10-04534 Footprints and Models

10-04534

Tensility International Corp

CIRC CBL 8POS PLUG TO RCPT 32.8'

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DOWNLOAD AGREEMENT

This CAD Model Agreement (the “Agreement”) applies to any CAD Model (each a “Model” and collectively “Models”) you request from Digi-Key Corporation (“DigiKey”) and is a legally binding agreement between you and DigiKey. BY CLICKING “DOWNLOAD” BUTTON, YOU AGREE ON BEHALF OF YOURSELF, YOUR EMPLOYER, AND ANY OTHER PERSON OR ENTITY THAT YOU REPRESENT OR FOR WHICH YOU ARE THE AGENT (COLLECTIVELY REFERRED AS “YOU” OR “YOUR”) THAT YOU ARE BOUND BY THIS AGREEMENT. This Agreement is in addition to and supplements DigiKey’s Website Terms of Use and Conditions of Order. By agreeing to this Agreement you reaffirm your agreement to DigiKey’s Website Terms of Use and Conditions of Order. To the extent there is a conflict between this Agreement and DigiKey’s Website Terms of Use and Conditions of Order, this Agreement will control with respect to the Models you request. For the avoidance of doubt and without limiting the preceding, DigiKey’s Conditions of Order shall apply to any purchase of products by you from DigiKey.

1. Model Provided “As Is” Without Warranty. EACH MODEL IS PROVIDED ON AN AS-IS, AS-AVAILABLE BASIS AND WITHOUT WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE. YOU ASSUME ALL RISK OF YOUR USE OF A MODEL. UNDER NO CIRCUMSTANCES SHALL DIGIKEY BE LIABLE FOR ANY DAMAGE CAUSED BY YOUR USE OF OR RELIANCE ON A MODEL.

2. Intellectual Property. You acknowledge that you do not acquire any ownership rights, including any intellectual property rights, in or to the Model. You may use a Model solely for your internal business purposes, subject to the terms of this Agreement.

3. Your Representations and Warranties. You represent that you as an individual are at least eighteen (18) years of age and that you as an individual are able to bind your employer and any other person or entity that you represent or for which you are the agent to the terms of this Agreement. You further represent, warrant, and agree that you will not use Models to infringe or violate any right of any third party, including without limitation any intellectual property right, to create a product or service that infringes or violates any right of any third party, including without limitation any intellectual property right, or for any unlawful purpose.

4. Indemnification. You agree to indemnify, defend and hold DigiKey, and DigiKey’s affiliates, joint ventures, business partners, suppliers, vendors, licensors, licensees, employees, agents, representatives, officers, directors, and owners (the “DigiKey Parties”) harmless from and against any and all claims, demands, liabilities, damages, judgments, awards, settlement amounts, costs and expenses, including without limitation expert and attorneys’ fees, suffered or incurred by any of the DigiKey Parties resulting from or arising out of (i) any breach of this Agreement by you, (ii) your use of a Model, or (iii) any product or service you create using a Model.

5. Right to Discontinue DigiKey has the right to discontinue offering Models at any time in its sole discretion.

6. Limitation of Liability. IN NO EVENT SHALL DIGIKEY BE LIABLE TO YOU FOR ANY DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DIRECT, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES AS A RESULT OF LOST DATA OR LOSS OF ACCESS TO OR USE OF A MODEL), REGARDLESS OF THE LEGAL THEORY ASSERTED (WHETHER IN TORT, CONTRACT, OR OTHERWISE) AND REGARDLESS OF WHETHER DIGIKEY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN LIABILITIES OR WARRANTIES, SO SOME OF THE DISCLAIMERS AND LIMITATIONS IN THIS AGREEMENT MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, DIGIKEY'S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

7. Termination. DigiKey may immediately terminate this Agreement or your access to Models for any or no reason, with or without notice. The provisions of this Agreement relating to intellectual property, representations and warranties, disclaimers, limitations on liability, and indemnification, and any other provisions of this Agreement where context so indicates, shall survive termination of this Agreement.

8. Miscellaneous. Other than as expressly set forth in this Agreement, this Agreement sets forth the entire agreement and understanding between the parties regarding its subject matter and supersedes any prior understanding or agreements, whether written or oral, regarding the same subject matter. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision, with all other provisions remaining in full force and effect. This Agreement shall in all respects be governed by and interpreted, construed, and enforced in accordance with the laws of the United States of America and the State of Minnesota, without regard to that State's conflict of law provisions. This Agreement shall not be governed by or interpreted in accordance with the Uniform Computer Information Transactions Act (UCITA), the application of which is expressly excluded. Any dispute arising out of this Agreement will be venued in a state or federal court situated in Minneapolis, Minnesota, and you hereby irrevocably submit to the personal jurisdiction of such courts for that purpose. The failure of DigiKey to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by DigiKey in writing.

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10-04534

Tensility International Corp

CIRC CBL 8POS PLUG TO RCPT 32.8'

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10-04534 Footprints and Models

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