cancel the affected Purchase Order.

7.              WARRANTIES

7.1                 Supplier General Warranty.  Supplier represents and warrants that the Products will (i) perform in conformity in all material respects with specifications, information and documentation supplied by Supplier; (ii) be new, merchantable, free from defects in design, materials or workmanship and fit and sufficient for the purposes intended by the end user customer; (iii) comply at all times with the applicable laws, rules, orders and regulations of applicable government authorities, including but not limited to any FCC regulations and any other laws and governmental requirements affecting the Products; (iv) to the best of Supplier’s knowledge, not infringe on any patents, trademarks, trade secrets, copyrights, or any other intellectual property rights; and (vi) perform on, be compatible with and operate satisfactorily on the Carrier Customer’s network system.  Supplier further represents and warrants that it has good and warrantable title to the Products, free and clear of any third-party Intellectual Property rights relating to Products, liens or encumbrances and that Supplier has full power and authority to license the software, and to convey all other rights and license granted to ANS under this Agreement.

7.2                 Product Warranty.  Supplier warrants that the Product will be free from defect in material, workmanship and design and will conform to the specifications for the Product for a period of twelve (12) months after the activation date of the Product.  With respect to new maintenance or software releases for bug fixes, patches, upgrades, updates, error corrections, revisions, enhancements or improvements (each, a “Release”) that are installed on Products already deployed in the field, Supplier warrants that the Release will be free from defects in design, materials or workmanship and shall otherwise conform to the specifications for the Product for a period that is the longer of twelve (12) months from the date of Release on such deployed Product or six (6) months from the date of the installation of the Release.

7.3                 Harmful Codes.  Supplier represents and warrants that the Products will not contain any virus or any other contaminant or disabling devices including, but not limited to, codes, commands or instructions that may have the effect or be used to access, alter, delete, damage or disable the Products or a Customer’s network system.

7.4                 All warranties will survive any inspection, acceptance, payment, or resale by ANS.  Supplier acknowledges and agrees that these representations and warranties are reaffirmed with each shipment or delivery of Products. 

8.              PRODUCT REPAIRS

8.1                 ANS will have its own repair service center to replace, refurbish or repair Products found to be defective under normal use and service by end user consumers.  For warranty repairs, Supplier, at its cost, shall support, ANS and/or ANS’s Carrier Customer’s service center in this regard by providing technical assistance, engineering support, training, service manuals, software, quality control, interface testing equipment, software upgrading equipment, cables, dongles and schematics.  Supplier shall be responsible for the repair costs associated with servicing the repair of returned Products which includes the costs for spare parts, labor repair costs, replacement Products, freight/transportation costs and any Carrier Customer mandatory reverse logistic penalty fees.  Based on anticipated consumer warranty requirements, Supplier shall supply the required spare parts and/or accessories for the Products for use by ANS or the Carrier Customer’s repair service center in the after sales warranty service, repair and refurbishment.  ANS and Supplier will discuss or meet from time to time to review the utilization of spare parts and/or accessories in Product returns and the Parties shall work together to ensure sufficient spare parts and accessories inventory is in place to be commensurate with the volume of repairs.  The costs and pricing for repair services will be mutually agreed to by the Parties in writing. 

8.2                 Supplier shall comply with and satisfy each Carrier Customer’s turn around time (“TAT”) requirements with respect to its repair needs by providing ANS with timely and sufficient replacement units and/or spare parts.  The TAT repair requirement for each Carrier Customer is five (5) days or such shorter time period as set forth in the applicable Product Term Sheet.  Supplier shall comply with and satisfy each Carrier Customer’s mandatory reverse logistic penalty fees  Each Carrier Customer’s mandatory reverse logistic penalty fees will be outlined in the Product Term Sheet or other suitable documents.

8.3                 For a period of three (3) years from the delivery of the last shipment of Product ordered by ANS under this Agreement, or such longer period as otherwise required by a Carrier Customer, Supplier shall ensure the availability of sufficient spare parts and accessories for Products or spare Products to support ANS’s and/or Supplier’s service repair obligations for both in warranty and out of warranty repair of the Product.  If within three (3) years following the discontinuance of a specific model, Supplier becomes aware that a supplier is discontinuing a part or accessory, Supplier shall immediately notify ANS and the Parties will work together in good faith to devise a solution. 

9.              SEED STOCK, FRU AND MDF

9.1                 Seed Stock.  “Seed Stock” means Supplier provided extra supply of Product model devices, in fully kitted form (i.e. model Product, battery, accessories, charger, literature, SD card, manual and retail packaging), made available at no additional charge to ANS in order to meet ANS’s Carrier Customer needs.  Supplier shall supply an appropriate quantity of Product to ANS as Seed Stock to meet ANS’s Carrier Customer needs.  The quantity and delivery date of the Seed Stock will be agreed to by the Parties in writing or as set for in the applicable Product Term Sheet.   

9.2                 Marketing Development Funds.  Supplier shall provide Marketing Development Funds (“MDF”) required by each Carrier Customer.  The MDF amount will be will be agreed to by the Parties in writing or as set for in the applicable Product Term Sheet.  The Parties shall cooperate on the marketing and sale of the Products and discuss any joint marketing and sales activities.

10.           EPIDEMIC FAILURE

10.1              Failure Rate Calculation.  The monthly in-warranty failure rate is calculated by dividing the number of monthly in-warranty defective Products (resulting from the same root cause and confirmed in the repair process) by the average monthly sales.  The cumulative in-warranty failure rate is calculated by dividing the number of cumulative in-warranty defective Products (and confirmed in the total repair process) by the total in-warranty activations. 

10.2              Epidemic Failure.  An “Epidemic Failure” means (i) the monthly in-warranty failure rate of a model Product resulting from the same root cause exceeds within any given month (a) one (1%) percent for a USB device Product (b) one and one half (1.5%) percent for a feature handset Product, or (c) two (2%) percent for a smart phone Product; OR (ii) the cumulative in-warranty failure rate of a Product exceeds within any time period of twelve (12) months (a) two (2%) percent for a USB device Product (b) three (3%) percent for a feature handset Product or (c) four (4%) percent for a smart phone Product.

10.3              In the event of an Epidemic Failure, Supplier shall be responsible for and pay for all costs and expenses relating to such Epidemic Failure, including but not limited to the cost of replacement parts, replacement Products, penalties, fees, labor, transportation, Price Protection, lab testing and installation charges incurred by ANS or invoiced to ANS by a Carrier Customer. 

10.4              ANS shall have the right, pending correction of the Epidemic Failure, to postpone further shipments of the Product affected by such Epidemic Failure by giving written notice of such postponement to Supplier.  Supplier shall promptly prepare and propose a corrective action plan addressing implementation and procedure milestones for remedying such Epidemic Failure.  Both Parties shall use commercially reasonable efforts to implement the remedy in accordance with the agreed upon schedule.  If Supplier cannot correct such Epidemic Failure within thirty (30) days, ANS may cancel the corresponding Purchase Orders, binding portion of its Forecast or if applicable the minimum purchase volume and Supplier shall buy back all Products subject to Epidemic Failure in ANS’s inventory and its Carrier Customers’ inventory, at ANS’s purchase price. 

11.           PRODUCT CHANGE, PRODUCT DISCONTINUANCE, TESTING, SERVICE AND SUPPORT

11.1              Product Change.  In the event that Supplier (whether itself or at the request of a Carrier Customer) determines that it will make a material change in its Product design, manufacturing process, specifications or parts that will or might impact the form, fit or function of the Product (“Altered Product”), Supplier shall provide ANS with ninety (90) days prior written notice of the decision to proceed with the change, which must be approved by the Carrier Customer.  In no event shall any such Altered Product fail to meet the Product specifications without ANS’s prior written consent.  Supplier shall continue to accept Purchase Orders for the then current version of the Product (“Unaltered Product”) for the ninety (90) day period following notice to ANS of the intent to make the Altered Product, or as long as the Unaltered Product is available, if longer.  Supplier shall honor the Product warranty provided for in this Agreement and any obligation to provide associated services for any Altered or Unaltered Product it sells to ANS under this Agreement.  ANS may request Supplier to continue to provide ANS with Unaltered Products and Supplier will use commercially reasonable efforts to comply with such request. 

11.2           Product Discontinuance.  Supplier shall provide ANS with at least ninety (90) days prior written notice of Product discontinuance. 

11.3           Testing.  All Products must satisfy the agreed test and quality standards of ANS Carrier Customers, and meet agreed and applicable industry quality and performance standards and comply with all applicable legal and regulatory requirements.  Supplier shall be responsible for the costs of all certification testing of a Product which is required to approve the Product on a Carrier Customer’s network system.  This includes but is not limited to validation, certification and acceptance testing and any testing and other Carrier Customer prescribed tests to qualify the Product on the Carrier Customers network.  Supplier shall provide ANS with the documented results on all required testing performed.  ANS will thereafter provide the Carrier Customer with a complete submission package which will include all the testing results performed on the Product.  Supplier shall provide, at no charge, quantities of Products requested by the Carrier Customers and ANS for engineering, testing and qualification purposes as specified in the Product Term Sheet or as otherwise agreed to by the Parties in writing.

11.4           Software Solutions.  Supplier shall expedite software solutions for problems encountered by ANS or its Carrier Customers with respect to the Products, with time being of the essence.

11.5           Service and Support.  Supplier shall provide training and documentation to ANS as set forth in the Product Term Sheet or as otherwise agreed to by the Parties in writing.  Supplier shall provide ANS with support for identified and agreed service and device quality issues. 

12.           LICENSE GRANTS AND REMOVAL OF TRADEMARKS

12.1              Supplier hereby grants to ANS a perpetual, irrevocable, royalty-free, non-exclusive right and license under any and all of Supplier’s intellectual property solely as necessary for ANS to exercise its rights and perform its obligations under this Agreement.  In addition, Supplier hereby grants to ANS a right and license to use and display Supplier’s name and logo on Products and related accessories, packaging and documentation sold to Carrier Customers.  ANS may sub-license its rights under this Section 12.1 to its Carrier Customers. 

12.2              Supplier shall remove ANS's and/or its Carrier Customer’s names, trademarks and any references to ANS and/or its Carrier Customers from all goods rejected or canceled by ANS or purchased or produced in excess of quantities specified by ANS and/or its Carrier Customers and which are not thereafter purchased by ANS or the Carrier Customer.  In addition, Supplier covenants and agrees that it will not sell any Products bearing ANS's and/or a Carrier Customer’s proprietary trademarks to any third party without ANS’s written consent.

13.           INDEMNIFICATION

13.1              Supplier shall defend, hold harmless and indemnify ANS and its Carrier Customers from and against any and all liabilities, costs, damages (including without limitation willful infringement) and expenses incurred by ANS , in connection with any claim, demand, tender of defense and indemnity, action or lawsuit based on the alleged infringement of any United States or foreign patent, copyright, trade secret, trademark or intellectual property right in connection with any Products purchased from Supplier (an “IP Claim”). 

13.2              Supplier shall defend, hold harmless and indemnify ANS and its Carrier Customers from and against any and all liabilities, costs, damages and expenses incurred by ANS. 

13.3              Supplier shall defend, hold harmless and indemnify ANS and its Carrier Customers from and against any and all liabilities, costs, damages and expenses incurred by ANSin connection with any claim, demand, tender of defense and indemnity, governmental or administrative investigation, action or lawsuit that may arise from (i) violations of state, federal or consumer privacy laws and issues in connection with the data information that is collected by the Products or from ANS’s Carrier Customers or end user consumers; and (ii) the improper cleaning of data information, content, and applications from returned Product.

13.4              Supplier shall defend, hold harmless and indemnify ANS and its Carrier Customers from and against any and all liabilities, costs, damages and expenses incurred by ANSin connection with any claim, demand, tender of defense and indemnity, action or lawsuit based on a design or manufacturing defect of a Product leading to an Epidemic Failure or where such design or manufacturing defect results in injuries (including death or damage to property) caused by the intended use of the Product furnished to ANS by Supplier.

13.5                   In the event that Supplier, upon notice from ANS, does not assume the defense of ANS, Supplier shall reimburse ANS for all liabilities, damages, costs, expenses and attorneys’ fees incurred by ANS.

14.           LIMITATION OF LIABILITY

EXCEPT FOR SUPPLIER’S INDEMNIFICATION OBLIGATIONS IN SECTION 13 AND SUPPLIER’S PRODUCT EPIDEMIC FAILURE OBLIGATIONS IN SECTION 10, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT, WHETHER OR NOT A PARTY WAS ADVISED OF OR HAS HAD ADVANCED NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.

NOTWITHSTANDING THE FOREGOING, SUPPLIER UNDERSTANDS AND ACKNOWLEDGES THAT ANS MAY BE REQUIRED TO PAY PENALTIES, LIQUIDATED DAMAGES OR THE LIKE TO ITS CUSTOMERS IN THE EVENT OF CERTAIN TYPES OF PRODUCT PERFORMANCE AND/OR DELIVERY ISSUES THAT MAY ARISE UNDER ANS’S CUSTOMER AGREEMENTS (“ADDITIONAL CUSTOMER FEES”).  ACCORDINGLY, SUPPLIER AGREES THAT IF ANY SUCH ADDITIONAL CUSTOMER FEES ARE INCURRED BY ANS DUE TO SUPPLIER’S BREACH OF THIS AGREEMENT, SUPPLIER WILL REIMBURSE ANS FOR ALL SUCH ADDITIONAL CUSTOMER FEES; PROVIDED HOWEVER, THAT ANS SHALL TAKE COMMERCIALLY REASONABLE STEPS TO MITIGATE ANS’S OBLIGATION TO PAY SUCH ADDITIONAL CUSTOMER FEES.

15.           INSURANCE

Supplier shall maintain and cause Supplier’s subcontractors to maintain during the term of this Agreement: (1) Workers’ Compensation insurance as prescribed by the law of the state or nation in which the Work is performed; (2) employer’s liability insurance with limits of at least $2,000,000 for each occurrence; (3) automobile liability insurance if the use of motor vehicles is required, with limits of at least $1,000,000 combined single limit for bodily injury and property damage per occurrence; (4) Commercial General Liability (“CGL”) insurance, including Blanket Contractual Liability and Broad Form Property Damage, with limits of at least $10,000,000 combined single limit for bodily injury and property damage per occurrence; (5) CGL insurance endorsed to include products liability and completed operations coverage in the amount of $10,000,000 per occurrence, which shall be maintained for at least one (1) year following the expiration or termination of this Agreement; and (6) Product Liability Insurance in the amount of $10,000,000 per occurrence.  All insurance shall be occurrence based and shall designate ANS, its affiliates, and each of their directors, officers and employees (all referred to in this clause as “ANS Parties”) as additional insureds.  All the foregoing insurance must be primary and non-contributory and required to respond and pay prior to any other insurance or self-insurance available.  Any other coverage available to the ANS Parties shall apply on an excess basis.  Supplier agrees that Supplier, Supplier’s insurer(s) and anyone claiming by, through, under or in Supplier’s behalf shall have no claim, right of action or right of subrogation against the ANS Parties or their customers based on any loss or liability insured against under the foregoing insurance.  Supplier shall furnish prior to the start of work certificates or adequate proof of the foregoing insurance including, if specifically requested by ANS, copies of the endorsements and policies.  ANS shall be notified in writing at least thirty (30) days prior to cancellation of or any material change in the policy.  Insurance companies providing coverage under this Agreement must be rated by A.M. Best with at least an A- rating and a financial size category of at least Class VII.

16.           CONFIDENTIALITY

16.1              “Confidential Information” means any information, specifications, data, drawings, designs or know-how, prices, order volumes, forecasts, Product roadmaps, financial information, and other proprietary information disclosed by one party ("Disclosing Party") to the other party ("Receiving Party") in connection with this Agreement, including without limitation the provisions hereof, whether such disclosure is (i) in writing, or (ii) orally. If information is provided orally, it will be treated as Confidential Information if it is designated as confidential or proprietary at the time of disclosure by the Disclosing Party and described as such in a writing provided to the Receiving Party within thirty (30) days of the oral disclosure, which writing will be marked as confidential or proprietary. 

16.2              Notwithstanding the foregoing, Confidential Information shall not include information which: (i) is or becomes generally known or available by publication through no fault of the Receiving Party; (ii) was known by the Receiving Party before receipt from the Disclosing Party; (iii) is independently developed by the Receiving Party without use of or access to the Disclosing Party’s Proprietary Information; or (iv) is obtained from a third party without the obligation of confidentiality.

16.3              The Parties shall (i) maintain the confidentiality of each other’s Confidential Information and not disclose it to any third party, except as authorized by the original disclosing Party in writing; (ii) restrict disclosure of Confidential Information only to employees, contract employees and third party contractors who have a "need to know" in order for the Party to perform its obligations and exercise its rights under this Agreement, and who are bound to maintain the confidentiality the Confidential Information by terms of nondisclosure no less restrictive than those contained herein; (iii) handle Confidential Information with the same degree of care the receiving Party applies to its own confidential information, but in no event, less than reasonable care, and (iv) use Confidential Information only for the purpose of performing, and to the extent necessary to fulfill, their respective obligations under this Agreement; (v) promptly notify the other Party upon discovery of any unauthorized use or disclosure of the Confidential Information and take reasonable steps to regain possession of the Confidential Information and prevent further unauthorized actions or breaches of this Agreement. 

16.4              Confidential Information is and at all times will remain the property of the disclosing Party.  No use of any Confidential Information is permitted except as expressly provided herein, and no grant under any proprietary rights is hereby given or intended, including any license implied or otherwise. Upon receipt of written request, a receiving Party will return to the disclosing Party all Confidential Information disclosed by the disclosing Party, along with all copies and portions thereof.  Each Party's obligations under this Agreement to keep confidential and restrict use of the other Party's Confidential Information will survive two (2) years from expiration or termination of this Agreement.

17.           GENERAL PROVISIONS

17.1              Independent Contractors.  Each Party shall be considered an independent contractor. The relationship between the Parties shall not be construed to be that of employer and employee, nor constitute a partnership, joint venture or agency of any kind.  Neither Party shall have any right to enter into any contracts or commitments in the name of, or on behalf of, the other Party, or to bind the other Party in any respect whatsoever.

17.2              Legal Notices.  All notices and other communications required or contemplated under this Agreement must be written and signed by an authorized representative of the Party providing such notice and be transmitted to the address shown below either by (i) personal delivery, (ii) expedited messenger service, (iii) registered or certified mail, postage prepaid and return receipt requested or sent by Federal Express or other similar overnight delivery service , (iv) electronic facsimile with confirmed answer back, or (v) electronic mail with confirmed answer back.  Notices in conformity with the requirements of this Section 17.2 will be deemed given as of the day received.  Either Party may notify the other Party of a change to the designated contacts by notice consistent with the requirements of this paragraph.  Notices will be sent to the Parties at the following addresses:

17.3        Force Majeure.  No Party shall be liable for any default or delay in the performance of its obligations under this Agreement if and to the extent such default or delay is from causes outside the reasonable control of a Party.  Such causes may include fire, flood, earthquake, natural disasters or other acts of God, terrorist acts, riots, civil disorders, freight embargoes, government action, or the like, provided the non-performing Party is without fault in causing such default or delay, and such default or delay could not have been prevented by reasonable precautions and could not reasonably be circumvented by the non-performing Party through the use of alternate sources, workaround plans, or other means (including disaster recovery services).  In such event the non-performing Party shall be excused from further performance or observance of the obligations so affected for as long as such circumstances prevail, provided such Party continues to use commercially reasonable efforts to recommence performance or observance without delay.  Any Party so delayed in its performance shall notify the Party to whom performance is due in writing within forty-eight (48) hours of the inception of such delay, and describe with a reasonable level of detail the circumstances causing such delay.  Should any event delay the performance by a Party for sixty (60) days or more, the other Party may terminate all or any portion of a Purchase Order or this Agreement upon written notice to the delayed Party.

17.4        Governing Law and Jurisdiction.  Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be governed, construed and interpreted in accordance with the internal laws of the State of New York without application of conflict of laws principles. This Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. ANS and Supplier will attempt to settle any claim or controversy arising out of this Agreement through consultation and negotiation in good faith and spirit of mutual cooperation.  Disputes will be resolved by the following process.  The dispute will be submitted in writing to a panel of two (2) senior executives from each of ANS and Supplier for resolution.  If the executives are unable to resolve the dispute within fifteen (15) days, either Party may submit the dispute to the state or federal courts of competent sitting in the City and State of New York and the Parties hereto consent to the jurisdiction of any state or federal court located in the City and State of New York and waive any objection to such venue.

17.5              Section Headings.  Section headings in this Agreement are for convenience only, and shall not be used in construing the Agreement.

17.6              Severability.  If any provision of the terms of this Agreement be held to be invalid, illegal or unenforceable, such provision shall be enforced to the fullest extent permitted by applicable law and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired and shall continue in full force and effect. The Parties will negotiate in good faith to replace the unenforceable provision with an enforceable provision with effect nearest to that of the provision being replaced.

17.7              No Implied Waivers.  Failure of either Party to insist upon the performance of any term, covenant, or condition in this Agreement, or to exercise any rights under this Agreement, will not be construed as a waiver or relinquishment of the future performance of any such term, covenant, or condition, or the future exercise of any such right, and the obligation of each Party with respect to such future performance will continue in full force and effect.

17.8              Assignment.  Except as otherwise provided herein, neither Party may assign this Agreement or any of its rights or obligations hereunder, without the prior written approval of the other Party, which will not be unreasonably withheld. Any attempted assignment, delegation or transfer without the necessary approval will be void. In the event of a sale or transfer of Supplier’s business or assets, whether by operation of law or otherwise, Supplier will make commercially reasonable efforts to make assumption of its obligations under this Agreement a condition of the sale or transfer.  Supplier hereby authorizes ANS to assign its rights or obligations under this Agreement without the need for further Supplier approval, in whole or in part, in connection with the divestiture, merger, consolidation, or similar transaction affecting a ANS business covered by this Agreement.  This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns.

17.9              Foreign Corrupt Practices Act.  Notwithstanding nor limiting any provisions contained herein, Supplier acknowledges that it is familiar with the United States Foreign Corrupt Practices Act, which prohibits the offering, giving or promising to offer or give, directly or indirectly, money or anything of value to any official of a government, political party or instrumentality thereof in order to assist Supplier or ANS in obtaining or retaining business.  Supplier shall not act in any fashion or take any action, in the performance of its obligations under this Agreement, which violates, or would render ANS liable for a violation of, either the United States Foreign Corrupt Practices Act or any similar statute or regulation in any jurisdiction in which Supplier does business.  Supplier agrees to defend, indemnify and hold ANS harmless from all liabilities, claims, losses and damages arising from Supplier’s breach of this obligation.

17.10           Survival.  All representations, warranties and indemnities made herein shall survive the termination of this Agreement and shall remain in full force and effect.  All provisions of this Agreement which contain continuing obligations shall survive its expiration or termination. 

17.11           Entire Agreement.  This Agreement and all its exhibits contains the entire understanding between the Parties with respect to the subject matter herein and supersedes any prior agreements relating to this subject.

17.12           Cooperation.  Each Party shall execute any and all further or additional instruments or documents as the other Party may reasonably request in order to give effect to the provisions contained herein and shall perform all other acts that may be necessary or appropriate to carry out the intent and purposes of this Agreement.

17.13           Publicity.  Supplier will not issue a press release or make any other disclosure regarding this Agreement, the Parties’ business relationship or about ANS or ANS’s business generally, without ANS’s prior written consent.

17.14           Set Off.  ANS will, to the fullest extent permitted by applicable law, have the right to apply any amounts owed by Supplier to ANS, to reduce any amounts payable by ANS to Supplier.

17.15           Counterparts.  This Agreement may be executed in two (2) or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument.  The exchange of a fully executed Agreement (in counterparts or otherwise) by facsimile or electronic transmission shall be sufficient to bind the Parties to the terms and conditions of this Agreement.

      IN WITNESS WHEREOF, ANS and Supplier have caused this Agreement to be executed by their duly authorized representatives, each of which shall constitute an original as of the Effective Date.

PRODUCT TERM SHEET