Terms

Last Updated: 9/4/24

1. Scope

These General Terms and Conditions for the Purchase of Direct Materials and Automotive Components (the “Terms”) apply to all purchase orders that reference the Terms (each a “PO”) and are deemed incorporated therein and entered into as of the Effective Date by Harbinger Motors Inc. as the purchaser (together with its affiliates, “Harbinger”) and the party to whom the PO is addressed (“Supplier”). Harbinger and Supplier are each referred to individually as a “Party” and collectively as the “Parties.”

2. Contract

All accepted POs, the Terms, and any applicable mutually executed agreements, including a Harbinger Supply Agreement, constitute the entire final contract between the Parties (the “Contract”), and supersedes all prior or contemporaneous understandings, agreements, negotiations, and communications, both written and oral. The Contract’s “Effective Date” is the earlier of the date (i) the Parties execute a written agreement; (ii) Harbinger issues a PO to Supplier; or (iii) the Parties begin discussing the subject matter relating to a PO.

3. Offer and acceptance

Each Contract is Harbinger’s offer to purchase Products identified in such Contract. The Contract is not Harbinger’s acceptance of any offer or proposal by Supplier, whether in its quotation, invoice, or otherwise. If Supplier’s quotation or other document is held to be an offer, that offer is objected to and entirely replaced by the offer made up of the Contract. Any references in the Contract to Supplier’s quotation or documents are solely to incorporate technical descriptions or specifications of Products, but only to the extent not conflicting with the Contract. Supplier will accept all POs that conform to the Parties’ written agreement. Each PO, as issued, including the Terms, will be deemed accepted by Supplier by any of the following: (i) written acceptance, including electronically; (ii) commencing any work under the PO; (iii) failing to object to the PO within ten days of Harbinger’s issuance of the PO; or (iv) any other conduct by Supplier that recognizes the existence of a contract regarding the PO’s subject matter. Supplier’s acceptance is limited to the Contract, including the Terms. Any additional or different terms proposed by Supplier are hereby objected to by Harbinger, will not become part of the Contract, and are replaced by the Contract and the Terms, notwithstanding acceptance of or payment for goods or similar acts, except to the extent Harbinger’s Supply Agreement or the PO specifies the additional or different terms. Harbinger is not obligated to issue any PO or Release and makes no warranties as to any quantity of Products it will order.

4. Order of precedence; duration

To the extent there is a conflict, the Contract’s document will prevail in the following order: (i) a PO amendment issued by Harbinger; (ii) the PO; (iii) the Parties’ written agreement; and (iv) the Terms. Unless otherwise stated therein, the duration of each Contract and PO is the period of time in which Harbinger uses certain Goods in production of a Harbinger Product (“Production Period”) and for ten years thereafter (“Service Period”).

5. Quantity; delivery

Time, quantity, and quality are of the essence as to Supplier’s performance under the Contract. Except to the extent due to a force majeure event, any failure by Supplier to timely comply with any timetable or project milestone, deliver the full quantity of Products, or meet quality, delivery, or other requirements under the Contract constitutes a default by Supplier and Harbinger may pursue its rights and remedies under the Contract, at law, and in equity, including by terminating the Contract, in whole or in part, for cause. Supplier will deliver Products to Harbinger in the quantities and on the dates set forth in the PO or Release issued by Harbinger and accepted by Supplier. If the quantity is not specified on the PO, the quantity is for one hundred percent (100%) of Harbinger’s requirements and Harbinger may issue Releases against a PO on a rolling basis. A “Release” is a written communication from Harbinger identifying a specific quantity of Goods and the delivery date Supplier will deliver such Goods by. Releases are binding to the extent set forth in this section. Supplier will accept all Releases that conform to the PO. Each Release is deemed accepted by Supplier unless it informs Harbinger in writing of Supplier’s objection and its proposed alternative terms within five days of Harbinger’s issuance of the Release. Upon written notice to Supplier, including electronically, Harbinger may reschedule or cancel a Release, in whole or in part. Harbinger’s only liability for rescheduling or canceling a Release is to pay, in accordance with the Contract, for Products that are to be delivered under the Release within the initial two weeks covered by that Release.

6. Safety stock

Supplier will maintain a safety stock of Products, at no additional cost, in a quantity sufficient to meet forecast deliveries of two weeks for Products manufactured in North America and of four weeks for Products manufactured elsewhere (“Safety Stock”). Supplier retains title to, and Harbinger has no obligation for, Safety Stock unless delivered to Harbinger under the Contract. Supplier may not sell, encumber, or use Safety Stock for any purpose other than to meet its obligations under the Contract.

7. Service; replacement requirements

During the Production Period and Service Period, Supplier will sell Products to Harbinger to fulfill Harbinger’s aftermarket replacement parts and service requirements for Harbinger Products. After expiration of the Production Period, Supplier will maintain tooling and adequate inventory to produce new service parts throughout the Service Period. The price for service Products during the initial three years of the Service Period shall be the price in effect at the end of the Production Period, and the Parties will negotiate in good faith the price for such Products for the remaining seven years of the Service Period, which price will be at or less than the lowest price charged to other customers for such or similar parts. Harbinger may designate different delivery locations for service parts at its option. If Harbinger desires to purchase components or parts of Products during the Production Period or Service Period, Supplier shall sell such components or parts to Harbinger at an equitable price reflecting the component or part’s cost less assembly costs.

8. Supply; constraint

Supplier represents it will maintain manufacturing capacity and ability to supply 20% more Products than estimated volume projections or requirements Harbinger provides to Supplier. In the event a particular or additional Lead Time is applicable to achieve the +20%, such Lead Time, if any, shall be specifically set forth in the Harbinger Supply Agreement. If Supplier’s ability to deliver Products is likely to be or is constrained, Supplier will promptly notify Harbinger in writing and use best efforts to immediately resolve the issue. Supplier shall fulfil Harbinger’s POs before fulfilling orders for Supplier’s other customers during the period of any constraint, using Supplier’s actual output and existing stock.

9. Shipping; packing

Supplier will deliver Goods FCA (Incoterms 2020) Harbinger’s designated facility and title and risk of loss transfers to Harbinger per the Incoterms. Supplier will (i) include the PO number, part number, Supplier’s name, and contents on packing slips, bills of ladings, and other related documents; (ii) provide packing slips for all shipments and other related shipping documentation reasonably requested by Harbinger; (iii) sufficiently mark and label each package to allow Harbinger to easily identify the Products and to comply with Harbinger’s shipping and labeling requirements; (iv) for international shipments, heat treat wooden packaging with IPPC stamp applied; (v) properly pack, load, secure, unload, and ship Products as applicable in a manner to ensure the Goods are delivered in undamaged condition, in compliance with all applicable laws, industry standards, and any Harbinger shipping instructions; and (vi) provide Harbinger and its applicable representatives with sufficient written notice (in addition to providing appropriate labels on Products, containers, and packing) of dangerous or hazardous materials and any special handling instructions before and with the shipment. Supplier, subject to the applicable Incoterms, will insure and cause any carrier engaged by Supplier to insure, the Goods up to their full replacement value during transport until delivery to Harbinger’s facility. Harbinger is not required to pay for Products delivered in excess of its firm quantities and delivery schedules and may return unauthorized shipments to Supplier and debit it for return costs. Premium shipping expenses necessary to meet delivery schedules are Supplier’s responsibility, except to the extent caused by Harbinger if Supplier provides Harbinger written notice within ten days of Harbinger’s action. Harbinger may change or suspend shipping schedules, neither of which entitle Supplier to a modified price.

10. Taxes; customs

Unless an exemption applies, Supplier will separately invoice Harbinger, and Harbinger will pay Supplier, any applicable sales, excise, use tax, value-added, or similar tax directly arising from sale of Products to Harbinger under the Contract, which Supplier is required by law to collect from Harbinger. Supplier will (a) pay all other taxes, customs, duties, and tariffs arising from sale or provision of Products; (b) obtain all licenses, permits, authorizations, clearances, consents, and customs formalities required to import or export Products; and (c) claim preferential duty treatment under applicable trade preference regimes and participate in applicable duty deferral and free trade zone programs. Unless prohibited by law, all trade and export credits and other transferable credits and benefits, and refunds of duties, duty drawbacks, taxes, and fees belong to Harbinger. Supplier will provide Harbinger with: (a) certificates, documents, and information necessary for Harbinger to receive credits, benefits, refunds, exemptions, and other relief from taxes; (b) export licenses and authorizations; and (c) other documents reasonably requested by Harbinger in relation to the above, such as W-9 forms, certificates of origin, and value added in each country. If required by law, Harbinger may deduct or withhold taxes from payments to Supplier. Supplier will notify Harbinger in writing if a Product is subject to import or export laws, regulations, and restrictions, and of any changes, including to local, state, FTA, or USMCA content, which are subject to Harbinger’s prior written approval. Supplier will certify its compliance with the above in writing upon Harbinger’s request.

11. Price

Harbinger will pay Supplier the purchase price specified in the Contract, including the PO, which price: (a) is the total amount due to Supplier for the Products and Supplier’s performance; (b) except to the extent specifically agreed to in writing by Harbinger, is fixed and not subject to any increase (including increase in materials, components, exchange rates, labor, production, or otherwise); (c) includes all customs, duties, taxes (subject to Section 9), packaging, transportation and shipping (subject to the Incoterms), handling, storage, labeling, crating, insurance, and all other expenses, costs, fees, and charges; and (d) is the total amount to be invoiced to Harbinger for Products and no additional amount may be charged without Harbinger’s prior written approval; and which (e) Supplier shall ensure remains competitive with the price for similar Products available to Harbinger from other sources and does not exceed the price charged to any other customer of Supplier for such Products. Any charges for non-returnable packaging will be deducted from the price if Harbinger elects to use returnable packaging. Supplier acknowledges that Value Analysis/Value Engineering is regularly expected of Supplier and Supplier shall implement its own cost savings, productivity programs, and initiatives to reduce Supplier’s costs and shall participate in any cost savings and productivity programs initiated by Harbinger.

12. Invoices

Each invoice from Supplier must (i) be itemized, in English, and US Dollars; (ii) include the PO and bill of lading numbers, quantity, and description of Products in the shipment, number of cartons/containers, price, net weights, country of origin, Supplier’s name and address, delivery location, and any other information reasonably requested by Harbinger or necessary for identification of Products; (c) be accompanied by the bill of lading; and (d) be issued after delivery of the Products to Harbinger. Harbinger’s payment will be made by bank or wire transfer Net 60 days after receipt of a conforming invoice and is deemed made when the fund transfer is initiated. Harbinger may withhold charges disputed in good faith and setoff and recoup against its accounts payable to Supplier any amounts Supplier or its affiliate is liable to Harbinger for under any contract with Supplier or its affiliate.

13. General

Supplier represents and warrants that: (i) it has authority and ability to enter into and perform its obligations under the Contract and that it has and shall maintain any necessary licenses, consents, and permits for its performance; (ii) it is qualified to do business and is in good standing in every jurisdiction required for the Contract; (iii) in performing the Contract, Supplier utilizes methods and substances that are not harmful to the environment; (iv) it will not (a) utilize slave, child, prisoner, or another form of forced, illegal, or involuntary labor; (b) engage in abusive worker treatment or corrupt business practices; or (c) employ or subcontract any Specially Designated National, as defined from time to time by the Office of Foreign Assets Control of the United States Department of the Treasury; and (v) as of the date of each PO and Release, it is (a) not insolvent and is paying all debts as they become due; and (b) all financial information provided by it is accurate. Warranties in the Contract are in addition to any warranties express or implied by law or equity or otherwise made by Supplier. No warranty is modified, waived, or discharged by delivery, acceptance, approval, testing, payment, inspection or failure to inspect, or designation of a directed supplier. Supplier will provide prompt written notice to Harbinger of any impending or threatened insolvency of Supplier.

14. Warranties

Supplier warrants to Harbinger that, during the Warranty Period, the Products shall (a) conform to and operate in accordance with the Specifications, drawings, PPAP, designs, samples, and all other requirements specified or approved by Harbinger or incorporated in the Contract; (b) be free from defects in design (except to the extent designed by Harbinger without Supplier’s input), material, and workmanship; (c) be new at the time of delivery, merchantable, and fit for the purpose for which they are intended and safe for uses consistent with the Specifications and that are reasonably foreseeable; (d) be free and clear of liens, claims, and other encumbrances, and conveyed to Harbinger with good title; (e) comply with all applicable US Federal Motor Vehicle Safety Standards, industry standards, and laws, including in countries to which Harbinger Products are exported or sold; (f) not infringe or misappropriate any third party’s Intellectual Property Rights, either on its own or in combination with any reasonably foreseeable goods, services, and software; and (g) be free of malware, viruses, and malicious codes. Supplier warrants that it will perform services (a) in a professional and workmanlike manner, using qualified personnel with appropriate skill, training, experience, and qualifications to meet Supplier’s obligations under the Contract; (b) in accordance with all applicable industry standards and laws; and (c) not infringe or misappropriate any third party’s Intellectual Property Rights.

15. Anti-corruption

Supplier shall comply with all applicable anti-corruption and anti-bribery laws, including the U.S. Foreign Corrupt Practices Act and the UK Bribery Act. Supplier warrants and represents that no amount payable hereunder has been or will be used for any purpose where a reasonable belief exists that an anti-corruption or anti-bribery law would be violated or that Supplier or Harbinger would be exposed to liability. Supplier warrants and represents that none of its principals, officers, directors, shareholders, employees, or agents have or will perform any act related to this Contract that would present a credible risk of a violation of such laws.

16. Inspections; audits

Supplier will maintain complete and accurate records relating to its performance of the Contract, including records of time spent and materials used in producing the Products. Supplier is responsible for testing and evaluating the Goods before delivery in accordance with standard industry practice and the requirements under Contract. Upon Harbinger’s request, Supplier shall provide the results of such tests and evaluations to Harbinger and permit Harbinger and its representatives to review Supplier’s records pertaining to its compliance with the Contract. Harbinger has the right, but not the obligation, to directly, or via a third-party, inspect and test the Goods, work in progress, tooling, materials, and workmanship. Harbinger and its third-party representatives shall have the right at any reasonable time to access Supplier’s and its subcontractors’ facilities to examine all relevant documents, data, and information, and to inspect and reasonably test the Goods, facility, tooling, equipment, production processes, materials, and work in progress to verify Supplier’s compliance with the Contract or to validate its performance or ability to perform the Contract. Inspections will be conducted during normal business hours, upon advance written notice from Harbinger, and Supplier will reasonably cooperate in such inspections.

17. Compliance

Supplier shall provide a complete International Material Data System submission for each non-prototype Product, additional information as may be requested by Harbinger regarding the origin of all materials in each Product, and any other relevant information reasonably requested by Harbinger to comply with applicable laws or to obtain any incentive, credit, or the like. Supplier shall comply with Harbinger’s most current Specifications, Supplier Quality Manual, Supplier Code of Conduct, data protection and information security requirements, and all other applicable policies and requirements of Harbinger, industry standards, regulations, and laws.

18. PPAP

Supplier will comply with all requirements of the industry-standard Production Part Approval Processes (“PPAP”). Level 3 PPAP is required for all Products unless (a) the Products are in production on another automotive vehicle platform and have a prior Level 3 PPAP (100% production tooled and 100% production process), in which case a copy of the part submission warrant is required and Harbinger may request further proof of documentation and data; or (b) the Products are interim (in which case, Level 2 PPAP is required) or prototype, and instead of a Level 3 submission, 100% dimensional inspection of all Products (CMM or using gauges), material certification for each Product, engineering-specified tests required under the Contract, packaging approval, a control plan, and traceability is required from Supplier in accordance with Harbinger’s requirements before each shipment to Harbinger. The foregoing PPAP requirement applies only to the first shipments of new production parts, unless there is a production facility or tooling move, or change of any supplier, design by either Party, manufacturing facility, tooling, or manufacturing process. To the extent there is any conflict between quality requirements under the Terms and requirements or standards incorporated in the Contract, the provisions that require higher quality standards control. Unless otherwise authorized in writing by Harbinger, Products may not be shipped until PPAP approval is granted by Harbinger. Requirements referenced above (such as Level 3 and Level 2 PPAP) are further detailed in Harbinger’s Supplier Quality Requirements documentation, including HBG-QCS-002.

19. Notice; remedial action

Supplier will immediately (i) notify Harbinger in writing if Supplier has reason to believe a delivery date, quantity, quality, or other requirement under the Contract may not be met, or if it becomes aware of any defect, material, component, design, or non-conformity in a Product that may become harmful to persons or property, or of any potential labor dispute threatening its performance of the Contract; and (ii) develop and implement corrective actions in accordance with Harbinger’s quality control policies and standards, including by investigating the problem’s root cause, remedying the cause of the problem, resuming performance in accordance with the Contract, and implementing measures to prevent recurrence of the problem.

20. Non-conforming Products

In addition to all other rights and remedies provided under the Contract, if any Products are defective or non-conforming, Harbinger has the right to, at Harbinger’s option: (i) reject the Products; (ii) retain the Products in whole or in part with an appropriate adjustment in price; (iii) require Supplier to repair or replace the Products within 24 hours of Harbinger’s notice (unless a longer period is agreed to by Harbinger in writing) at Supplier’s expense, including all premium, expedited, and special delivery methods and installation costs; and (iv) require Supplier to implement containment, inspection, sorting, and other quality assurance procedures, at Supplier’s expense. If Supplier fails to timely deliver conforming replacement Products, Harbinger may correct or replace them with similar goods from a third party and recover all costs and expenses relating thereto from Supplier. Supplier acknowledges and agrees Harbinger may determine warranty liability based upon sampling or other quality assessments. Supplier will administer warranty chargebacks for non-conforming or defective Products at no additional cost to Harbinger and in accordance with Harbinger’s instructions.

21. Failure to deliver

In addition to all other rights and remedies provided under the Contract, if Supplier is unable or otherwise fails to supply Products by the agreed delivery date or indicates it will not meet a future delivery date, Harbinger may, at Harbinger’s option: (i) require Supplier, at Supplier’s expense, to deliver Products using premium, expedited, and special delivery methods to meet Harbinger’s delivery schedules and to remedy delays, except to the extent a delay is the result of Harbinger’s negligence and Supplier provides Harbinger written notice of any claim within ten days of Harbinger’s action; and (ii) purchase substitute Products from other suppliers and hold Supplier liable for the difference in price, including shipping and other costs incurred by Harbinger.

22. Other remedies

In addition to all other rights and remedies available to Harbinger under the Contract, at law, and in equity, Harbinger is entitled to recover from Supplier, and Supplier will reimburse Harbinger for all losses, expenses, costs, judgments, fines, penalties, and damages, including reasonable attorneys’ and professionals’ fees, actual or out of pocket costs, incidental, special, and consequential damages and anticipated or lost profits incurred by Harbinger that arise from Supplier’s breach of any warranty, representation, or other obligation of Supplier under the Contract, including amounts in relation to any inspecting, sorting, testing, repairing, or replacing non-conforming Products, production interruptions, service campaigns, recall campaigns, corrective actions, or other voluntary or involuntary actions which Harbinger participates in or suffers in connection thereto. Notwithstanding anything to the contrary, Harbinger has the right to apply at any time to a judicial authority for appropriate equitable or injunctive relief and specific performance.

23. Confidentiality

“Confidential Information” means any confidential or proprietary information or item disclosed by or on behalf of a Party (“Disclosing Party”) to the other Party or its representatives (“Receiving Party”), before or after the Effective Date, that is identified as confidential or should have reasonably been understood to be confidential, including information regarding business, products, marketing, licensing or sales activities, policies, practices, emails, studies, reports, summaries, notes, analyses, strategies, targets, technologies, forecasts, investments, finances, revenue, pricing, costs, profits, software, samples, models, prototypes, hardware, research, designs, drawings, specifications, performance characteristics, source code, object code, personal data and information, know-how, formulas, algorithms, data, techniques, processes, inventions, trade secrets, testing strategies, customer information, third party confidential information, related documentation and other information of a similar nature, and all materials, copies, reproductions, processes, analyses, demonstrations, summaries, and combinations derived from, based on, or using any such information or items. The existence of a Contract between the Parties, identifying information regarding Harbinger, its team members, and its business objectives also constitutes Confidential Information unless otherwise disclosed publicly or approved in writing for public disclosure by Harbinger. It does not include information that (i) is or becomes publicly known at any time other than through the Receiving Party’s disclosure; (ii) is already owned or possessed by the Receiving Party at the time of disclosure or legally obtained by the Receiving Party from sources other than the Disclosing Party without breach of the Contract; (iii) is disclosed to the Receiving Party by a third party, not in violation of any confidentiality obligation to the Disclosing Party; (iv) is specifically identified in writing by the Disclosing Party as non-confidential; or (v) is developed by the Receiving Party independently without use of or reference to the Disclosing Party’s Confidential Information and by persons who have not had access to such information.

24. Use; non-disclosure; ownership

The Receiving Party shall ensure it: (i) holds the other Party’s Confidential Information in secrecy and confidence using the same degree of care it uses to safeguard its own information of a similar nature, and in any event, in a manner no less stringent than a reasonable standard of care, and in compliance with Harbinger’s information and data security policies as disclosed to Supplier from time to time; (ii) uses the other Party’s Confidential Information for no purpose other than performance of the Receiving Party’s obligations under the Contract; (iii) does not disclose, use, exploit, or make available the other Party’s Confidential Information to any person other than in accordance with these Terms and on a need-to-know basis, provided such persons are bound in writing by confidentiality obligations that are applicable to the Confidential Information and are as restrictive as the provisions of this section (or, in the case of accountants and attorneys, are bound by professional confidentiality obligations), in order to permit those persons to assist the Receiving Party in connection with performance of its obligations under the Contract. The Receiving Party shall notify the Disclosing Party in writing of any misuse, misappropriation, or unauthorized disclosure of the other Party’s Confidential Information promptly following knowledge or discovery thereof after due inquiry.

25. Required disclosures

If the Receiving Party is required to disclose the Disclosing Party’s Confidential Information by law or under a valid court or governmental agency order, such disclosure shall not be a breach, provided that, the Receiving Party shall, unless legally prohibited, promptly notify the Disclosing Party to give it an opportunity to protect its interest and cooperate, at the Disclosing Party’s expense, with all reasonable requests of the Disclosing Party in connection therewith.

26. Return; destruction

Upon the Disclosing Party’s written notice, the Receiving Party shall, at the Disclosing Party’s option, either return or destroy Confidential Information in the Receiving Party’s possession or control and provide prompt written certification to the Disclosing Party that all such Confidential Information has been returned or destroyed, in no event later than within 30 days of the Disclosing Party’s notice. The Receiving Party may retain an electronic copy of Confidential Information solely for archival purposes if automatically stored pursuant to such Party’s pre-established archive processes, provided such Confidential Information is not readily accessible and the Receiving Party complies with the confidentiality obligations and use restrictions in these Terms for so long as any such Confidential Information is retained.

27. Confidentiality period; ownership

Each Party’s confidentiality obligations will survive expiration or earlier termination of the Contract and continue for a period of five years thereafter. These Terms prevail in the event of any conflict with a prior non-disclosure or confidentiality agreement between the Parties. Confidential Information remains the Disclosing Party’s property and nothing in the Contract, or any course of conduct between the Parties, grants the Receiving Party any license, right, title, or interest in or to the Confidential Information unless explicitly set forth in the Contract or otherwise agreed in writing by the Parties. The Receiving Party agrees that no license or other rights of the Confidential Information is granted. The Receiving Party acquires no intellectual property license or rights under the Contract except the limited right to review and use Confidential Information to perform its obligations under the Contract. All Confidential Information provided under the Contract by Harbinger is provided “AS-IS” without any warranty, express, implied, or otherwise, except that Harbinger warrants it has the right to disclose Confidential Information to Supplier.

28. Changes by Harbinger

Upon written notice to Supplier, Harbinger may at any time make, or direct Supplier to make, changes to the Products, including the Specifications, or to otherwise change the scope of the work covered by the Contract, including work with respect to such matters such as inspection, testing, or quality control, and Supplier agrees to promptly implement such changes. Any changes shall be deemed to not affect the time for performance or cost under the PO unless Supplier provides Harbinger with written notice of a claim for adjustment to time for performance or cost within ten business days of Harbinger’s notice to Supplier of the change and after auditing such claim, Harbinger determines an adjustment (up or down) is appropriate. Any such claim must be solely and directly the result of the change directed by Harbinger and any notice of such claim is effective only if accompanied by all relevant information sufficient for Harbinger to verify such claim. Supplier shall consider and advise Harbinger of the impact of a design change on the system in which the Products are covered by the PO are used.

29. Changes by Supplier

Without Harbinger’s prior written approval in a PO amendment, Supplier shall not at any time modify the Products or make any changes to the Contract and PO, including: their Specifications, serviceability, any third party supplier, the facility from where Supplier or its suppliers operate (including the production, manufacture, assembly, and shipping of Products), the price of Products, the nature, type, or quality of services, raw materials, and goods used by Supplier or its suppliers in connection with the PO, the fit, form, function, appearance, and performance of any Products, or the production method used in the production or provision of Products.

30. Intellectual Property

“Intellectual Property” means all patentable subject matter, patents, patent applications, inventions, utility models, industrial designs, trademarks, trade names, trade dress, copyrightable subject matter, copyrights, moral rights, know-how, software code, data, procedures, methods of manufacture, writings, icons, layouts, work of authorship, original artwork, original practice, derivative works, and any other subject matter, material, or information that is considered proprietary or confidential, or that otherwise qualifies for protection under any law providing or creating Intellectual Property Rights, including the Uniform Trade Secrets Act. “Intellectual Property Rights” means any intellectual property rights or similar proprietary rights in any jurisdiction, whether registered or unregistered, including rights in and to: (a) trade names, pending trademark applications, trademarks, trade dress, service marks, certification marks, logos, domain names, tradenames, fictional business names, and uniform resource locators, together with all translations, adaptations, derivations, and combinations, and other intellectual property rights, and all goodwill associated with the foregoing; (b) issued patents, pending patent applications, and divisions, continuations, continuations-in-part, reissues, renewals, provisionals, continuing patent applications, reexaminations, and extensions thereof, any counterparts claiming priority therefrom, utility models, patents of importation/confirmation, certificates of invention and registration, and like rights, inventions, invention disclosures, discoveries, and improvements, whether or not patentable; (c) works of authorship, copyrightable works including software, and all copyrights including all applications, registrations, and renewals thereof, and all rights corresponding thereto; (d) trade secrets, proprietary business, technical and know-how information, non-public information, and confidential information, and rights to limit use or disclosure thereof by any person; (e) mask works; and (f) moral rights.

31. Background IP

Each Party is, and shall remain, the sole and exclusive owner of, and retain all right, title, and interest in and to all Intellectual Property acquired, developed, owned, or created by a Party before the Effective Date or developed in a strictly independent and separate manner from the Contract or from the development of Products for Harbinger (“Background IP”). Supplier is the sole and exclusive owner of all right, title, and interest in and to Supplier’s Background IP. Supplier hereby grants to Harbinger a non-exclusive, sublicensable, transferable, worldwide, perpetual, irrevocable, fully paid-up, and royalty-free license to all Supplier Background IP necessary or useful to import, make, have made, use, have used, distribute, display, modify, perform, repair, remanufacture, rebuild, offer to sell, sell, and import the Products.

32. Foreground IP

Except for Supplier Background IP (which is and will continue to be owned solely and exclusively by Supplier), Harbinger is the sole and exclusive owner, and Supplier hereby irrevocably assigns to Harbinger, all right, title, and interest in all Intellectual Property and Intellectual Property Rights that are produced, acquired, developed, owned, or created by Supplier, whether or not jointly with Harbinger, in connection to the Contract, or that incorporate Harbinger’s Confidential Information or chassis architecture (“Foreground IP”). Supplier agrees all Foreground IP constitutes copyrightable works and shall be considered “works made for hire” for Harbinger, except to the extent that the works do not qualify as “works made for hire,” in which case Supplier hereby assigns to Harbinger all right, title, and interest in all copyrights. Supplier shall promptly disclose all Foreground IP to Harbinger and take any actions necessary to assist Harbinger to patent, copyright, assign, prosecute, or otherwise perfect and protect Harbinger’s rights as to any Foreground IP upon Harbinger’s reasonable request.

33. Third party IP; open source

Supplier may not incorporate any third party’s intellectual property or proprietary material into any Product or work product delivered to Harbinger, unless Supplier has obtained for Harbinger a perpetual, worldwide, non-exclusive, royalty-free, fully transferable, fully paid-up license, with right to sublicense, permitting Harbinger to use, sublicense, and distribute the third party’s intellectual property or proprietary material in the conduct of Harbinger’s normal business operations. In addition, Supplier may not incorporate any open source code without Harbinger’s express, prior written consent in the supply agreement for the Product.

34. Equipment

Supplier shall ensure that all equipment, tooling, and other items used in its performance of the Contract are in good working order, suitable for the purposes for which they are used, and conform to all requirements of the Contract. Supplier, at its expense, shall furnish, keep in good condition, and replace when necessary all machinery, equipment, tools, jigs, dies, gauges, fixtures, molds, patterns, containers and other items necessary for the production of the Products, unless otherwise agreed in writing by Harbinger in the supply agreement and PO.

35. Harbinger’s Property

Harbinger does not transfer to Supplier any Intellectual Property Right of Harbinger in or to any information, documents, or property that Harbinger makes available to Supplier under the Contract, other than the right to use Harbinger’s Intellectual Property Rights to produce and supply Products for Harbinger. Excluding Supplier’s Background IP, all right, title, and interest to all supplies, tooling, fixtures, materials, gauges, jigs, patterns, equipment, castings, cavity dies, designs, drawings, specifications, spare parts, trial parts, ancillary products, manufacturing processes, technical information, molds, and other items that are owned by Harbinger or have been furnished or paid in full by Harbinger to Supplier for use in manufacturing Products or for which Supplier is reimbursed by Harbinger, are the sole and exclusive property of Harbinger (“Harbinger’s Property”). Supplier shall not purchase on account of or charge Harbinger for any Harbinger’s Property except as authorized in a PO from Harbinger. Title to Harbinger’s Property that is not already owned by Harbinger shall transfer to Harbinger upon Harbinger’s payment in full for such property.
Supplier will: (1) properly house and maintain Harbinger’s Property, at Supplier’s expense, in good condition and repair, normal wear and tear excepted, on the Supplier’s premises; (2) hold Harbinger’s Property on a bailment basis until transferred to Harbinger; (3) clearly mark and affix appropriate asset identification tags (including any tags directed by Harbinger) on Harbinger’s Property identifying it as Harbinger’s Property and provide photographic verification to Harbinger before reimbursement to Supplier of any applicable amount or upon Harbinger’s request; (4) not use Harbinger’s Property for any purpose other than
performance under the Contract; (5) refrain from comingling Harbinger’s Property with Supplier’s or a third party’s property; (6) bear the risk of loss and damage and adequately insure Harbinger’s Property for its full replacement value at Supplier’s cost, with loss payable to Harbinger, at all times while Harbinger’s Property is in Supplier’s possession; and (7) not move Harbinger’s Property to another location whether owned by Supplier or a third party, without Harbinger’s prior written consent, other than for maintenance or storage. All replacement parts, additions, accessories, and improvements to Harbinger’s Property shall become part of Harbinger’s Property. Harbinger has the right to enter Supplier’s premises at reasonable times to inspect Harbinger’s Property and related records. Supplier will provide Harbinger written notice of unusual wear of Harbinger’s Property and notify Harbinger in advance of the Lead Time required to replace such Harbinger’s Property if the Harbinger’s Property is likely to wear out before such Lead Time.
If Supplier is responsible for acquiring or fabricating Harbinger’s Property, Supplier shall ensure that Harbinger’s Property will comply with all specifications and be capable of producing Products in accordance with the Contract, including meeting volume requirements or estimates provided to Supplier during the life of the Contract and satisfying the requirements for service parts. Supplier will provide progress reports upon Harbinger’s request and promptly notify Harbinger in writing if it believes Harbinger’s Property may not be ready for operation or use by the completion date on the PO. The foregoing is in addition to Supplier’s other obligations and Harbinger’s other rights and remedies under the Contract, at law, and in equity.
Supplier hereby waives and releases, and agrees not to file, assert, prosecute, suffer, or permit any statutory, equitable, or other liens, including any molder liens, tool liens, builder liens, construction liens, and the like, that Supplier has or may have on or in connection to Harbinger’s Property, including for all work, designing, manufacturing, improving, maintaining, servicing, using, assembling, fabricating, or developing Harbinger’s Property. Supplier will assign to Harbinger all claims Supplier has against third parties regarding Harbinger’s Property. Supplier assumes all risk of death or injury to persons or damage to property from use of Harbinger’s Property. Supplier will also assign to Harbinger all contract rights or claims Supplier has an interest in with regard to Harbinger’s Property and execute or authorize Harbinger to file financing statements, or similar documents, with the appropriate filing authority to give notice of Harbinger’s ownership interest in Harbinger’s Property. Failure to file a financing statement will not alter or amend Harbinger’s ownership rights to Harbinger’s Property. Upon Harbinger’s request, Supplier will provide a written inventory of Harbinger’s Property to Harbinger. If it becomes necessary, as determined by Harbinger or Supplier, to replace any of Harbinger’s Property due to normal use by Supplier, or otherwise, the replacement of Harbinger’s Property will be at Supplier’s sole expense and said replacement Harbinger’s Property will remain Harbinger’ sole property.
Harbinger does not guarantee the accuracy of Harbinger’s Property or the availability or suitability of any supplies or materials furnished by it. Supplier assumes sole responsibility for inspecting, testing, and approving all Harbinger’s Property or other materials supplied by Harbinger before any use by Supplier. Supplier will comply with its obligations under the Contract to release Harbinger’s Property notwithstanding any offsetting claim that it may have against Harbinger. Supplier acknowledges and agrees that (a) Harbinger is bailing Harbinger’s Property to Supplier for Supplier’s benefit; (b) Supplier has inspected Harbinger’s Property and is satisfied that Harbinger’s Property is suitable and fit for its purposes, and (c) HARBINGER HAS NOT MADE AND DOES NOT MAKE ANY WARRANTY OR REPRESENTATION WHATSOEVER, EITHER EXPRESS OR IMPLIED, AS TO THE FITNESS, CONDITION, MERCHANTABILITY, DESIGN, OR OPERATION OF HARBINGER’S PROPERTY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE. Harbinger will not be liable to Supplier for any loss, damage, injury, or expense of any kind or nature caused directly or indirectly by Harbinger’s Property, including its use or maintenance, or its repair, service, or adjustment, or by interruption of service or for any loss of business whatsoever or howsoever caused, including any anticipatory damages, loss of profits, or any other indirect, special, or consequential damages.
Harbinger has the right to the sole, unencumbered, unqualified, and absolute possession of Harbinger’s Property at any time elected by Harbinger. Supplier will immediately release Harbinger’s Property to Harbinger upon Harbinger’s request, and Harbinger may retake immediate possession of Harbinger’s Property at any time with or without cause and without payment of any kind unless otherwise provided in
the Contract. Supplier will release the requested Harbinger’s Property to Harbinger FCA Harbinger’s designated facility (Incoterms 2020), properly packed and marked in accordance with the requirements of Harbinger and its carrier. Supplier hereby grants Harbinger an unconditional right of entry to inspect and remove Harbinger’s Property from the premises where Harbinger’s Property is located without liability in trespass for such entry. Any failure or threatened failure by Supplier to perform its obligations under this Section 35 under the Contract for any reason whatsoever entitles Harbinger to institute and prosecute proceedings in a court of competent jurisdiction to obtain temporary or permanent injunctive or other equitable relief to enforce any provision hereof without the necessity of posting bond or proof of action, injury, or damage. The foregoing is in addition to Harbinger’s other rights and remedies in the Contract, at law, or in equity and in addition to Supplier’s other obligations.

36. Indemnification

Supplier will defend, indemnify, and hold harmless Harbinger and its affiliates, subsidiaries, successors or assigns, and each of their respective employees, customers, dealers, directors, officers, shareholders, contractors, representatives, invitees, and agents (collectively, “Indemnitees”) from and against all losses, injuries, damages, liabilities, claims, actions, judgments, penalties, fines, costs, and expenses, including reasonable attorneys’ and professional fees, incurred by Indemnitees (collectively, “Losses”), regardless of whether under tort, contract, strict liability, or other legal theories, that arise from or relate to: (i) Supplier’s noncompliance or breach of any obligation, representation, or warranty of Supplier under the Contract; (ii) any service campaign, product recall campaign, corrective action, or other voluntary or involuntary action Harbinger participates in as to the Products; (iii) any infringement or misappropriation of any Intellectual Property Right relating to a Product or portion thereof; or (iv) any product liability claim or personal injury claim, including death or injury, or damage to property, caused by or attributable to the performance of Supplier, its employees, agents, invitees, or subcontractors.

37. Indemnification procedure

Harbinger will promptly notify Supplier in writing after Harbinger receives notice of a claim that calls for indemnification by Supplier under the Contract and Supplier will assume defense of the claim through counsel approved or selected by Harbinger. Supplier shall obtain Harbinger’s written authorization before settlement of the claim if settlement requires action by Harbinger or could adversely affect Harbinger. Alternatively, Harbinger may elect to undertake defense of the claim to the extent asserted against Harbinger and Supplier shall reimburse Harbinger on a monthly basis for all expenses, attorneys’ fees, and costs incurred by Harbinger, provided that Harbinger shall not settle such claim without Supplier’s prior written consent, which consent will not be unreasonably withheld, conditioned, or delayed.

38. Infringement

If a Product becomes or is likely to become the subject of a claim of infringement, misappropriation, or other violation of any Intellectual Property Right, Supplier will, at its expense and at Harbinger’s option, either (i) secure the right and license to permit Supplier to continue supplying Products to Harbinger and allow Harbinger to continue to use Products; (ii) modify or replace the Products to make it non-infringing, provided that the modified Products meet the Specifications and all requirements under the Contract; and/or (iii) remove the alleged infringing Product and refund the price paid by Harbinger to Supplier.

39. Performance

If Supplier has any delivery or operational issues, Harbinger shall have the right to designate a representative to be present in Supplier’s facility to observe its operations. If Harbinger provides financial or other accommodations, including providing a designated representative, Supplier shall reimburse Harbinger for all costs, expenses, and reasonable attorneys’ and other professionals’ fees incurred by Harbinger in connection with such accommodations and shall grant a right of access to Harbinger to use Supplier’s premises, equipment, and other property necessary for production of Products, and a lien to secure the access right, under an access and security agreement.

40. Default

Harbinger may immediately, or at such other time as set forth in its termination notice, terminate the Contract, in whole or in part, in the event of any default by Supplier, including if: (i) except to the extent due to a Force Majeure under Section 49, Supplier fails to timely perform, breaches, or threatens to breach any obligation, representation, or warranty of Supplier under the Contract; (ii) Supplier fails, upon Harbinger’s request, to provide Harbinger with adequate and reasonable assurance of Supplier’s ability to timely perform any obligation, representation, or warranty of Supplier under the Contract; (iii) Supplier is unable to pay its debts as they become due or executes an assignment for the benefit of Supplier’s creditors; or (iv) Supplier becomes a debtor in a bankruptcy, insolvency, receivership, or similar proceeding commenced by a third party or by Supplier.

41. Change of control

Harbinger may immediately or at such other time as set forth in its termination notice, terminate the Contract for a change of control of Supplier if Supplier enters or offers to enter into a transaction which includes a sale of a substantial portion of its assets used for production or supply of Products, or that would result in a change in control of Supplier.

42. Convenience

Harbinger may immediately or at such other time as set forth in its termination notice, terminate the Contract, in whole or in part, at any time and for any reason by giving written notice to Supplier.

43. Termination obligations

Upon the effective date of any termination for whatever reason, unless otherwise directed by Harbinger in writing, Supplier will (i) immediately terminate all work under the Contract; (ii) transfer title and deliver to Harbinger the finished Products, work in process, and raw materials and components Supplier produced or acquired in accordance with the Contract, subject to any payment by Harbinger in accordance with the Contract; and (iii) deliver to Harbinger any remaining property of Harbinger in Supplier’s possession.
a. Upon termination for default per Section 40, Supplier shall not be entitled to any further payments by Harbinger except the PO price for finished and conforming Products already delivered in accordance with the Contract.
b. Upon termination for change of control per Section 41 or convenience per Section 42, Harbinger shall pay Supplier (i) the PO price for all finished and conforming Products already delivered under the Contract; and (ii) Supplier’s reasonable and actual cost of usable and merchantable work in process and raw materials/components transferred to Harbinger in accordance with Section 44. Within 30 days of termination, Supplier will furnish its termination claim to Harbinger in writing, together with all supporting data. All other claims are waived.
Harbinger’s obligation to Supplier upon termination shall not exceed the obligation Harbinger would have had to Supplier in the absence of termination. Except as set forth in this Section 43, Harbinger shall not be liable for and shall not be required to make payments to Supplier, directly or on account of claims by Supplier’s subcontractors, for any other alleged losses or costs, including for any anticipated or lost profits, unabsorbed overhead, development or engineering costs, unamortized depreciation, exit charges, warehousing, investments, facilities and equipment, capital expenditures, labor costs, or otherwise.

44. Transition

Upon expiration or earlier termination of the Contract for whatever reason, or during the period of any default by Supplier, Supplier will take all actions reasonably necessary to ensure there is no interruption in supply of Products to Harbinger, including: (a) providing a sufficient bank of Goods covered by the PO to ensure orderly transition to any alternative supplier chosen by Harbinger; (b) provide to Harbinger all Harbinger’s Property in good condition, reasonable wear and tear excepted; (c) assign to Harbinger supply contracts or POs for raw material or components relating to the PO; (d) sell to Harbinger tooling, at fair market value, and Goods inventory, at the PO price, to the extent not already paid by Harbinger; and (e) all other actions reasonably requested by Harbinger to accomplish transition from Supplier to an alternative supplier or to a Harbinger-owned facility.

45. No termination

As Harbinger’s commitments to its customers are made in reliance of Supplier’s commitments under the Contract, Supplier has no right to terminate the Contract.

46. Insurance

Supplier will maintain customary and reasonable insurance, naming Harbinger as an additional insured, covering general liability, public liability, product liability, product recall, completed operations, contractor’s liability, automobile liability, worker’s compensation, and employer’s liability, to adequately protect Harbinger against damages, liabilities, claims, losses, and expenses. Supplier will also insure for replacement value all machinery, equipment, tools, and other items used in Supplier’s performance of the Contract. Supplier will provide certificates of insurance upon Harbinger’s request.

47. Limitation of Liability

IN NO EVENT WILL HARBINGER BE LIABLE TO SUPPLIER FOR ANTICIPATED OR LOST PROFITS, INTEREST, OR PENALTIES, OR FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, STATUTORY, OR PUNITIVE DAMAGES IN CONNECTION WITH THE CONTRACT.

48. Waiver

A waiver by Harbinger of any right or remedy will not affect Harbinger’s rights or remedies subsequently arising under the same or similar clauses. Harbinger’s delay or failure to exercise any right or remedy shall not constitute a waiver of any of Harbinger’s rights or Supplier’s obligations under the Contract, or a waiver of Harbinger’s right to declare an immediate or a subsequent default. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

49. Force majeure

Any delay or failure of either Party to perform its obligations will be excused to the extent it is caused by an extraordinary, unforeseeable, and unavoidable event beyond the nonperforming Party’s control and without its fault or negligence, and which could not be prevented or reasonably circumvented through use of alternate sources, workaround plans, or other means, such as acts of God, floods, fires, earthquakes, riots, wars, sabotage, explosions, natural disasters, or government orders. The nonperforming Party will provide written notice of the delay and its anticipated duration to the other Party within one business day of such event. The nonperforming Party shall use best efforts to minimize the effects of the force majeure and to resume performance as soon as possible. During any delay or failure to perform by Supplier, Harbinger may, at its option, purchase Products from other sources and reduce its schedules to Supplier by such quantities, without liability, and may require Supplier to deliver to Harbinger all finished Products, work in process, and parts and materials produced or acquired for work under the Contract, in accordance with the terms of the Contract. If Supplier’s delay lasts longer than thirty days, or Supplier does not provide adequate assurance that the delay will cease within such time, Harbinger may immediately cancel the Contract, in whole or in part, without liability. The following will not excuse Supplier’s performance under theories of force majeure, commercial impracticability, or otherwise: (i) economic hardship or changes in cost or availability of materials, components, or services based on market conditions; and (ii) contract disputes, supplier actions, strikes, or labor disruptions. Harbinger may cancel the Contract, in whole or in part, upon written notice to Supplier at any time before delivery or performance if Harbinger’s business is interrupted by a force majeure event.

50. Assignment; subcontractor

Supplier may not, in whole or in part, assign, subcontract, delegate, or otherwise transfer the Contract or the performance of any obligation of Supplier without Harbinger’s prior written consent, and any assignment, delegation, or transfer in violation of this clause is void ab initio. Harbinger’s consent will not be deemed to waive Harbinger’s right to recoupment from Supplier and its assigns for any claims or damages arising out of the Contract. Harbinger may designate a third party that Supplier is required to use as a supplier of certain parts or services. Harbinger’s consent or designation will not release Supplier from, or limit any of Supplier’s obligations under the Contract. Supplier warrants and guarantees that its subcontractors’ and assigns’ performance will meet all applicable requirements of Supplier under the Contract. Harbinger may transfer the Contract in whole or in part to any affiliate or person acquiring all or substantially all of Harbinger’s assets. The Contract is binding upon and will inure to the benefit of the Parties and their respective successors and assigns.

51. Independent contractor

The Parties are independent contracting parties. The Contract will not be construed as creating any employment, agency, partnership, or joint venture relationship, or as permitting a Party to incur an obligation on behalf of the other Party, or as making a Party the agent or representative of the other Party for any purpose.

52. No third-party beneficiaries

The Contract is for the sole benefit of the Parties and their successors and permitted assigns, and nothing herein is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy under or by reason of the Contract.

53. Electronic communications

Supplier shall comply with the methods of electronic communication specified by Harbinger, including for transmission of POs and Releases, electronic funds transfer, signature, and other communications.

54. Claims

Supplier’s failure to provide a notice, claim, or other communication to Harbinger in the time and manner specified in the Contract constitutes a waiver by Supplier of all rights and remedies that otherwise would have been available to it upon making such notice, claim, or communication. In addition to any other restrictions in the Contract, any action by Supplier under the Contract must be commenced within one year of the breach or event giving rise to Supplier’s claim, regardless of Supplier’s lack of knowledge of it.

55. Interpretation

The words “include,” “includes”, and “including” are not limiting and will be deemed to be followed by the words “without limitation”. The word “or” is not exclusive and the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to these Terms as a whole unless the context requires otherwise. Unless the context requires otherwise, references to an agreement or other document means such agreement or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof. The Contract will be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument.

56. Advertising; publicity; non-disparagement

Supplier may not discuss, disclose, advertise, publicly display, market, or otherwise use or make known to third parties the existence of the Contract or any information relating to it, or Harbinger’s name, trademarks, servicemarks, or logos, without Harbinger’s prior written consent. Supplier may not make any disparaging or derogatory statement with respect to Harbinger or its representatives or Harbinger Products during the term of the Contract and for five years thereafter.

57. Governing law; disputes

The Contract is governed by the laws of the State of California, without regard to principles of conflicts of laws. The U.N. Convention on Contracts for the International Sale of Goods is excluded. As a condition precedent to Supplier’s filing of any action, the Parties agree to (i) enter into informal mediation with each Party’s leadership in good faith for a minimum of 60 days to resolve the dispute; and should such informal mediation not resolve the dispute, (ii) thereafter enter into formal mediation with a neutral third party mediator (at the Parties’ shared cost) for a minimum of 60 days. Supplier may not commence any action until such full periods of the mediations (or longer periods if agreed by the Parties) have passed without resolution, the mediations being subject to the rules and locality detailed below. Any action between the Parties arising under the Contract shall, at Harbinger’s election, be resolved by a single arbitrator in binding arbitration under the Commercial Arbitration Rules and Mediation Procedures of the American Arbitration Association. The arbitration shall take place in Orange County, California, permit discovery as deemed reasonable by the arbitrator, and be conducted in English. Arbitrations are confidential and Supplier may not disclose the existence of the arbitration or the nature of the action. The arbitrator’s award shall not be entered as a judgment in a court of law, unless Supplier fails to voluntarily satisfy the arbitration award within 60 days after it has been rendered. If Harbinger does not elect arbitration, then Supplier consents to the exclusive jurisdiction of the appropriate state court in Orange County, California, or if jurisdiction exists, in the federal court in the Central District of California, for any legal or equitable action arising out of the Contract. Notwithstanding the foregoing, any action by Harbinger against Supplier may be brought by Harbinger in any court with jurisdiction over Supplier. Supplier waives the right to a jury and to any objections to venue in such courts. SUPPLIER AGREES THAT ANY CLAIM OR CAUSE OF ACTION WILL BE ADJUDICATED ON AN INDIVIDUAL BASIS AND WAIVES THE RIGHT TO PARTICIPATE IN A CLASS, COLLECTIVE, OR OTHER JOINT ACTION WITH RESPECT TO ANY CLAIM OR CAUSE OF ACTION. Harbinger shall be entitled to reimbursement of its attorneys’ fees, costs, and expenses from Supplier in any proceeding in which Harbinger is the prevailing party.

58. Notices

Notices, claims, and communications to Harbinger under the Contract shall be made in writing and sent by certified or registered mail, return receipt requested, and proper postage prepaid to the below address and are effective upon Harbinger’s receipt in the form set forth in this section:

If to Harbinger:
Attn: General Counsel
Harbinger Motors Inc.
12821 Knott St.
Garden Grove, CA 92841

With a copy to:
VP of Supply Chain
Harbinger Motors Inc.
12821 Knott St.
Garden Grove, CA 92841

59. Rights; obligations

All rights, remedies, and warranties granted to Harbinger under the Contract are cumulative and in addition to all other rights, remedies, and warranties provided at law or in equity, except that Harbinger will be entitled only to a single full recovery.

60. Products and Goods

“Products” means Goods and Services. “Goods” means all products identified in a supply agreement or PO, and all products not so identified, but which are offered or sold by Supplier to Harbinger. To the extent Goods include software, references to sale refers to a license of such Goods consistent with the Contract. “Services” means services offered by Supplier related to development, production, or supply of Harbinger Products and any other services specified by Harbinger in the Contract. “Harbinger Product” means any product manufactured by or on behalf of Harbinger, including vehicles, subassemblies, and components.

61. Specifications

“Specifications” means the samples, drawings, CAD data, bills of materials, spec sheets, and other descriptions and specifications provided by Supplier and approved or relied upon by Harbinger, or that are provided by Harbinger.

62. Lead Time

“Lead Time” means the minimum time expressly agreed upon in a written agreement signed by both Parties that an order should be placed so that the supplier of the Product may deliver by the desired delivery date, or the shortest amount of time required by a typical supplier in the industry to manufacture the Products that are the subject of the order if shorter.

63. Warranty Period

“Warranty Period” means the time period beginning on the day of delivery of each Product to Harbinger and continuing until the later of (a) the warranty period under applicable law; (b) the period offered by Harbinger or its customers or distributors to end users; or (c) 5 years or 60,000 miles, whichever is later, from the date of the end user’s purchase of the Harbinger Product into which the Product is incorporated.

64. Survival

The Contract provisions which by their nature should apply beyond the Contract’s expiration or termination will remain in force after such termination or expiration, including: Section 14 (Warranties), Section 36 (Indemnification), Section 31 and 32 (Intellectual Property), Section 35 (Harbinger’s Property), Section 23 (Confidentiality), Section 40 (Default and remedies), Section 7 (Service and Replacement Parts), Section 57 (Governing law; disputes), Section 16 (Inspections; audits), Section 17 (Compliance), Section 58 (Notices), and this Section 64.

65. Battle of the forms

The battle of the forms under Section 2-207 of the Uniform Commercial Code will not apply to these Terms or to any invoice or other documentation from Supplier relating to these Terms.

66. Modification

These Terms may be amended by Harbinger from time to time and posted on www.harbingermotors.com or available upon request. The modified Terms are effective the day of posting, without notice, and Supplier is responsible for checking the website for amendments. No other modification of the Terms is effective and binding on Harbinger.

67. Severability

If any provision of the Contract is invalid, illegal, or unenforceable under applicable law, such provision will be reformed or deleted to the extent needed to comply with applicable law and achieve the same business purpose, and the remaining Contract provisions will remain in full force and effect.