PURCHASE ORDER TERMS AND CONDITIONS

The following Purchase Order Terms and Conditions (“Terms and Conditions”) are incorporated into the Purchase Order (“PO”) between Buyer and Seller, which form an agreement (the “Agreement”). The Agreement is expressly limited to its terms, and, except as may be agreed in a mutually executed amendment to the Agreement, Buyer hereby objects to and rejects any additional or different terms that may appear on any other document related to this sale and Buyer performance shall not constitute acceptance of Seller terms. Seller’s acceptance of an order pursuant to the PO and/or performance or delivery of any goods pursuant to the PO shall operate as acceptance by Seller of these Terms and Conditions.

If there is any discrepancy between a negotiated contract between Buyer and Seller, the PO, these Terms and Conditions, and any exhibit to the PO, the order of precedence shall be: (i) the negotiated contract between Buyer and Seller; (ii) the PO, (iii) these Terms and Conditions, and (iv) the applicable exhibit; provided that, to the extent of any inconsistency in specifications, drawings, standards, or other technical or performance requirements, Seller shall comply with the most stringent, highest quality, or highest performance requirement applicable to the Goods or Services, as reasonably determined by Buyer.

1. Goods and Services Description: Seller shall provide all goods and services (the “Goods and Services”) in the quantities, timeline and with the specifications or in accordance with the standards as set out in the PO and any attachments thereto.

2. Order Commitment: Upon acceptance of the PO, the quantities, specifications, and delivery schedules set forth in the PO shall constitute firm and binding obligations of Seller and Seller may not stop or suspend performance except for a material breach by Buyer. Seller shall supply the Goods and Services strictly in accordance with the PO and shall not cancel, delay, or modify any order, including any price changes, without Buyer’s prior written consent and a mutually executed amendment to the PO. Buyer may, by written notice, make changes within the general scope of the PO, including changes to specifications, quantities, delivery schedule, or place of delivery. If Seller believes such change causes an equitable adjustment to the Contract Price or schedule, Seller shall notify Buyer in writing within five (5) days of receipt of the change, providing reasonable supporting detail. No adjustment shall be binding unless set forth in a written change order executed by Buyer and Seller. Pending agreement on any adjustment, Seller shall diligently proceed with performance as changed.

3. Price and Payment Terms: Unless otherwise stated (i) the price stated on the PO (the “Contract Price”) shall be inclusive of packaging, boxing, crating, and loading to carrier, (ii) is inclusive of all applicable taxes, duties, and charges, except for separately stated sales or use taxes that Buyer is legally obligated to pay. Seller shall be responsible for all other taxes, including without limitation income, franchise, and payroll taxes, and shall provide any documentation reasonably requested by Buyer to substantiate the proper tax treatment; (iii) Seller shall invoice Buyer only upon delivery and acceptance by Buyer of the Goods and Services, and (iv) invoices shall be paid thirty (30) days from receipt of a correct invoice with supporting documentation. In the event any line item is cancelled by Buyer, all remaining pricing shall remain unchanged, except that freight and/or shipping charges shall be adjusted proportionately. If the price is not stated in the PO, the price shall be the lower of (i) the last price quoted by Seller, or (ii) the prevailing market price. Buyer may withhold or set off any amounts owed by Seller against amounts due to Seller under the PO. POs issued for Services may be subject to retainage. Buyer shall denote such retainage within the body of the PO.

4. Shipping, Delivery and Acceptance: Delivery dates and quantities shall be as set out in the PO. All goods shall be shipped FOB Destination (Incoterms 2020), unless otherwise specified. RISK OF LOSS SHALL REMAIN WITH SELLER UNTIL ACCEPTANCE BY BUYER. Title shall pass upon Buyer’s acceptance. Buyer shall have a reasonable time to inspect the goods. Payment shall not constitute acceptance. Buyer may reject nonconforming Goods and Services at Seller’s expense or accept them with a price adjustment. Seller shall, at its sole risk, cost and expense, promptly remove any rejected Goods and Services upon notice of rejection, and Buyer may, at Seller’s risk and expense, return or store such Goods if Seller fails to do so. Buyer may also repair or replace such Goods or Services at Seller’s cost if Seller fails to promptly cure. Seller shall promptly notify Buyer of any anticipated delay and take all commercially reasonable actions, at its sole cost, to mitigate such delay.

5. Delivery Schedule: TIME IS OF THE ESSENCE. Seller shall deliver conforming Goods and perform all Services strictly in accordance with the delivery dates and schedule set forth in the PO. Any delay, failure to meet milestones, or delivery of nonconforming Goods or Services shall constitute a material breach. Seller shall be liable for, and shall promptly reimburse Buyer for, all losses, costs, damages, and expenses (including, without limitation, cover costs, expedited shipping, re-procurement costs, and any amounts (including liquidated damages) assessed against Buyer by its customers) arising out of or relating to Seller’s failure to meet the required schedule or to deliver conforming Goods and Services.

   To the extent the PO provides for liquidated damages on a per-day (or other periodic) basis for delay or nonperformance, the parties agree that (i) such liquidated damages are a reasonable pre-estimate of the damages Buyer would incur, (ii) actual damages would be difficult or impracticable to ascertain, and (iii) such liquidated damages are not a penalty but are intended to compensate Buyer for anticipated harm. Seller agrees that such liquidated damages are enforceable to the fullest extent permitted by applicable law and shall accrue from the first day of delay until full performance is achieved.

   Buyer may, at any time and without prior notice, deduct and set off any liquidated damages and any other amounts owed by Seller under the PO or otherwise against any amounts due or to become due to Seller under this or any other agreement with Buyer. Payment of liquidated damages shall not limit or preclude Buyer’s right to recover any additional damages to the extent permitted by applicable law, nor shall it limit any other rights or remedies available to Buyer at law or in equity, including termination for default. All amounts due under this Section shall be payable within fifteen (15) days of demand.

6. Warranty: Seller agrees to provide Buyer all of its standard warranties and any additional warranties which are set out in Exhibit C-Warranty. In addition, Seller represents and warrants that all Goods shall (a) strictly conform to all specifications, drawings, samples, and requirements of Buyer, (b) be new, (c) be free from defects in design, material, and workmanship, (d) be merchantable, (e) be safe and appropriate for the purposes for which goods of that kind are ordinarily used, (f) be fit for any particular purpose of which Seller has knowledge or reason to know, (g) not infringe on any third party intellectual property rights. Seller further warrants that all Goods shall conform to any statements or representations made by Seller in specifications, packaging, labeling, or marketing or advertising materials relating to such Goods, and that all Goods shall be adequately contained, packaged, marked, and labeled in accordance with applicable laws and industry standards. The warranty period for Goods shall be as specified in the PO. If no such period is specified, the warranty shall remain in effect for a period of two (2) years from the date of acceptance by Buyer.

   Seller warrants that all Services shall be performed in a good and workmanlike manner in accordance with the highest standards applicable to such Services. Seller further warrants that all Services shall be free from defects for a period of one (1) year following the later of: (i) substantial completion of the project on which the Services were provided; (ii) the warranty period Buyer must provided for the same or similar services under the terms of any applicable project-specific contract; or (iii) the warranty period prescribed by applicable law.

   All warranties shall survive inspection, testing, acceptance, and use of the Goods or Services, and shall run to Buyer and its affiliates, successors, assigns, customers, and end users. Seller shall, at its sole cost and expense, promptly repair, replace, or correct any Goods or Services that fail to conform to the foregoing warranties upon notice from Buyer. If Seller fails to promptly cure any such nonconformity, Buyer may, upon reasonable notice to Seller, repair or replace such Goods or Services and charge Seller for all costs and expenses incurred in connection therewith. If any Goods or Services are nonconforming or defective in any respect, Buyer shall be entitled to pursue any and all remedies available at law or in equity, including, without limitation, recovery of all direct, incidental, and consequential damages.

   Any repaired or replaced Goods or Services shall be subject to a new warranty period of the same duration.

7. Work Product; Intellectual Property: To the extent Seller creates or develops any deliverables, designs, drawings, specifications, reports, data, or other materials in connection with the Services (collectively, “Work Product”), all right, title, and interest in and to such Work Product shall vest in Buyer upon creation, and Seller hereby assigns to Buyer all such rights. To the extent any Work Product does not qualify as a “work made for hire,” Seller hereby irrevocably assigns to Buyer all intellectual property rights therein. Seller shall execute such further documents as reasonably requested to perfect such rights. Seller retains ownership of its pre-existing intellectual property, but grants Buyer a perpetual, irrevocable, worldwide, royalty-free license (with the right to sublicense) to use, reproduce, modify, and distribute such pre-existing materials as incorporated into the Work Product for Buyer’s business purposes.

8. Insurance: Seller shall, at its sole cost, maintain in full force and effect during the term of the PO and for not less than two (2) years thereafter (for products/completed operations), insurance with insurers rated A-/VII or better by A.M. Best, including: (i) Commercial General Liability (including products/completed operations) with limits not less than $1,000,000 per occurrence and $2,000,000 aggregate; (ii) Automobile Liability with a limit not less than $1,000,000 combined single limit; (iii) Workers’ Compensation as required by law and Employer’s Liability with limits not less than $1,000,000; and (iv) Excess Insurance with a limit not less than $3,000,000 per occurrence. Upon request, Seller shall provide certificates of insurance evidencing such coverage. Where Services are performed on Buyer’s site, Seller shall name Buyer as an additional insured on the CGL on a primary and non-contributory basis and shall provide a waiver of subrogation in favor of Buyer to the extent permitted by law. Seller’s insurance shall not limit Seller’s obligations or liabilities under the PO.

9. Exclusive Terms; Rejection of Seller Terms:

   • (a) Acceptance of this PO is expressly limited to the terms and conditions contained in herein, including these Terms and Conditions (collectively, the “Order”). BUYER HEREBY OBJECTS TO AND REJECTS ANY ADDITIONAL, DIFFERENT, OR INCONSISTENT TERMS OR CONDITIONS CONTAINED IN ANY QUOTATION, PROPOSAL, ACKNOWLEDGMENT, INVOICE, CONFIRMATION, WEBSITE TERMS, CLICK-THROUGH TERMS, SHIPPING DOCUMENT, OR OTHER COMMUNICATION FROM SELLER, WHETHER ISSUED BEFORE OR AFTER THE DATE OF THIS ORDER. Any such terms shall be void and of no force or effect and shall not become part of any contract between Buyer and Seller.

   • (b) Seller’s commencement of performance, shipment of goods, delivery of goods or services, acknowledgment of this PO, acceptance of payment, or any other conduct indicating assent to this PO shall constitute Seller’s unconditional acceptance of this PO and all of its terms and conditions. Such acceptance is expressly conditioned on Seller’s assent to the terms of this PO.

   • (c) Buyer expressly rejects any proposal by Seller to modify, supplement, or replace any provision of this PO. No purported acceptance of this PO on terms that are additional to, different from, or inconsistent with this PO shall operate as an acceptance or counteroffer unless expressly agreed to in a writing signed by an authorized representative of Buyer that specifically references the provision being modified.

   • (d) Buyer objects in advance to any conflicting terms that may be contained in Seller’s forms or communications. Buyer shall not be deemed to have accepted any such terms by receiving goods or services, inspecting or using goods or services, issuing payment, failing to object, or otherwise performing under the parties’ contract.

   • (e) In the event of any conflict between this PO and any terms proposed by Seller, the terms of this PO shall control in all respects. Any reference in this PO to a quotation, proposal, or other document of Seller is solely for the purpose of incorporating descriptions of goods, services, quantities, specifications, pricing, or delivery requirements and shall not incorporate any terms or conditions contained therein.

   • (f) No course of dealing, course of performance, trade usage, electronic transaction history, automated acknowledgment, website posting, or prior exchange of forms shall modify or supplement the terms of this PO.

   • (g) The parties intend that this PO constitute the complete and exclusive statement of their agreement with respect to the purchase of the goods and services described herein. Any amendment, waiver, or modification of this PO shall be effective only if set forth in a written document expressly identified as an amendment to this PO and signed by an authorized representative of Buyer.

10. Other Contract Terms and Conditions:

    • a. Confidentiality: “Confidential Information” means all non-public information disclosed by or on behalf of either party (“Disclosing Party”) to the other party (“Receiving Party”), whether in written, electronic, or oral form, including without limitation technical, commercial, financial, pricing, and business information, and the existence and terms of the PO. The Receiving Party shall (i) use the Disclosing Party’s Confidential Information solely to perform its obligations or exercise its rights under the PO, (ii) not disclose such Confidential Information to any third party except to its employees, affiliates, and subcontractors who have a need to know and are bound by confidentiality obligations at least as protective as those herein, and (iii) protect such Confidential Information using at least reasonable care (and no less than the care it uses to protect its own similar information). Confidential Information does not include information that the Receiving Party can demonstrate: (a) is or becomes publicly available through no breach of the PO; (b) was rightfully known to the Receiving Party without restriction prior to disclosure; (c) is rightfully received from a third party without restriction; or (d) is independently developed without use of or reference to the Disclosing Party’s Confidential Information. If disclosure is required by law, regulation, or court order, the Receiving Party may disclose such Confidential Information to the extent required, provided it gives prompt notice (to the extent legally permitted) and reasonably cooperates with the Disclosing Party’s efforts to seek protective treatment. Upon written request or termination/expiration of the PO, the Receiving Party shall promptly return or destroy the Disclosing Party’s Confidential Information, except for archival copies maintained in the ordinary course pursuant to bona fide record retention policies. Notwithstanding the foregoing, Seller shall not (x) use Buyer’s Confidential Information to develop products or services for third parties, (y) disclose Buyer’s pricing or commercial terms, or (z) make any public statement or announcement regarding the PO or Buyer without Buyer’s prior written consent. The obligations in this Section shall survive for one (1) year after expiration or termination of the PO; provided, however, that with respect to Buyer’s Confidential Information, including pricing, customer information, and commercial terms, such obligations shall survive for a period of three (3) years after expiration or termination of the PO; and provided further that trade secrets shall be protected for so long as they remain trade secrets under applicable law.

    • b. Public Announcements: Seller shall not, without Buyer’s prior written consent, make any public announcement or disclosure or use Buyer’s name, logos, or trademarks in any marketing or promotional materials relating to the PO or the Goods or Services, except as required by law.

    • c. Compliance with the Law: Seller shall comply with all federal, state and local laws, regulations, and orders applicable and shall certify such compliance upon request by the Buyer. Seller shall comply with all applicable export control, import, and economic sanctions laws and regulations. Seller represents that neither it nor its principals are listed on any applicable government restricted party lists and that it will not supply Goods or Services from, to, or involving any sanctioned country, person, or entity in violation of applicable law. Seller shall provide information reasonably requested by Buyer to support compliance with this Section.

    • d. Non-Circumvention: During the term of this PO and for a period of twelve (12) months thereafter, Seller shall not, directly or indirectly, solicit, market, sell, lease, or otherwise provide goods or services that are the same as or substantially similar to the Goods or Services to any customer or prospective customer of Buyer that was introduced to Seller by Buyer or whose identity is disclosed to Seller (other than through Seller’s independent knowledge) in connection with this PO, that has the effect, whether direct or indirect, of bypassing Buyer. This restriction shall not apply to (i) customers with whom Seller can demonstrate it had an established commercial relationship prior to disclosure by Buyer, or (ii) general marketing activities not specifically targeted at such customers. Nothing herein shall restrict Seller from conducting its business generally, provided that Seller does not use Buyer’s Confidential Information or the relationship contemplated by this PO to circumvent Buyer. Seller acknowledges that any breach of this Section may cause irreparable harm to Buyer for which monetary damages may be inadequate, and Buyer shall be entitled to injunctive relief.

    • e. Audit; Records; Compliance: Seller shall maintain, for a period of three (3) years after final payment, accurate books and records sufficient to demonstrate (i) compliance with this PO and applicable laws, (ii) conformity of the Goods and Services to the requirements of the PO, and (iii) the basis of any charges that are subject to a good faith dispute by Buyer (if any). Upon reasonable prior written notice and during normal business hours, Buyer may review such records solely to verify the foregoing matters. Any such review shall be conducted in a manner that does not unreasonably interfere with Seller’s operations and shall not include access to Seller’s proprietary cost structure or pricing models except to the extent directly relevant to a disputed charge under the PO. Buyer shall keep non-public information reviewed under this Section confidential in accordance with the Confidentiality clause. Seller acknowledges and agrees that Buyer may retain the services of one of more third-party entities for purposes of ensuring Seller’s compliance with these Terms and Conditions. Seller shall reasonably cooperate with such third-party entities, including but not limited to providing documentation and other information as reasonably requested.

    • f. Termination: Buyer may terminate the PO, in whole or in part, at any time for convenience upon written notice, without liability except for conforming Goods delivered and accepted or Services properly performed prior to such termination. For the avoidance of doubt, Buyer shall not be liable for any lost profits, unabsorbed overhead, or other consequential or indirect damages arising out of such termination. Buyer may terminate for cause upon Seller’s breach, which is not cured within 10 days from notice, and Seller shall be liable for all damages resulting from such breach. Notwithstanding the foregoing, no cure period shall apply to (i) any failure to meet delivery dates or milestones, (ii) delivery of nonconforming Goods or Services that materially affect Buyer’s operations, (iii) any breach that is incapable of cure, or (iv) any repeated or persistent breach. Buyer may terminate the PO immediately upon written notice for any such breach.

    • g. Indemnification: Seller shall defend, indemnify, and hold harmless Buyer and its affiliates, officers, employees, agents, customers, and end users from and against any and all allegations, claims, damages, losses, liabilities, costs, and expenses (including attorneys’ fees) arising out of, relating to, or resulting from (i) the Goods or Services, (ii) any breach of this Agreement, (iii) any breach of warranty, or (iv) any negligent act or omission or willful misconduct of Seller or its employees, agents, or subcontractors. Such indemnity shall apply except to the extent caused by the sole negligence or willful misconduct of Buyer. For the avoidance of doubt, Seller’s obligations under this Section shall apply to claims brought by Seller’s own employees, subcontractors, or representatives, and Seller hereby waives any immunity or limitation of liability available under applicable workers’ compensation or similar laws to the extent necessary to give effect to this indemnity. Any limitation of liability or disclaimer by Seller is rejected and shall not apply to Seller’s obligations under this Section.

    • h. Independent Contractors: Seller agrees that the relationship established by the Agreement, does not create a partnership or joint venture.

    • i. Waiver of Consequential Damages and Limitation on Liability: Buyer shall not be liable for any incidental, consequential, special, or indirect damages and Buyer’s liability is limited to the Contract Price as set out in the PO.

    • j. Entire Agreement: This Agreement constitutes the entire agreement and may only be modified in a writing signed by Buyer.

    • k. Waiver: No waiver shall be effective unless in writing. No course of dealing shall modify this Agreement.

    • l. Notices: All notices shall be given in writing and shall be effective when actually delivered, with proof of receipt, and must be sent by (i) certified US mail, (ii) a recognized courier service (e.g. UPS, FEDEX), or (iii) email, to the party to whom the notice is to be given at the address shown upon the PO. Any party may change its address for notices by giving formal written notice to the other party.

    • m. Assignments: Seller may not assign without Buyer’s prior written consent. Buyer may assign without Seller’s consent to an affiliate or financing party.

    • n. Remedies: In the event Seller defaults or otherwise breaches the Agreement, Buyer shall have all rights and remedies available at law or in equity, all of which are cumulative and may be exercised concurrently or separately. Without limiting the foregoing, Buyer shall be entitled to recover from Seller all losses, damages, costs, and expenses arising out of or relating to such breach, including, without limitation, cover costs, re-procurement costs, incidental and consequential damages, and all reasonable attorneys’ fees, court costs, and expenses incurred in enforcing the PO or these Terms and Conditions or in connection with such breach. Seller acknowledges that a breach of the PO may cause irreparable harm to Buyer for which monetary damages may be inadequate, and Buyer shall be entitled to seek injunctive relief or specific performance, in addition to any other remedies available at law or in equity, without the necessity of posting bond to the extent permitted by applicable law.

    • o. Forum; Jurisdiction; Waiver of Jury Trial: Any action, suit, or proceeding arising out of or relating to the PO or these Terms and Conditions shall be brought exclusively in the state or federal courts located in Collin County, Texas, and in no other forum. Seller hereby irrevocably submits to the exclusive jurisdiction and venue of such courts and waives any objection based on improper venue or forum non conveniens. Buyer and Seller hereby knowingly, voluntarily, and irrevocably waive any right to a trial by jury in any action, proceeding, or counterclaim arising out of or relating to the PO, these Terms and Conditions, or the transactions contemplated hereby. In any litigation arising out of the PO or these Terms and Conditions, the prevailing party shall be entitled to recover its court costs and reasonable attorneys’ fees from the non-prevailing party.

    • p. Survival: Provisions relating to warranty, indemnification, confidentiality, audit, intellectual property, remedies, and any other provisions which by their nature should survive shall survive termination or expiration of the PO.

    • q. Binding Effect: This Agreement is entered into by Buyer and Seller, in consideration of the mutual covenants contained herein, and shall be binding upon their respective successors and permitted assigns. This Agreement may be executed in counterparts, including by electronic transmission, each of which shall be deemed an original and all of which together shall constitute one instrument. Agreed and accepted by Buyer and Seller upon the last dated signature below.