General Terms and Conditions for the Purchase of Goods and Services

1. Scope.

(a) These General Terms and Conditions for the Purchase of Goods and Services (these “Terms”) apply to all transactions conducted by Harbinger Motors Inc. (f/k/a Electron Transport Inc.) and its affiliates (“Harbinger”), as the purchaser, from the seller or service provider (“Supplier”) of the goods (“Goods”) and services (“Services”) specified in any purchase order(s) entered by the Parties (“Purchase Order”), and are expressly incorporated into any such Purchase Order. The parties do not intend for these Terms to be signed, but instead for these Terms to be accepted by performance of Supplier, including as evidenced by commencement of work or continuation of performance under a Purchase Order or by other acknowledgement of acceptance by Supplier.

(b) The Purchase Order and these Terms, together with any other documents specifically incorporated in the Purchase Order or separately agreed to in writing, such as specifications, drawings, or the packaging, shipping or quality requirements of Harbinger (collectively, this “Agreement”), comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Supplier’s general or special terms and conditions of sale regardless of whether or when Supplier has submitted its sales confirmation or such terms. Any additional or different terms proposed by Supplier, whether in Supplier’s quotation, acknowledgement, invoice or otherwise, are expressly rejected and objected to by Harbinger, and will not become part of the Purchase Order or this Agreement, unless expressly accepted in a writing signed by Harbinger. This Agreement expressly limits Supplier’s acceptance to the terms of this Agreement. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods and Services or other matters covered herein, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.

2. Delivery, Shipment, and Inspection of Goods.

(a) Place and Manner of Delivery of Goods. Supplier shall deliver the Goods in the quantities and on the date(s) specified in the Purchase Order (the “Delivery Date”) to the address specified in the Purchase Order (the “Delivery Point”), during Harbinger’s normal business hours, or as otherwise instructed in writing by Harbinger. If no delivery date is specified, Supplier shall deliver the Goods as soon as reasonably possible following receipt of the Purchase Order. If Supplier fails to deliver the Goods in full on the Delivery Date, Harbinger may terminate this Agreement immediately by providing written notice to Supplier and Supplier shall indemnify Harbinger against any losses, claims, damages, costs and expenses directly attributable to Supplier’s failure to deliver the Goods on the Delivery Date.

(b) Time is of the Essence. Supplier acknowledges that time is of the essence with respect to Supplier’s obligations hereunder and the timely delivery of the Goods and Services, including all performance dates, timetables, project milestones and other requirements in this Agreement. If, for any reason, Supplier finds it will be hard to meet the Delivery Date, it shall promptly provide written notice to Harbinger stating such circumstance and the expected duration thereof, and the parties shall work in good faith to reach a resolution.

(c) Packing and Shipping. Supplier shall properly pack and ship all Goods in accordance with Harbinger’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered on time and in undamaged condition. Supplier shall properly mark each package with a clear label or tag and shall promptly forward a packaging slip and the original bill of lading or other shipping receipt for each shipment in accordance with Harbinger’s instructions. The marks/labelling on each package shall be sufficient to enable Harbinger to easily identify the Goods purchased. Notwithstanding Harbinger’s instructions, Supplier shall be responsible for ensuring that all packing, shipping materials, labelling and marking of the Goods shall meet the requirements of all applicable laws, rule and regulations of the jurisdictions of origin, destination, and intermediary transit. Supplier must provide Harbinger prior written notice if it requires Harbinger to return any packaging material, and any return of such packaging material shall be made at Supplier’s risk of loss and expense.

(d) Quantity. If Supplier delivers more or less than the quantity of Goods ordered, Harbinger may reject all or any excess Goods. Any such rejected Goods shall be temporarily held, disposed of and/or returned to Supplier at Supplier’s sole risk and expense. If Harbinger does not reject the Goods and instead accepts the delivery of Goods at the increased or reduced quantity, the Price for the Goods shall be adjusted on a pro-rata basis.

(e) Shipping Terms. Delivery shall be made in accordance with the terms on the face of the Purchase Order or, absent such term, FCA Delivery Point (Incoterms 2020). The Purchase Order number must appear on all shipping documents, shipping labels, bills of lading, air waybills, invoices, correspondence and any other documents pertaining to the Purchase Order.

(f) Title and Risk of Loss. Title and risk of loss passes to Harbinger upon delivery and Harbinger’s acceptance of the Goods at the Delivery Point. Prior to delivery at the Delivery Point, Supplier shall bear all risk of loss or damage to the Goods.

(g) Testing/Inspection and Rejection of Nonconforming Goods. Supplier shall be responsible for testing and evaluating the Goods prior to delivery in accordance with Harbinger’s instructions and standard industry practice and shall, upon request, deliver to Harbinger the results of such tests and evaluations. In addition, Harbinger has the right, but not the obligation, to inspect all or a sample of the Goods (either directly or via a third-party inspector) prior to and/or within a reasonable period of time after delivery to ensure conformity with this Agreement and all requirements and specifications incorporated herein. If Harbinger determines that the Goods are nonconforming or defective, it may, in its sole discretion, (a) retain and correct Goods that fail to conform to the requirements of a Purchase Order; or (b) reject all or any portion of the Goods. If Harbinger elects to correct the Goods, it will consult with Supplier on the method of correction and Supplier shall reimburse Harbinger for all reasonable expenses resulting from such correction. If Harbinger rejects any portion of the Goods, Harbinger has the right, effective upon written notice to Supplier, to: (i) rescind this Agreement with respect to any portion of Goods rejected and receive prompt reimbursement from Supplier for the cost of such rejected Goods; (ii) accept the Goods or any portion thereof at a reasonably reduced price proportionate to the portion of Goods rejected; or (iii) require replacement of the rejected Goods. Harbinger will also have the right to cancel any unshipped portions of the affected and any related order. If Harbinger rejects or requires replacement of the Goods, Supplier shall, at its sole expense, promptly replace the nonconforming or defective Goods and pay for all related expenses, including, but not limited to, transportation charges for the delivery of replacement Goods (including, if necessary to meet as closely as possible an originally scheduled delivery date, by premium/expedited freight methods) and the costs of any required installation (including removal of the rejected Goods). Rejected Goods shall either be held, returned or disposed of by Harbinger in accordance with Supplier’s instructions at Supplier’s risk and expense. If Supplier fails to timely deliver replacement Goods, Harbinger may replace them with goods from a third party and terminate this Agreement for cause pursuant to 16. Neither inspection nor failure to inspect by Harbinger shall relieve Supplier of any obligations, representations or warranties under this Agreement. For the avoidance of doubt, any actions taken by Harbinger in accordance with this Section shall not be an election of remedies, nor shall such actions in any way limit the rights and remedies which available to Harbinger under these Terms for the breach by Supplier caused by the nonconforming goods.

(h) Hazardous Materials. Prior to and with the shipment of Goods, Supplier shall furnish to Harbinger sufficient advance warning and notice in writing (including, without limitation, appropriate labels on the Goods, containers and packing) of any dangerous Goods or hazardous materials that are included in any shipment of Goods, together with such special handling instructions as may be necessary to advise carriers, Harbinger, and their respective employees or agents of how to exercise that measure of care and precaution that shall comply with any applicable laws or regulations and best prevent bodily injury or property damage in the handling, transportation, processing, use or disposal of the Goods, containers and packing shipped to Harbinger.

3. Performance and Acceptance of Services.

(a) General. Supplier shall provide the Services to Harbinger as described and in accordance with the schedule set forth in the Purchase Order, or, to the extent not specified in the Purchase Order, as otherwise instructed by Harbinger, and in accordance with these Terms. All deliverables shall conform with the specifications and instructions provided by Harbinger.

(b) Performance Obligations. At all times while performing the Services, Supplier shall:

(i) before the date on which the Services are to start, obtain, and at all times during performance, maintain, all necessary licenses and consents and comply with all relevant laws applicable to the provision of the Services;

(ii) comply with all rules, regulations and policies of Harbinger, including security procedures concerning systems and data and remote access thereto, building security procedures, including the restriction of access by Harbinger to certain areas of its premises or systems for security reasons, and all health and safety practices and procedures;

(iii) maintain complete and accurate records relating to the provision of the Services under this Agreement, including records of the time spent and materials used by Supplier in providing the Services in such form as Harbinger shall approve. During the term of this Agreement and for a period of two years thereafter, upon Harbinger’s written request, Supplier shall allow Harbinger to inspect and make copies of such records and interview Supplier personnel in connection with the provision of the Services;

(iv) obtain Harbinger’s written consent, which shall not be unreasonably withheld or delayed, prior to entering into agreements with or otherwise engaging any person or entity, including all subcontractors and affiliates of Supplier, other than Supplier’s employees, to provide any Services to Harbinger (each such approved subcontractor or other third party, a “Permitted Subcontractor”). Harbinger’s approval of any Permitted Subcontractor shall not relieve Supplier of its obligations under the Agreement, and Supplier shall remain fully responsible for the performance of each such Permitted Subcontractor and its employees and for their compliance with all of the terms and conditions of this Agreement as if they were Supplier’s own employees. Nothing contained in this Agreement shall create any contractual relationship between Harbinger and any Supplier subcontractor or subsupplier;

(v) require each Permitted Subcontractor to be bound in writing by the confidentiality provisions of this Agreement, and, upon Harbinger’s written request, to enter into a non-disclosure or intellectual property assignment or license agreement in a form that is reasonably satisfactory to Harbinger;

(vi) ensure that all persons, whether employees, agents, subcontractors, or anyone acting for or on behalf of Supplier, are properly licensed, certified or accredited as required by applicable law and are suitably skilled, experienced and qualified to perform the Services and that necessary supervision is provided to ensure compliance with the terms of the Purchase Order;

(vii) ensure that all of its equipment used in the provision of the Services is in good working order and suitable for the purposes for which it is used, and conforms to all relevant legal standards and standards specified by Harbinger;

(viii) keep and maintain any Harbinger equipment in its possession in good working order and shall not dispose of or use such equipment other than in accordance with Harbinger’s written instructions or authorization;

(ix) ensure that all Services to be performed at the Harbinger facilities shall not interfere with the operations of Harbinger or third parties any more than reasonably necessary for performance of the Services; and

(x) ensure that, in performing the Services, Supplier takes particular care to utilize methods and substances that are not harmful to the environment. If Supplier releases any hazardous substances in performing the Services, finds any hazardous substances, or suspects the presence of such substances, Supplier shall notify Harbinger immediately and cooperate with Harbinger to promptly remedy the issue.

(c) Acceptance. Upon completion, Supplier shall apply for final acceptance of the Services and any associated deliverables by Harbinger. The acceptance of the Services, partial Services or any deliverables shall only be considered granted upon written confirmation by Harbinger.

4. Amendment and Modifications.

No change to a Purchase Order is binding upon Harbinger unless it is in writing, specifically states that it amends the Purchase Order and is signed by an authorized representative of Harbinger. Harbinger may at any time, by written instructions and/or drawings issued to Supplier (each a “Change Order”), make changes to the terms of any previously issued Purchase Order and the Goods or Services purchased thereunder. The parties are obligated to promptly negotiate, reasonably and in good faith, any adjustments to price (up or down) or to delivery schedule which would result from the proposed changes. Supplier shall within ten (10) days of receipt of a Change Order (or by such other date as indicated thereon) submit to Harbinger a firm cost proposal for the Change Order; and if Harbinger accepts such cost proposal or a modified proposal agreed by both parties, Supplier shall promptly proceed with the implementation of the approved changes subject to the agreed cost proposal and the terms and conditions of this Agreement. Supplier shall not at any time modify the Goods or Services or discontinue the production or supply of the Goods or Services during the term of any Purchase Order without Harbinger’s prior written consent. Supplier shall not relocate the production, manufacture, assembly or shipping locations of the Goods from the facilities and locations approved by Harbinger or substantially alter the nature or quality of the Services to be performed (including changes to key personnel involved in the Services) without Harbinger’s prior written consent.

5. Price.

(a) The price of the Goods and Services is the price stated in the Purchase Order (the “Price”). Unless otherwise specified in the Purchase Order, the Price includes all packaging, transportation, storage, handling, insurance, customs duties and fees and applicable taxes, including, but not limited to, all sales, use, value-added, transfer, or excise taxes. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Harbinger. Supplier shall exclude from the Price any duties, taxes or fees where an exemption is indicated as available by Harbinger (e.g., by furnishing of a certificate of exemption).

(b) As a general matter, Supplier is expected to not apply a markup or take any profit on tooling. The price of tooling (if any) shall not, unless specifically authorized by Harbinger in a Purchase Order, exceed the lower of: (i) the maximum amount reimbursable for the tools as specified on the Purchase Order; (ii) Supplier’s actual costs of acquiring the tooling from a toolmaker without markup; or (iii) Supplier’s actual costs of fabrication of the tooling in accordance with Harbinger’s guidelines provided to Supplier.

6. Customs.

Licenses, consents, permits or other authorizations required for the import or export of Goods or Services shall be the responsibility of Supplier unless otherwise indicated in this Agreement, in which event Supplier shall provide such information as may be requested by Harbinger to enable Harbinger to obtain such licenses or authorizations. Transferable credits or benefits resulting or arising from this Agreement, including trade credits, export credits or the refund of duties, taxes or fees, shall belong to Harbinger, and Supplier shall timely and accurately provide all information and documents necessary (including written documentation and electronic transaction records) to permit Harbinger to receive such benefits or credits. Supplier shall undertake such arrangements as necessary for the Products to be covered by any duty deferral or free trade zone program(s) of the country of import.

7. Payment.

Supplier shall promptly after delivery of the Goods or acceptance by Harbinger of the Services submit correct and complete invoices to Harbinger, along with any reasonably appropriate supporting documentation. Unless otherwise set forth in any Purchase Order, Harbinger shall pay all properly invoiced amounts due to Supplier within sixty (60) days after Harbinger’s receipt of such invoice, except for any amounts disputed by Harbinger in good faith. Unless a Purchase Order specifically states otherwise, all payments for Goods or Services hereunder shall be made in U.S. dollars, by check, electronic transfer, or other method of payment agreed by the parties. Without prejudice to any other right or remedy it may have, Harbinger reserves the right to set off at any time any amount owing to it by Supplier against any amount payable by Harbinger to Supplier. In the event of a payment dispute, Harbinger shall deliver a written statement to Supplier listing all disputed items and providing a reasonably detailed description of each disputed item. The parties shall seek to resolve all such disputes expeditiously and in good faith. Supplier shall continue performing its obligations under this Agreement notwithstanding any such dispute. Payment by Harbinger for Goods or Services shall not constitute its acceptance thereof, nor shall such payment remove Supplier’s responsibility for any nonconforming Goods or Services or limit Harbinger’s right to assert any other legal or equitable remedy.

8. Property.

(a) All supplies, tooling (including fixtures, gauges, jigs, patterns, castings, cavity dies and molds, with all related appurtenances, accessions, and accessories), and all other deliverables, data, inventions (whether or not patentable), industrial designs, technical information, know-how, processes of manufacture and other intellectual property and information, which has been either: (i) provided by Harbinger; or (ii) created, developed, conceived or first reduced to practice by or on behalf of Supplier to produce the Goods or Services, unless otherwise expressly agreed in writing, shall be the sole and exclusive property of Harbinger (“Harbinger Property”). To the extent that this Agreement is issued for the creation of copyrightable works, the works 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 and if lawfully permitted waives all moral rights therein. Harbinger Property shall explicitly exclude any intellectual property rights to off-the-shelf goods or software of Supplier.

(b) Harbinger Property shall be held by Supplier on a bailment basis until such time as it is transferred to Harbinger. Supplier shall bear the risk of loss of and damage beyond reasonable wear and tear to Harbinger Property and shall adequately insure Harbinger Property for its full replacement value at Supplier’s cost, with loss payable to Harbinger, at all times while Harbinger Property is in Supplier’s possession. At all times while in Supplier’s possession, Harbinger Property shall also be properly housed and maintained by Supplier, at its expense, and clearly marked as Harbinger Property. Harbinger Property shall not be used by Supplier for the production of Goods or Services for third parties absent Harbinger’s express prior written consent. Upon Harbinger’s written request, Harbinger Property shall be released to Harbinger or delivered by Supplier to Harbinger, pursuant to Harbinger’s written instructions. To the fullest extent permitted by applicable law, Supplier waives all rights to any liens that Supplier may otherwise have on any Harbinger Property, and Supplier shall ensure that no other third-party liens are attached to Harbinger Property.

(c) Harbinger does not transfer to Supplier any patent, trade secret, trademark, service mark, copyright, mask work, or other intellectual property right (“Intellectual Property Right”) of Harbinger in or to any information, documents, or property that Harbinger makes available to Supplier under this Agreement, other than the limited right to use Harbinger’s Intellectual Property Rights only as necessary to produce and supply Goods and Services to Harbinger pursuant to a Purchase Order.

(d) Except as stated in Section 8(a) or as otherwise set forth in any duly signed agreement between the parties, Supplier does not transfer to Harbinger any Intellectual Property Right of Supplier related to the Goods or Services, other than the right to use such Intellectual Property Right of Supplier in connection with the intended uses of such Goods and Services as anticipated under this Agreement. Supplier hereby grants to Harbinger a non-exclusive, perpetual, fully paid, worldwide right and license, with rights to grant sublicenses to affiliates, to use Supplier’s Intellectual Property Rights in connection with such intended uses, which include the use of the Goods and Services in conjunction with the development, manufacture, assembly, production and sale of Harbinger vehicles and related vehicle components and subsystems, and the creation of derivative works to Harbinger Property (including to deliverables supplied under this Agreement).

9. Warranties.

(a) General. Supplier represents and warrants to Harbinger that: (i) Supplier has the right to enter into the Agreement, to grant the rights herein and to perform fully all of its obligations in the Agreement, including under each Purchase Order; and (ii) Supplier entering into this Agreement with Harbinger and its performance of any Services and delivery of any Goods hereunder does not and will not conflict with or result in any breach or default under any other agreement to which it is subject. All warranties set forth in this Section 9 are cumulative and in addition to any warranties express or implied by law or equity or otherwise made by Supplier. Any applicable statute of limitations runs from the date of Harbinger’s discovery of the noncompliance of the Goods or Services with the foregoing warranties.

(b) Warranty on Goods. Supplier warrants to Harbinger that for the duration of the Warranty Period (defined below), all Goods will: (i) be free from any defects in workmanship, material and design; (ii) conform to applicable specifications, drawings, designs, statements of work, samples and other requirements specified or approved by Harbinger; (iii) be fit for their intended purpose and operate as intended; (iv) be merchantable; (v) be free and clear of all liens, security interests or other encumbrances; and (vi) not infringe or misappropriate any third party’s patent or other intellectual property rights. These warranties survive any delivery, inspection, acceptance or payment of or for the Goods by Harbinger.

(c) Warranty on Services. Supplier warrants to Harbinger that it shall perform any Services under this Agreement: (i) using personnel of appropriate skill, training, experience and qualifications and in a professional and workmanlike manner, in accordance with any established professional standards for similar services, and with the best practices in Supplier’s industry; (ii) in conformance in all material respects with the specifications, statements of work, or other requirements specified or approved by Harbinger; and (iii) in compliance with applicable law. Any deliverables produced in connection with the Services shall be warranted as provided for Goods above under Section 9(b).

(d) Warranty Period. The duration of the warranties on any Goods or Services supplied hereunder shall extend for: (i) five (5) years from the later of the date of delivery of Goods or acceptance of Services by Harbinger or (ii) such other period of time specified in an applicable Purchase Order (the “Warranty Period”).

10. Indemnification.M

(a) General Indemnification. Supplier shall defend, indemnify and hold harmless Harbinger, and its subsidiaries, affiliates, successors or assigns and each of their respective directors, officers, shareholders, agents and employees (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with the Goods and Services purchased from Supplier or Supplier’s negligence, wilful misconduct or breach of the Agreement. Supplier’s obligation to indemnify will apply regardless of whether the claim arises in tort, negligence, contract, warranty, strict liability or otherwise. Supplier shall not enter into any settlement without Harbinger’s or Indemnitee’s prior written consent.

(b) Intellectual Property Indemnification. Supplier shall, at its expense, defend, indemnify and hold harmless Harbinger and any Indemnitee against any and all Losses arising out of or in connection with any claim that Harbinger’s or Indemnitee’s use or possession of the Goods or use of the Services infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party.

11. Limitation of Liability.

IN NO EVENT SHALL HARBINGER BE LIABLE TO SUPPLIER FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES ARISING FROM OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF ANY NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. Notwithstanding anything to the contrary contained in this Agreement, in no event shall Harbinger or its Indemnitee’s total maximum aggregate liability arising from this Agreement exceed the total fees and costs which Harbinger paid to Supplier under the applicable Purchase Order within the twelve (12) month period preceding the date that any claim is brought.

12. Insurance.

During the term of this Agreement and for a period of twenty-four (24) months thereafter, Supplier shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to the following: (a) Worker’s Compensation Insurance as required by applicable law including Employer’s Liability coverage “B” (or stop gap coverage) in the amount of $1,000,000; (b) Commercial General Liability Insurance (including product liability) in at least the amount of $1,000,000 combined single limits per occurrence and $2,000,000 in the aggregate; (c) Vehicular Liability Insurance in at least the amount of $1,000,000; and (d) Umbrella coverage in the amount of $1,000,000. Any shortfall in the above coverages can be made up for by the umbrella policy so long as proof is provided in writing that the umbrella covers that policy. All policies must be undertaken with financially sound and reputable insurers. To the extent a form of insurance specified above is not applicable to a particular Supplier’s business with Harbinger, the requirement to maintain such insurance may be waived by explicit reference to such in the Purchase Order. Upon Harbinger’s request, Supplier shall provide Harbinger with a certificate of insurance from Supplier’s insurer evidencing the insurance coverage specified in these Terms. The certificate of insurance shall name Harbinger as an additional insured. Supplier shall provide Harbinger with thirty (30) days’ advance written notice in the event of a cancellation or material change in Supplier’s insurance policy which is relevant to Supplier’s business with Harbinger. Except where prohibited by law, Supplier shall require its insurer to waive all rights of subrogation against Supplier’s insurers and Supplier. Supplier must also require all subcontractors to comply with the insurance requirements of these Terms, and Supplier shall be liable for any shortfall in a subcontractor’s insurance which would serve to limit complete recovery by Harbinger.

13. Compliance with Law.

Supplier, and all Goods and Services supplied by Supplier, shall comply with all applicable laws, rules, regulations, ordinances or standards of all countries or jurisdictions which are involved to in the sale of the Goods or the provision of Services under this Agreement (“Applicable Law”). This includes but is not limited to laws, rules, regulations, ordinances or standards that relate to the manufacture, labeling, transportation, importation, exportation, licensing, approval or certification of the Goods or Services, emissions and other environmental matters, the handling and transportation of dangerous Goods or hazardous materials, data protection and privacy, wages, hours and conditions of employment, subcontractor selection, discrimination, and occupational health/safety. Supplier shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Supplier shall comply with all applicable export control and sanctions laws and regulations of the United States, of member States of the European Union, and any other relevant country (the “Export Control Laws”). Supplier shall not violate, and shall not cause Harbinger to violate, any Export Control Laws (e.g., by transshipping Goods through, or supplying Goods from, sanctioned countries). Unless specifically approved in writing by Harbinger, no activities of Supplier (including those performed by any subcontractor) related to the handling of personally identifiable information (as defined by Harbinger from time to time at its sole discretion), including any processing, hosting, maintenance or storage activities related to such personally identifiable information, shall be undertaken outside of the continental United States. Supplier represents and warrants that neither it nor any of its subcontractors, suppliers, agents or other associated third parties utilizes child, slave, prisoner or any other form of forced or involuntary labor, or engage in abusive employment or corrupt business practices, in the supply of Goods or Services under this Agreement. At Harbinger’s request, Supplier shall certify in writing its compliance with the foregoing and provide Harbinger with any requested documentation to enable Harbinger to comply with Applicable Law.

14. Assurance of Performance.

In the event that Harbinger has reasonable grounds for insecurity with respect to Supplier’s continued performance under this Agreement, Harbinger may, in writing, demand adequate assurance of such performance from Supplier. After receipt of such demand, Supplier’s failure, within a reasonable period of time under the circumstances (not to exceed 15 days), to provide assurances adequate under the circumstances shall be deemed a breach of this Contract by Supplier.

15. Audit Rights.

If requested by Harbinger, Supplier will permit Harbinger to examine all pertinent documents, data and other information relating to the Goods or Services, Supplier’s obligations under a Purchase Order, or any payment made to the Seller during the term of this Agreement and for a period of two (2) years thereafter. Harbinger further reserves the right to inspect any facility where the Goods are being processed or where the Services are being performed to ensure compliance with the terms of the Purchase Order.

16. Term and Termination.

(a) Term. These Terms shall remain in effect so long as Purchase Orders hereunder remain in effect. Purchase Order shall, unless earlier terminated in accordance with these Terms, remain in effect for the term specified in such Purchase Order or, absent the specification of a term, until the completion of delivery of all Goods and acceptance by Harbinger of all Services contemplated pursuant to the Purchase Order.

(b) Termination for Convenience. Unless a Purchase Order specifically states otherwise, prior to the Delivery Date or commencement of Services, Harbinger may terminate all or any part of this Agreement, in whole or in part, with immediate effect, by a written notice of termination to Supplier. After the Delivery Date or commencement of Services, except as set forth at Section 16(b), Harbinger shall have the right to terminate this Agreement, or any purchase order hereunder, in whole or in part, for any reason, upon thirty (30) days’ written notice to Supplier. In the event of a termination for convenience by Harbinger, Harbinger shall be obligated to pay Supplier: (i) on a pro rata basis for any Goods delivered or Services completed prior to the date of termination; (ii) the actual costs incurred by Supplier for work-in-process and raw materials, provided that such costs are reasonable and were incurred in accordance with a purchase order or written instructions from Harbinger, and that such work-in-process and raw materials cannot be repurposed by the Supplier; and (iii) any other costs or allowances that Harbinger, in its sole discretion, may elect to pay. The foregoing sets forth Supplier’s sole remedy and Harbinger’s maximum liability to Supplier in the event of a termination under this Section.

(c) Termination for Cause. In addition to any remedies that may be provided under these Terms, Harbinger may terminate all or any part of this Agreement, without incurring any liability to Supplier, if Supplier: (a) breaches any term of this Agreement (including Supplier’s warranties); (b) states its intention not to perform or otherwise rejects its obligations under this Agreement, including Supplier’s obligation to provide adequate assurance of performance; or (c) fails to make progress in performance so as to endanger timely and proper delivery of Goods or Services, provided that, in each case, Supplier does not cure such breach, rejection or failure within ten (10) days (or such shorter period of time if commercially reasonable under the circumstances) after receipt of written notice from Harbinger specifying such failure or breach. If Supplier becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then Harbinger may terminate this Agreement immediately upon written notice to Supplier. Supplier is liable for all actual costs incurred by Harbinger, including those for attorneys, experts, consultants and other professionals, in effectuating any termination for cause. If Harbinger terminates the Agreement for cause, Supplier’s sole and exclusive remedy is payment for the Goods received and accepted and Services accepted by Harbinger prior to the termination.

(d) Supplier’s Obligations Upon Termination. Upon receipt of any notice of termination, Supplier, unless otherwise directed by Harbinger, will: (i) terminate promptly all work under any Purchase Order subject to termination; (ii) transfer title and deliver to Harbinger the finished work, the work in process, and the parts and materials which Supplier produced or acquired in accordance with any Purchase Order subject to termination; (iii) verify/settle all claims by Permitted Subcontractors for actual costs that are rendered unrecoverable by such termination and provided the recovery of materials in Supplier’s possession is ensured; and (iv) take actions reasonably necessary to protect property in Supplier’s possession in which Harbinger has an interest until transfer or disposal instructions from Harbinger have been received.

17. Confidential Information.

All non-public, confidential or proprietary information of Harbinger, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Harbinger to Supplier, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement shall be considered the confidential information of Harbinger and may be used by Supplier solely for the purpose of performing this Agreement and may not be disclosed or copied unless authorized in advance by Harbinger in writing; provided that, the confidential information shall not include information that is: (a) in the public domain; (b) known to Supplier at the time of disclosure; or (c) rightfully obtained by Harbinger on a non-confidential basis from a third party. Supplier shall safeguard the confidential information of Harbinger using the same degree of care as it uses to safeguard its own confidential and proprietary information, provided such degree of care shall not be less than a reasonable degree of care (including through the use of industry best practice data security measures). Harbinger shall be entitled to injunctive relief for any violation of this Section. Upon Harbinger’s request, Supplier shall promptly return all documents and other materials received from Harbinger. These confidentiality obligations are expressly intended to be additive, and in no way shall reduce or limit any obligations of Supplier under a separately agreed non- disclosure agreement or other similar written agreement containing obligations with respect to confidentiality, which are hereby incorporated by reference.

18. Miscellaneous.

(a) Waiver. No waiver by Harbinger of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Harbinger. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. 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.

(b) Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such party’s (the “Impacted Party”) failure or delay is caused by or results from the following force majeure events (“Force Majeure Event(s)”): (a) acts of God or the public enemy; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency officially declared by a governmental authority; (g) strikes, labor stoppages or slowdowns or other industrial disturbances, to the extent unforeseeable or unavoidable; (h) shortage of adequate power or utility facilities; and (i) other events or circumstances of a like nature to those above that are beyond the reasonable control of the defaulting party, without such party’s fault or negligence, and which by their nature could not have been foreseen by such party or, if foreseeable, were unavoidable. Material risks known to a party at the time a Purchase Order was accepted shall generally not be considered unforeseeable or unavoidable. Supplier’s economic hardship or changes in market conditions are not considered Force Majeure Events. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized and shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause of the Force Majeure Event. If a Force Majeure Event prevents Supplier from carrying out its obligations under this Agreement for a continuous period of more than twenty (20) days, Harbinger may terminate this Agreement immediately by giving written notice to Supplier.

(c) Assignment. Supplier shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Agreement without the prior written consent of Harbinger. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve Supplier of any of its obligations hereunder. Harbinger may at any time assign or transfer any or all of its rights or obligations under this Agreement without Supplier’s prior written consent to any affiliate or to any person acquiring all or substantially all of Harbinger’s assets.

(d) Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

(e) No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

(f) Governing Law/Venue. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would cause the laws of any other jurisdiction to apply. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement or any matter arising out of or relating thereto.

(g) Binding Arbitration. Any claim or controversy arising out of or relating to this Agreement shall be settled by binding arbitration before a single, neutral arbitration in Los Angeles, California in accordance with the Commercial Arbitration Rules of JAMS (“Rules”), which can be found at https://www.jamsadr.com, and which are incorporated herein by reference. Arbitration shall be conducted by one or more arbitrators appointed in accordance with said Rules. The language of the arbitration shall be in the English language. The award and the proceedings shall be kept confidential except to the extent required to enforce the award. The Parties shall be bound by the award rendered by the arbitration and judgment thereon may be entered in any court of competent jurisdiction. Any judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction. Each party shall pay the fees of its own attorneys, the expenses of its witnesses and all other expenses connected with presenting its case; however, Supplier and Harbinger agree that, except as may be prohibited by law, the arbitrator may, in his or her discretion, award reasonable attorney’s fees to the prevailing party. Other costs of the arbitration, including the cost of any record or transcripts of the arbitration, administrative fees, the fee of the sole arbitrator, and all other fees and costs, shall be borne equally by the parties. Notwithstanding the foregoing, all other disputes, to the extent settled outside of arbitration, shall be exclusively heard by the state or federal courts located in Los Angeles County, California, and each party irrevocably submits to the jurisdiction of such courts and waives any objection based on improper venue or forum non conveniens.

(h) Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Purchase Order or, with respect to Supplier, the sales confirmation, or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or electronic mail (valid only if and upon confirmation of receipt by the receiving party), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.

(i) Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

(j) Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Property, Warranties, Indemnification, Insurance, Compliance with Laws, Audit Rights, Confidential Information, Governing Law/Venue, Binding Arbitration, Notices and Survival.

(k) Amendment and Modification. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.