PURCHASE ORDER TERMS AND CONDITIONS (GOODS AND SERVICES)

These terms and conditions (“Terms”) apply to the extent the Parties are not otherwise subject to an applicable master agreement.

These Terms govern the purchase of goods (“Goods”) and services (“Services”) set forth in a purchase order that incorporates by reference these Terms (“Order”) by and between Footprint International LLC, inclusive of its subsidiaries and affiliates (“Footprint”), and the seller identified on the Order (“Seller”), either or both of which may be referred to as a Party or the Parties, respectively. An Order, these Terms, and any change orders, attachments, exhibits, policies, specifications, supplements, schedules, or other terms attached to or referenced in a document provided by Footprint to Seller are collectively, the “Agreement.”

1. ACCEPTANCE OF TERMS.

Seller accepts the Order issued by Footprint by (i) acknowledging the Order in writing; or (ii) beginning performance under such Order. By acceptance of an Order, Seller agrees to comply with all terms of the Agreement, unless otherwise agreed by the Parties in a signed writing. These Terms apply to everything in the Order and constitute Footprint’s offer to Seller, which Footprint may revoke at any time prior to Seller’s acceptance. Unless specifically agreed to by Footprint in a signed writing, Footprint rejects and is not bound by any terms and conditions different from or in addition to those contained in the Agreement, including any terms and conditions referenced in or attached to any document provided by Seller and incorporated into the Agreement.

2. GOODS AND SERVICES.

a) Goods. Seller will deliver Goods in the quantities and on the date(s) specified in the Order (“Delivery Date”) and to the address specified in the Order, during Footprint's normal business hours or as otherwise instructed by Footprint. Seller will pack all Goods according to Footprint's instructions or, if there are no instructions, in a manner sufficient to ensure that Goods are delivered in an undamaged and otherwise satisfactory condition. Footprint may return any Goods delivered prior to the Delivery Date at Seller's risk and expense, and Seller will redeliver such Goods on the Delivery Date.

b) Services. Seller will provide Services to Footprint as described in and in accordance with the schedule set forth in the Order or as otherwise specified by Footprint. Seller will obtain, and at all times during the term of the Agreement maintain, all necessary licenses and consents and comply with all relevant laws.

c) Time of the Essence. Time is of the essence, and Seller will strictly adhere to the applicable schedules. Failure to perform in accordance with the Agreement, if unexcused, will constitute a material breach.

3. PRICE.

Footprint will pay the price(s) set forth in an Order issued by Footprint. If no price is set forth on the Order, pricing will be the lower of (i) the amount last quoted to Footprint; (ii) the price set forth in Seller's published price list in force as of the date of the Order; or (iii) the prevailing market price. Unless otherwise agreed by Footprint in the Order, pricing includes all applicable taxes and fees, including packaging, transportation, insurance, tariffs, and customs duties.

4. PAYMENT.

Seller will invoice Footprint for Services performed and Goods delivered pursuant to the Order. Footprint will pay invoices net sixty (60) days after receipt of a valid invoice, unless otherwise agreed by the Parties. Each invoice submitted by Seller must reference the Order, and Footprint may return incorrect invoices. Footprint may offset against any payment hereunder any amount owed to Footprint by Seller or its affiliates.

5. SHIPPING, TITLE, RISK OF LOSS.

Seller will ship Goods DDP (Incoterms 2020) to the Footprint location provided in the Order or as otherwise designated by Footprint in writing (“Delivery Point”). Title and risk of loss passes to Footprint upon delivery of the Goods at the Delivery Point. If Goods ordered are lost, damaged, or destroyed prior to title passing to Footprint, Footprint may (i) cancel all or part of the Order; or (ii) require delivery of substitute goods of equal quantity and quality. Such delivery will be made as soon as commercially practicable.

6. WARRANTIES.

a) Goods. For the longer of twenty-four (24) months from the date of delivery and the period provided in Seller’s standard warranty, Seller warrants that Goods delivered will be free from defects in workmanship, design, production, manufacture, performance, and materials; (ii) conform to all terms of the Agreement; (iii) not infringe or misappropriate any third party's patent or other intellectual property rights; and (iv) not conflict with, or be prohibited in any way by, any other agreement to which Seller is bound or by any applicable law.

b) Services. For the longer of ninety (90) days from the date of completion of Services and the period provided in Seller’s standard warranty, Seller warrants that Services will (i) be completed in a professional and competent manner, with the degree of skill and care that is required by applicable industry standards or practices; (ii) conform to all terms of the Agreement; (iii) not infringe or misappropriate any third party's patent or other intellectual property rights; and (iv) not conflict with, or be prohibited in any way by, any other agreement to which Seller is bound or by any applicable law.

c) Procedure. The warranties set forth in this Section are cumulative and in addition to any other warranty provided by law or equity. All warranties run to Footprint and its customers and survive any delivery, inspection, acceptance, or payment. If Footprint identifies a warranty problem during the warranty period, Footprint will promptly notify Seller, and Seller will, at Seller’s cost and Footprint’s option, promptly (i) either replace or repair the defective or nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods to Seller and the delivery of repaired or replacement Goods to Footprint; or (ii) with respect to Services, repair or re-perform the Services. Replaced or repaired Goods will be warranted for the remainder of the warranty period or six (6) months, whichever is longer. Repaired or re-performed Services will be warranted for the remainder of the warranty period or thirty (30) days, whichever is longer.

7. INSPECTION, ACCEPTANCE.

Footprint will have a reasonable time after receipt and before payment to inspect the Goods or Services for conformity to the Agreement. If Goods or Services do not wholly conform to the Agreement, Footprint may (i) rescind the Agreement in its entirety; (ii) accept the Goods or Services at a reasonably reduced price; or (iii) reject the Goods or Services and require replacement or reperformance of the rejected Goods or Services. Payment does not constitute acceptance. Any payments made for Goods or Services subsequently found to be nonconforming will be refunded to Footprint within thirty (30) days after receipt of Footprint’s notice of the nonconformance.

8. FACILITIES, TOOLS, ACCESS.

Unless otherwise specified in the Order, all services, facilities, materials, equipment, drawings, or other items necessary for the provision of Goods or Services are to be provided by Seller at no additional cost to Footprint. Any facilities, materials, equipment, drawings, or other items which may be furnished or otherwise made available by Footprint will remain the property of Footprint and must be returned in as good condition as when furnished or otherwise made available, except for reasonable wear. To the extent necessary, Footprint will provide Seller reasonable access to Footprint’s personnel and facilities. Seller will comply with all rules, regulations and policies of Footprint, including general health and safety procedures and applicable confidentiality obligations.

9. CHANGES.

Footprint may, at any time, by written instructions and/or drawings issued to Seller (each a "Change Order"), order changes to the Goods or Services. If such change increases or decreases the cost or time required to perform Services or deliver Goods, the Parties will negotiate an equitable adjustment in the price or schedule to reflect the increase or decrease. Unless otherwise agreed by Footprint, Seller must submit to Footprint a firm cost proposal for the Change Order within ten (10) business days after receipt of the Change Order. If Seller considers Footprint’s conduct to constitute a change, Seller must notify Footprint promptly in writing. Pending written confirmation from an authorized representative of Footprint, Seller will take no action to implement such change.

10. INSURANCE.

Seller will obtain and maintain at all times during the term of the Agreement and require all suppliers, agents, and subcontractors to obtain and maintain at all times during the term of the Agreement such adequate health, auto, workers' compensation, unemployment compensation, disability, liability, and other insurance, as is required by law or as is the common practice in Seller’s trade or business. Seller will include Footprint as an additional insured on its relevant policies. Upon request, Seller will provide Footprint with certificates evidencing coverage.

11. RECORDS.

Seller will maintain complete and accurate records relating to the Agreement, including records of the time spent and materials used. During the term of the Agreement and for a period of five (5) years thereafter, upon Footprint’s written request, Seller will allow Footprint to inspect and make copies of such records.

12. CONFIDENTIALITY.

This Section will apply to the extent that the Parties are not otherwise subject to an active non-disclosure agreement that would govern the disclosure of Confidential Information with respect to the Goods or Services. “Confidential Information” means all non-public information that a Party knows or should reasonably know is confidential or proprietary. Confidential Information includes any information disclosed by one Party to the other Party, either directly or indirectly in writing, orally or by inspection of tangible or intangible objects or places (including, without limitation, intellectual property, trade secrets, research, product plans, products, services, equipment, customers, markets, software, inventions, processes, designs, drawings, hardware configuration information, pricing, marketing, business and financial information, and plans, prototypes, samples, data sets, or business premises), whether or not designated as “confidential” at the time of disclosure, and all notes, compilations and analyses relating thereto or derived therefrom. Confidential Information does not include any information that: (i) is or becomes publicly available without breach of the Agreement; (ii) can be shown by documentation to have been known to a Party at the time of its receipt from the other Party; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed without reference to the Confidential Information. Neither Party will disclose, use, modify, copy, reproduce or otherwise divulge Confidential Information of the other, except as required by law or in furtherance of the Agreement. Each Party will take reasonable measures to avoid disclosure, dissemination, or unauthorized use of Confidential Information, including, at a minimum, those measures taken to protect its own Confidential Information of a similar nature. Because of the unique and proprietary nature of the Confidential Information, it is understood and agreed that remedies at law for a breach of the obligations under this Section may be inadequate and that the owner of Confidential Information will be entitled to equitable relief (including without limitation provisional and permanent injunctive relief and specific performance) without the requirement to post any bond in addition to any other remedies. The obligations in this Section survive the expiration or termination of the Agreement.

13. OWNERSHIP OF WORK PRODUCT.

“Work Product” includes, without limitation, all designs, discoveries, creations, works, devices, masks, models, work in progress, deliverables, inventions, products, intellectual property, technologies, processes, computer programs, procedures, improvements, developments, drawings, notes, documents, information, and materials made, conceived, or developed by Seller alone or with others which result from or relate to the Goods or Services. All Work Product is and will remain the sole and exclusive property of Footprint. Seller hereby agrees to irrevocably assign and transfer to Footprint and does hereby assign and transfer to Footprint all of its worldwide right, title and interest in and to the Work Product including all associated intellectual property rights. Footprint will have the sole right to determine the treatment of any Work Product including, without limitation, the right to keep it as trade secret, execute and file patent applications on it, to use and disclose it without prior patent application, to file registrations for copyright or trademark in its own name or to follow any other procedure that Footprint deems appropriate. Seller agrees: (i) to disclose promptly in writing to Footprint all Work Product in its possession; (ii) to assist Footprint in every reasonable way, at Footprint’s expense, to secure, perfect, register, apply for, maintain, and defend for Footprint’s benefit all copyrights, patent rights, mask work rights, trade secret rights, and all other proprietary rights or statutory protections in and to the Work Product in Footprint’s name as it deems appropriate; and (iii) to otherwise treat all Work Product as Footprint Confidential Information as described above. These obligations to disclose, assist, execute, and keep confidential survive the expiration or termination of the Agreement. All tools, equipment drawings, or other items furnished or otherwise made available by Footprint to Seller remain the sole property of Footprint. Seller will ensure that Seller's suppliers, agents, and subcontractors appropriately waive any and all claims and assign to Footprint any and all rights or any interests in any Work Product or original works created in connection with the Agreement. Seller irrevocably agrees not to assert against Footprint or its direct or indirect customers, assignees, or licensees any claim of any intellectual property rights of Seller affecting the Work Product. Footprint will not have rights to any works conceived or reduced to practice by Seller which were developed entirely on Seller’s own time without using Footprint’s equipment, supplies, facilities, input, or trade secrets or Footprint Confidential Information, unless such works relate to Footprint’s business, or Footprint's actual or demonstrably anticipated research or development, or such works result from any Services performed by Seller for Footprint. Except as expressly provided in this Section, Seller hereby assigns, and will ensure that all Seller personnel assign, to Footprint all intellectual property or intellectual property rights that Seller and such personnel have in any Work Product (including all “moral rights”, and where such assignment of moral rights is prohibited by applicable law, Seller hereby waives and covenants, and will ensure that all personnel waive and covenant, not to assert such rights it may have in the improvements, even after the termination of the Agreement), such assignment will be deemed to occur automatically whenever such automatic assignment is legally valid and binding and in all other cases Seller will ensure that such assignment occurs in a valid and legally binding manner at the earliest time possible.

14. COMPLIANCE WITH LAWS AND POLICIES.

a) General. Seller will comply with all applicable laws, rules, regulations, standards, and ordinances. Seller will refrain from any activity in connection with the Agreement that would constitute a violation by Footprint of the provisions of the Foreign Corrupt Practices Act (“FCPA”), the UK Bribery Act, the Export Administration Regulations, US Anti-Boycott regulations, and various US economic sanctions programs concerning certain countries and individuals administered by the US Treasury Office of Foreign Assets Control, or other applicable law regardless of U.S. jurisdiction over such activity.

b) Privacy. Seller will abide by the Footprint Privacy Policy made available to Seller, as amended from time to time.

c) Supplier Code of Conduct. Seller will comply with the Supplier Code of Conduct made available to Seller, as amended from time to time.

15. INDEMNITY.

Seller will indemnify, defend, and hold harmless Footprint and its subsidiaries, affiliates, successors, and assigns and each of its and their respective directors, officers, shareholders, employees, and agents from and against all claims, liabilities, damages, losses, penalties, fines, expenses, or other costs of any nature whatsoever (including, but not limited to, reasonable expenses, attorney’s fees, court costs, investigations, litigation and settlement of any such claims) arising out of or in any way connected with (i) the Goods or Services; (i) any breach of any term, representation or warranty contained in the Agreement; (iii) any act or omission or willful misconduct of Seller or any Seller’s suppliers, agents, or subcontractors; and (iv) any claim that the use or possession of Goods or Services infringes or misappropriates any patent, copyright, trade secret, or other intellectual property right of any third party. Seller will not enter into any settlement that requires Footprint to pay any amount or make any admission, without Footprint’s prior written consent.

16. LIMITATION OF LIABILITY.

IN NO EVENT WILL FOOTPRINT’S LIABILITY FOR DIRECT DAMAGES TO SELLER OR SELLER’S SUPPLIERS, AGENTS, OR SUBCONTRACTORS, OR ANY THIRD PARTY EXCEED THE VALUE OF THE SPECIFIC GOODS OR SERVICES THAT IS THE SUBJECT MATTER OF THE DISPUTE. FURTHER, IN NO EVENT, REGARDLESS OF LEGAL THEORY, WILL FOOTPRINT BE LIABLE TO SELLER OR SELLER’S SUPPLIERS, AGENTS, OR SUBCONTRACTORS OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THE AGREEMENT, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

17. FORCE MAJEURE.

Neither Party will be liable for any failure or delay in performance, to the extent that such failure or delay is caused by circumstances beyond its reasonable control and which makes such performance commercially impractical (“Force Majeure Event”). The Party asserting the existence of a Force Majeure Event must use diligent efforts to end and minimize the impact of the Force Majeure Event on the other Party and will resume performance of its obligations as soon as reasonably practicable after the removal of the cause. If a Force Majeure Event remains uncured for more than ten (10) days, the Party not asserting the Force Majeure Event may terminate the Agreement.

18. TERMINATION.

a) Mutual. Either Party may terminate an Agreement if (i) the other Party breaches any material term of the Agreement and fails to cure such breach within thirty (30) days’ written notice from the non-breaching Party; or (ii) immediately if the other Party files a petition for bankruptcy, becomes insolvent, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. In the event of such termination, Footprint will pay Seller for Goods and Services accepted by Footprint through the date of termination.

b) By Footprint. Footprint may terminate all or part of an Agreement for any other reason upon thirty (30) days written notice to Seller. Footprint will be liable to Seller only for those Goods and Services provided through the date of termination, less appropriate offsets.

c) Procedure. Upon the expiration or termination any reason: (i) each Party will be released from all obligations to the other arising after the date of expiration or termination, except for those which by their terms survive such termination or expiration; and (ii) Seller will promptly notify Footprint of all Footprint Confidential Information or any Work Product in Seller’s possession and, at the expense of Seller and in accordance with Footprint’s instructions, will promptly deliver to Footprint all such Footprint Confidential Information and Work Product.

19. Miscellaneous

a) Notices. Except for an Order which may be electronically transmitted, all notices, and other communications will be in writing and considered given when: (i) delivered personally; (ii) sent by commercial overnight courier with written verification receipt; or (iii) five (5) days after having been sent, postage prepaid, by first class or certified mail. When providing notice to Footprint, Seller must also send an electronic copy to legal@footprintus.com.

b) Severability. If any provision of the Agreement is be deemed invalid, illegal, or unenforceable, such invalidity, illegality, or unenforceability will not affect any other term or provision of the Agreement.

c) Assignment. Seller will not assign, delegate, transfer, or subcontract any of its rights or obligations under the Agreement without Footprint’s prior written consent. Any attempt to assign, delegation, transfer, or subcontract without such written consent will be null and void. No assignment or delegation will relieve the Seller of any of its obligations.

d) Waiver A waiver of any default or of any term or condition of the Agreement will not be deemed to be a continuing waiver or a waiver of any other default or any other term or condition.

e) Publicity. Except as required by applicable law or pursuant to the rules of any applicable securities exchange, Seller may not make any public reference to Footprint, the Agreement, or the contemplated transactions, or otherwise use Footprint’s name(s), trade name(s), logo(s), or mark(s) for any purpose without Footprint’s prior written consent.

f) Relationship of the Parties. The Parties are independent contractors. Nothing in the Agreement will be construed as creating any agency, partnership, joint venture, employment, or other relationship between the Parties, and neither Party has the authority to bind the other Party in contract or otherwise.

g) No Exclusivity. The Agreement is non-exclusive and does not prevent either Party from entering into similar or same agreements with third parties.

h) No Third-Party Beneficiaries. The Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns. Nothing express or implied will confer upon any other person or entity any legal or equitable rights, benefits, or remedies.

i) Survival. Any obligations and duties which by their nature extend beyond the expiration or termination of the Agreement will survive such expiration or termination, including those set forth in the following Sections: Warranties; Inspection, Acceptance; Insurance; Records; Confidentiality; Ownership of Work Product; Compliance with Laws and Policies; Indemnity; Limitation of Liability; Termination Procedure; and Miscellaneous.

j) Governing Law and Venue. The Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of laws principles. Any dispute, action, or proceeding arising out of or relating to the Agreement will be brought in the state or federal courts located in Maricopa County, Arizona, which will have exclusive jurisdiction.

k) Entire Agreement; Modification. The Agreement contains the entire agreement and understanding of the Parties and supersedes all prior or contemporaneous negotiations and understandings with respect to the subject matter. The Agreement may be modified only by a written document signed by duly authorized representatives of each Party.