These Purchase Order Terms and Conditions (“PO Terms”) and any attachments hereto govern the purchase by ABS-Labs Pvt Ltd., its parent company, Motive Technologies, Inc. and any of its subsidiaries or affiliates (“Buyer”) of the goods and/or services (“Deliverables”) specified in the purchase order, statement of work, or equivalent order form (the “PO”) from the supplier listed in the PO (“Seller”).  In the event of any conflict between the terms contained in the PO, these PO Terms, and any master governing agreement or equivalent governing terms the parties have mutually executed in writing (the “Master Agreement”), the order of precedence shall be: (1) the Master Agreement, (2) the PO, and (3) these PO Terms.

1. Acceptance of Terms

The PO is expressly conditioned on Seller’s acceptance of all the terms and conditions set forth herein.  By commencing to deliver the Deliverables subject to these PO Terms, Seller is deemed to accept the terms and conditions hereof without alteration. Any purported acceptance by Seller which states additional or different terms from those stated in this Order shall be deemed an acceptance by Seller of the terms set forth herein and any such additional or different terms shall be considered material alterations to which Buyer expressly objects and rejects. No modification, alteration or amendment of the terms set forth herein shall be effective unless in writing and signed by authorized representatives of both parties. Acceptance of the goods or services covered by these PO Terms will not constitute Buyer’s acceptance of Seller’s terms and conditions.

2. Performance

Seller shall provide, and Buyer shall accept the Deliverables described in the PO, which is incorporated herein. Seller shall not increase the price set forth in the PO without the express written consent of Buyer.  Should Seller decrease the prices set forth in the PO, the lower price shall apply to all Deliverables not yet delivered at the time of the reduction.

Time is of the essence in the performance of the PO. If the Deliverables are not delivered or provided in the manner and at the times specified herein, Buyer may, in addition to any other rights and remedies it may have, direct expedited delivery of the Deliverables at Seller’s expense or purchase substitute Deliverables, with Seller accepting responsibility for any difference in price or cost associated with such substitution. Seller will promptly advise Buyer of any anticipated delay in performance, including notice regarding any goods placed under backorder.  Seller’s performance is not deemed completed until the Deliverables have been accepted by Buyer at the destination set forth above. 

3. Inspection and Acceptance

Upon completion of the Deliverables provided by Seller hereunder, Buyer shall have a reasonable time, not to exceed thirty (30) days, to inspect and test the Deliverables to determine if they conform to the relevant specifications and instructions and Buyer will notify Seller either of its acceptance thereof (“Final Acceptance”) or identify any deficiency. No inspection made prior to Final Acceptance will relieve Seller from responsibility for failure to meet the requirements of this PO and no Deliverables shall be deemed accepted without Buyer’s express written acceptance.  If the Deliverables do not meet the applicable specifications and instructions, Seller will promptly re-perform the nonconforming services or provide replacement goods satisfactory to Buyer at Seller’s expense. If Seller cannot provide conforming goods or services within thirty (30) days following notification of a deficiency, Buyer may terminate the PO and Seller shall refund the prepaid fees to Buyer. Seller will bear all risk of loss, damage, or destruction to the Deliverables until Final Acceptance by Buyer at destination. Seller will bear the same risk with respect to any Deliverables rejected by Buyer.

4. Invoicing and Payment

Upon completion of its performance, Seller shall provide Buyer with an acceptable invoice.  For timely payment by Buyer, all invoices must include: (a) the purchase order number; (b) a description of the items, quantities, and prices for all goods for which payment is sought; and (c) any discounts to which Buyer is entitled.  Discounts shall be computed as of the latest of (i) the scheduled delivery date; (ii) actual delivery; or (iii) the date an acceptable invoice is received.  All invoices shall list any taxes, duties, customs, tariffs, and similar charges separately.  Invoices submitted hereunder will be paid according to the payment terms set forth in the PO calculated from receipt of a correct invoice or acceptance of Deliverables by Buyer, whichever is later. If Buyer reasonably disputes any or all of an invoice received from Seller, the parties agree to work together in good faith to resolve the dispute.  Any changes to the scope or timing of Seller providing the Deliverables or the fees must be made in writing and signed by both parties to be enforceable. Buyer will reimburse Seller only for the costs and expenses that Buyer has given its prior written approval for. Payment does not constitute Final Acceptance.

5. Changes and Cancellations

5.1. Either party may request to change delivery schedules, designs, quantities, and other specifications for the Deliverables. Requested change(s) will only become part of the PO and enforceable against the parties upon the execution of a change order in writing by both parties that references the original PO and the agreed-on changes taking effect.

5.2 Buyer may terminate or suspend this PO in whole or in part at any time at its sole discretion by providing written notice to Seller. Upon receipt of such notice, Seller shall cease its performance immediately.

6. Warranty

Seller expressly warrants that the goods or services provided under the PO will be (i) performed according to any specifications and instructions provided by Buyer; and (ii) merchantable, non-infringing, free from defects in material, workmanship, and design, free of liens and encumbrances, and fit and sufficient for the purpose intended. Seller’s services will be performed with the highest degree of skill and judgment exercised by recognized professionals performing the same or similar services.  Seller represents it has the full authority to enter into these PO Terms, to carry out its obligations hereunder, to grant the rights and licenses to Buyer herein, and that it will comply with all Applicable Laws related to the performance of services and provision of Deliverables hereunder. These warranties are in addition to all other warranties, express, implied, or statutory and shall survive delivery, acceptance, and payment.  Buyer shall be entitled to the benefit of any warranties for goods and services provided to Seller by its vendors or suppliers.  Should Seller breach the foregoing warranties, Seller shall promptly replace, repair, re-perform at no cost to Buyer the unacceptable items. If the item is unable to be replaced, repaired, or service re-performed within thirty (30) days, Seller shall refund the purchase price and cost of shipment for all unacceptable items.  Buyer shall have no responsibility for non-conforming goods or services and Buyer shall have the option to retain any such non-conforming goods or services or return them to Seller at Seller’s sole expense.

7. Confidential Information

In performing its obligations under these PO Terms, Seller may have access to or acquire from Buyer confidential and proprietary information about Buyer, its business activities and operations, its employees, trade secrets, data furnished to assist with Seller’s provision of the Deliverables including specifications, drawings, and samples, or other information which by its nature should reasonably be considered confidential (the “Confidential Information”).  Buyer Confidential Information may only be disclosed to Seller’s employees, agents, or consultants with a need to know and who are under a written obligation to keep the information confidential. Seller will not disclose Confidential Information to any third party. Seller will use the same degree of care (but no less than a reasonable degree of care) that it uses with regard to its own confidential information to prevent the unauthorized disclosure of Confidential Information and will return Buyer’s Confidential Information upon Buyer’s request.

8. Publicity

Neither party may use the other’s name, logo, trademarks, or other materials for advertising or other purposes or disclose the existence or terms of the PO without the other party’s prior written consent.

9. Intellectual Property

9.1 “Intellectual Property” means all intellectual property and proprietary rights, including without limitation all rights of inventorship and authorship, inventions, patents, patent applications, and know-how, for any product, process, method, machine, manufacture, design, composition of matter, or any new or useful improvement thereof, as well as copyrights, trademark, trade dress and service mark rights and all rights in trade secrets, computer software, proprietary information and data and databases. 

9.2 “Buyer Property” means:

1. Buyer’s Intellectual Property that Buyer owns prior to the Effective Date of the PO or acquires separately or develops;
2. Intellectual Property conceived, produced, or developed by Seller, whether directly or indirectly or alone or jointly with others, in connection with or pursuant to Seller’s performance hereunder; and
3. Other Deliverables, goods, or services that are made by Seller using Buyer’s equipment, funds, supplies, facilities, materials and/or Buyer’s proprietary information.

9.3 “Seller Deliverables” means Intellectual Property described by Sections 9.2.2 and 9.2.3 above.

9.4 Seller shall assign and hereby does assign to Buyer all of its respective rights, title, and interest in the Seller Deliverables and Buyer shall own all right, title and interest in and to such Seller Deliverables including the rights, title, and interest including all rights of inventorship and authorship, all patents and patent applications, all copyrights, all trademark and service mark rights, all rights in trade secret and proprietary information, all rights of attribution and integrity and other moral rights and all other Intellectual Property rights.  Seller Deliverables shall be considered work made for hire.

9.5 With respect to Intellectual Property (1) created or acquired by Seller before the Effective Date of the PO and not assigned pursuant the PO or (2) independently developed by or for Seller as part of Seller’s normal business and not developed for or paid for by Buyer under this or another PO, Seller shall retain all right, title and interest to said Intellectual Property (even if included in the goods and services delivered pursuant to this PO). For all such Intellectual Property included in the Deliverables, Seller grants Buyer a fully-paid up, perpetual and irrevocable, world-wide, non-exclusive license to: (a) prepare derivative works; and (b) make, use, have made, import, have imported, export, have exported, distribute, have distributed, publicly and privately perform, display and transmit derivative works and reproductions thereof, and to sublicense all of these rights for Buyer’s benefit and to sublicense such rights for Buyer’s benefit.

9.6 Notwithstanding the foregoing, if the Deliverables consist of Seller’s training materials developed without the use of any Buyer Intellectual Property, Buyer’s license to said materials shall be limited to Buyer’s internal business operations unless another license is granted by Seller.  Further, if the Deliverables include entertaining, speaking, facilitating, hosting, lecturing, performing, etc. for a Buyer hosted event, meeting or conference, Buyer’s license to the goods and services shall include the right to use Seller’s likeness and performance for Buyer’s internal business purposes and to broadcast, web cast or otherwise disseminate Seller’s performance and likeness, in whole or in part, live or recorded, with or without audio or video, or with different audio or video throughout the world on all media, channels and manner of distribution now or hereafter known.

9.7 If Seller incorporates Intellectual Property owned by any third party into the Deliverables, it shall disclose all such Intellectual Property or open source software to Buyer prior to commencing the services described herein and shall secure all required documentation, licenses, notices, etc. for Buyer’s benefit.  Buyer shall have no obligation to accept or pay for any goods and services provided hereunder that contain such third-party Intellectual Property if Seller does not disclose same as required herein.

10. Indemnification

10.1. Intellectual Property. Seller shall indemnify Buyer, its officers, directors, resellers, employees, agents, and customers (“Buyer Indemnified Parties”) and hold them harmless against any costs, expenses, losses, damages, or liabilities incurred because of actual or alleged infringement of any patent, copyright, trade secret, trademark or other intellectual property right arising out of the use or sale by Buyer Indemnified Parties of any Deliverables. Buyer shall notify Seller of any such claim or demand and Seller shall defend at its expense any suits based thereon. If an injunction issues as a result of any such claim, Seller agrees at its expense and at Buyer’s option to: (i) procure for Buyer the right to continue using items ordered hereunder; (ii) replace such goods with noninfringing items; (iii) modify the goods so they become noninfringing without materially reducing the functionality of such goods; or (iv) refund to Buyer the amount paid for the items and bear all liabilities, costs and expenses related to discarding them or returning them to Seller.

10.2  General.  Seller will indemnify, defend, and hold Buyer Indemnified Parties harmless from and against any and all losses, liabilities, costs, claims, damages and expenses (including attorneys’ fees and costs) arising out of or related to the PO including but not limited to the provision of the Deliverables or Seller’s breach of any term or provision of these PO Terms.

11. Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BUYER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS PO EXCEED THE TOTAL AMOUNT ACTUALLY PAID OR PAYABLE BY BUYER TO SELLER FOR THE APPLICABLE GOODS OR SERVICES PROVIDED UNDER THIS PO NOR WILL BUYER OR ITS RELATED LEGAL ENTITIES BE LIABLE FOR ANY LOST REVENUES, LOST PROFITS, INCIDENTAL, DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF.

12. Assignment

This PO is not assignable by Seller without Buyer’s written consent. Any purported assignment without the requisite consent shall be of no effect. Seller shall be required to obtain Buyer’s written consent prior to using subcontractors to fulfill any portions of its obligations hereunder. Subcontractors must be engaged pursuant to contracts the contain or are consistent in all material aspects with these PO Terms. Seller shall remain responsible and liable for the acts and inactions of its subcontractor to the same extent as if such acts and inactions were performed or not performed by Seller itself.

13. Compliance with Laws and Policy

13.1. Seller will comply with the applicable provisions of all federal, state, and local laws, ordinances, and all orders, rules and regulations issued thereunder, including without limitation, any local law or regulations relating to the privacy, security, integrity and availability of personal data, or restrictions on the processing, movement or transfer of such personal data and the Foreign Corrupt Practices Act 15 U.S.C. Section78dd-1 et seq (“Applicable Laws”)

13.2 Seller will comply with all applicable Buyer policies, as updated from time to time including Buyer’s Privacy Policy. If Seller provides any personal data to Buyer, it represents and warrants that it has collected all such data in a manner consistent with all Applicable Laws and that it has all required consent to share such data with Buyer.   

14. Import and Export

Seller shall provide all information under its control that is necessary or useful for Buyer to obtain any export or import licenses required for Buyer to ship or receive Deliverables provided hereunder, including, but not limited to, certificates of origin (e.g. NAFTA), manufacturer’s affidavits, Buy America qualification, and U.S. Federal Communications Commissions identifier, if applicable. This information is to be provided by Seller within ten (10) calendar days of Buyer’s request.

15. Insurance

Seller must maintain, at its own expense, while these PO Terms are in effect and for at least two (2) years after Buyer’s Final Acceptance or termination, insurance policies and minimum limits of coverages related to any representation or potential liability hereunder with insurance companies that (a) are reputable and solvent; and (c) if in the United States or Canada, have an A.M. Best’s Insurance Rating of A-VIII or better. In no way do the minimum insurance requirements limit Seller’s liability assumed elsewhere in these PO Terms.

16. Arbitration

The PO shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of law provisions. The parties agree that except as prohibited by Applicable Law or otherwise provided by these PO Terms, arbitration shall be the sole, exclusive, and final remedy for any dispute arising between the parties. Neither Buyer nor Seller will be permitted to pursue court action regarding claims that are subject to arbitration hereunder. Any arbitration proceeding under this section shall be presided over by a single arbitrator and conducted by JAMS, Inc. (“JAMS”) in San Francisco, California under the then-applicable JAMS streamlined rules for the resolution of disputes (available upon request and also currently available at  http://www.jamsadr.com/rules-streamlined-arbitration/). Buyer and Seller both have the right to be represented by legal counsel at any arbitration proceeding, at each party’s own expense. The Arbitrator shall: (i) have the authority to compel adequate discovery for the resolution of the dispute; (ii) issue a written arbitration decision, to include the arbitrator’s essential findings and conclusions and a statement of the award; and (iii) be authorized to award any or all remedies that either party would be entitled to seek in a court of law. The arbitrator will apply the Federal Rules of Civil Procedure, except to the extent such rules conflict with the JAMS rules (or as otherwise provided in this arbitration agreement). The arbitrator shall apply the substantive law of the State of California, without reference to rules of conflict of law. Seller understands that the parties to the arbitration shall each pay an equal share of the costs and expenses of such arbitration (“Arbitration Costs”) except as prohibited by law. In the event JAMS fails, refuses, or otherwise does not enforce the arbitration costs sharing provision, either party may commence an action to recover such amounts against the non-paying party in court, and the non-paying party must reimburse the moving party for the attorneys’ fees and costs incurred in connection with such action. Any final award in any arbitration proceeding hereunder may be entered as a judgment in the federal and state courts of any competent jurisdiction and enforced accordingly. By agreeing to this arbitration provision, the parties waive their right to resolve any disputes arising hereunder through a trial by jury.

17. Injunctive Relief

Notwithstanding Section 17 (Arbitration), either party may petition a court for injunctive relief where either party alleges or claims a violation of any agreement regarding trade secrets, confidential information, or a breach of a restrictive covenant. In the event either party seeks injunctive relief, the prevailing party will be entitled to recover reasonable costs and attorneys’ fees. 

18. Survival

The rights and obligations contained in Sections 6 (Warranty), 7 (Confidential Information), 8 (Publicity), 9 (Intellectual Property), 10 (Indemnification), 11 (Limitations of Liability), 15 (Insurance), 16 (Arbitration), and 17 (Injunctive Relief) will survive Final Acceptance of the Deliverables, or any termination or expiration of these PO Terms and continue in full force and effect thereafter.