Standard Purchasing Terms (United States) – ScaleFibre

Version 2.0 · Last updated 19 August 2026

These Standard Purchasing Terms apply to all purchases of goods and incidental services by ScaleFibre USA Inc., a Wyoming corporation incorporated under the Wyoming Business Corporation Act (Wyoming file number 2026-001908877), whose address for notices under clause 23 is 30 N Gould St Ste 62154, Sheridan, WY 82801 (the Company).

Please read these terms carefully. By accepting an Order, the Supplier agrees to be bound by them.

1. Definitions and Interpretation

1.1 Definitions

In these Conditions, the following definitions apply unless the context requires otherwise:

Acceptance means acceptance of Goods or Services by the Company in accordance with clause 8(c), and Accept and Accepted have corresponding meanings. Acceptance under these Conditions is the only acceptance for the purposes of UCC § 2-606, and the Company’s rights of revocation of acceptance under UCC § 2-608 are preserved in addition to it.
Authorized Officer means a director or officer of the Company, or any other person expressly authorized in Writing by the Company to act on its behalf for the purposes of these Conditions.
Background IP means Intellectual Property Rights that are owned or controlled by a Party or by a third party and that: (i) existed before the date of the relevant Order; or (ii) are created or acquired independently of, and not in the course of or for the purposes of, the performance of the Contract, together with any general know-how, tool, library, platform, methodology or component of a Party that is of general application and is not specifically developed for the Company under the Contract. Supplier Background IP means the Background IP of the Supplier or of its licensors, and Company Background IP means the Background IP of the Company or of the Group.
Bankruptcy Code means title 11 of the United States Code, as amended.
Business Day means a day that is not a Saturday, Sunday or legal public holiday in the State of Delaware or a Federal holiday under 5 U.S.C. § 6103.
Change Order means a written direction issued by the Company under clause 12(a) varying an Order.
Company means the ScaleFibre entity identified at the head of these Conditions, being the buyer of the Goods and Services.
Conditions means these Standard Purchasing Terms, together with any special conditions expressly agreed in Writing by an Authorized Officer.
Confidential Information has the meaning given in clause 15(a).
Contract means the contract between the Company and the Supplier for the purchase of Goods or Services, comprising these Conditions, the relevant Order and any other document expressly stated in the Order to form part of it.
Customer means any customer of the Company or of any member of the Group to whom the Goods are or may be resupplied, and includes any end user of the Goods.
Customer Delivery means delivery of the Goods by the Company or any member of the Group to a Customer.
Data Protection Law has the meaning given in clause 18(a).
Defect means any failure of the Goods or Services to comply with the warranties in clause 9(a), and Defective has a corresponding meaning.
Delivery Point means the location for delivery stated in the Order.
Force Majeure Event has the meaning given in clause 14(a).
Goods means the articles the Company agrees to buy from the Supplier under an Order, including all materials, components, software, firmware, documentation, packaging, spares and deliverables supplied with them or forming part of them, and, where clause 9(k) applies, includes Services. Goods are “goods” for the purposes of Article 2 of the UCC.
Group means the Company, its ultimate holding company, and every subsidiary of that ultimate holding company from time to time.
Insolvency Event means, in relation to a Person, that the Person: (i) is unable to pay its debts as they fall due, is insolvent within the meaning of § 101(32) of the Bankruptcy Code (that is, the sum of its debts exceeds the fair value of its property, exclusive of fraudulently transferred property and exempt property), or admits in writing its inability to pay its debts; (ii) suspends, or threatens to suspend, payment of its debts, or commences negotiations with, or makes any composition, compromise, general assignment for the benefit of creditors or arrangement with, all or any class of its creditors otherwise than for the sole purpose of a solvent amalgamation or reconstruction; (iii) commences a voluntary case under § 301 of the Bankruptcy Code, or has an involuntary case commenced against it under § 303 of the Bankruptcy Code that is not dismissed within sixty (60) days, in each case under chapter 7, 9, 11, 12 or 15 of the Bankruptcy Code, or becomes subject to any application, order, resolution, notice or appointment for or in connection with its winding up, liquidation, dissolution, receivership, restructuring, reorganization or protection from creditors under the Bankruptcy Code or under any State insolvency, receivership, assignment for the benefit of creditors, or corporate dissolution statute (including 8 Del. C. §§ 291–303); (iv) has a receiver, custodian, trustee, assignee for the benefit of creditors, liquidator or analogous officer appointed over it or over the whole or any material part of its assets, or any Person becomes entitled to make such an appointment; (v) has any of its assets attached, levied on, garnished, sequestered, distrained, or taken possession of by a creditor or lienholder, where the process is not discharged within fourteen (14) days; (vi) makes a transfer voidable as a fraudulent transfer under § 548 of the Bankruptcy Code or under the Uniform Voidable Transactions Act or Uniform Fraudulent Transfer Act as enacted in any State; (vii) suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or (viii) becomes subject to any event or proceeding in any jurisdiction having an effect equivalent or similar to any of the foregoing. The exercise of any right by reference to an Insolvency Event is subject to clause 13(h).
Intellectual Property Rights means all industrial and intellectual property rights, whether registered or unregistered, comprising or relating to patents, utility models, trade marks, service marks, trade names, trade dress, copyright and neighboring rights (including in software, firmware and documentation), database rights, mask work and semiconductor topography rights (including under 17 U.S.C. §§ 901–914), trade secrets (including under the Defend Trade Secrets Act, 18 U.S.C. §§ 1836 et seq., and the Uniform Trade Secrets Act as enacted in any State), know-how, confidential information, domain names, works of authorship, designs, models and inventions, together with all applications, registrations, renewals, extensions and rights of action related to any of them under the laws of any jurisdiction in the world.
IP Claim has the meaning given in clause 16(g).
Order means a purchase order issued by the Company (whether on paper, by email or through an electronic procurement system) for the supply of Goods or Services, including any Change Order.
Party means a party to the Contract, being either the Company or the Supplier, and Parties means both of them.
Person includes a natural person and any corporate or unincorporated body, whether or not having separate legal personality.
Personal Information has the meaning given in clause 18(a).
Price means the price for the Goods or Services stated in the Order, which is inclusive of all charges for materials, manufacture, testing, certification, packaging, packing, marking, reels, drums, pallets, loading, carriage, freight, insurance, unloading and delivery to the Delivery Point, and of all customs duties, tariffs, import fees, merchandise processing and harbor maintenance fees, customs broker charges, licenses and levies, but exclusive of any sales, use or other indirect tax properly chargeable under clause 3(e).
Recall means any recall, withdrawal, retrofit, field notice, safety notice, corrective action plan or advisory in respect of Goods, whether required by a regulator, initiated by the Company, or initiated by the Supplier, and includes any corrective action agreed with or ordered by the Consumer Product Safety Commission under § 15 of the Consumer Product Safety Act (15 U.S.C. § 2064).
Removal Costs means the reasonable and properly incurred costs of identifying, locating, retrieving, removing, de-installing, disconnecting, transporting and returning Defective Goods or Goods subject to a Recall, of supplying and installing replacement Goods, of re-terminating, re-splicing, re-testing and re-commissioning them, of making good any land, building, structure, pit, pole, duct, conduit or right of way disturbed in doing so, and of the Company’s reasonable internal labor and administration in doing any of those things.
Restricted Party means any Person that is the target of, designated under, or owned fifty percent (50%) or more in the aggregate, or otherwise controlled, by one or more Persons designated under, any Trade Controls, including any Person named on a restricted party, denied party, entity, blocked person, sanctioned person, unverified, military end user or debarment list maintained by any Sanctions Authority.
Sanctions Authority means any governmental or supranational authority administering Trade Controls, including the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC), the U.S. Department of Commerce Bureau of Industry and Security (BIS), the U.S. Department of State Directorate of Defense Trade Controls (DDTC), U.S. Customs and Border Protection (CBP), and the United Nations Security Council, the European Union, the United Kingdom (OFSI and the Export Control Joint Unit) and the Australian Department of Foreign Affairs and Trade to the extent their measures apply to the Company or the Group. The lists that must be screened include the OFAC Specially Designated Nationals and Blocked Persons (SDN) List, the OFAC Sectoral Sanctions Identifications (SSI) List, the OFAC Non-SDN Chinese Military-Industrial Complex Companies (NS-CMIC) List, the OFAC Foreign Sanctions Evaders List, the BIS Entity List, Denied Persons List, Unverified List and Military End User List (15 C.F.R. Part 744, Supplements 4, 6 and 7), the DDTC Debarred Parties List, the UFLPA Entity List, the System for Award Management (SAM) Exclusions list, and the consolidated screening list published by the U.S. Government at trade.gov.
Services means the incidental services the Company agrees to buy from the Supplier under an Order in connection with the supply of Goods, being manufacturing, processing, testing, inspection, certification, calibration, packing, freight, transport, warehousing and other logistics services, and the repair, rework or refurbishment of Goods carried out at the Supplier’s or a sub-tier supplier’s premises, together with all deliverables produced in the course of performing them. The Company does not procure, and Services do not include, installation, construction, erection, splicing, termination, commissioning, alteration, repair or maintenance work performed at any site of the Company, of a Customer or of any third party, or any other on-site or construction work.
Specification means, for any Goods or Services, the specification, datasheet, drawing, sample, standard, statement of work or other description identified in or referred to in the Order and, to the extent not inconsistent with it, the Supplier’s own published specification or datasheet for those Goods or Services current at the date of the Order.
Supplier means the Person to whom the Order is addressed, being the seller of the Goods and Services.
Supplier Personnel means the Supplier’s employees, officers, agents, contractors, subcontractors and their respective personnel engaged in performing the Contract.
Trade Controls has the meaning given in clause 17(b).
UCC means the Uniform Commercial Code as in effect from time to time in the State of Delaware (title 6 of the Delaware Code) and, where the context requires the law of another State to be applied, the Uniform Commercial Code as in effect in that State. A reference to a section number is a reference to the corresponding section of that enactment.
Warranty Period has the meaning given in clause 9(b).
Written or Writing, and any similar expression, includes electronic mail and any other form of written electronic communication, and excludes any communication made solely through an electronic portal operated by the Supplier unless the Company has agreed in Writing to accept notices by that means. A Writing that is an electronic record satisfies any requirement of law for a writing, and constitutes a “record” and a “writing” for the purposes of the UCC, the Electronic Signatures in Global and National Commerce Act (15 U.S.C. §§ 7001–7031) and the Uniform Electronic Transactions Act as enacted in the State of Delaware (6 Del. C. §§ 12A-101 et seq.).

1.2 Interpretation

(a) A reference to a Party includes its executors, administrators, successors and permitted assigns.

(b) Headings are for convenience only and do not affect interpretation.

(d) A reference to a statute, regulation, standard or code includes any modification, re-enactment or replacement of it, and any subordinate instrument, rule, order or administrative guidance made under it.

(e) The singular includes the plural and the plural includes the singular.

(f) A reference to a clause is a reference to a clause of these Conditions.

(g) A reference to a period of days is a reference to calendar days unless Business Days are specified.

(h) A reference to an amount of money is a reference to an amount in United States dollars (USD) unless the Order states otherwise.

(i) Where the Supplier gives an indemnity, that indemnity is a continuing obligation independent of the Supplier’s other obligations, survives termination or expiry of the Contract, and it is not necessary for the Company to incur expense or make payment before enforcing it.

(j) Where a right is expressed to be exercisable at the Company’s option, discretion or election, the Company may exercise it in its own commercial interest and is not obliged to have regard to the interests of the Supplier, subject to the obligation of good faith imposed by UCC § 1-304, being honesty in fact and the observance of reasonable commercial standards of fair dealing, which the Parties do not and cannot disclaim.

(k) An obligation of the Supplier to do or not do a thing includes an obligation to procure that Supplier Personnel do or do not do that thing.

(l) No rule of construction, including the doctrine of contra proferentem, operates to the disadvantage of a Party because that Party was responsible for preparing these Conditions.

2. Order Formation and Acceptance

(a) Application. These Conditions apply to all purchases of Goods and Services by the Company from the Supplier and govern the Contract to the exclusion of all other terms, including any terms the Supplier purports to apply under any quotation, acknowledgment, order confirmation, delivery note, invoice, packing slip, website, portal, click-wrap, browse-wrap, shrink-wrap or other document or medium. Each Order incorporates these Conditions by reference, and clause 24(o) identifies the version of these Conditions that applies to it.

(b) Order is an offer. Each Order is an offer by the Company to purchase the Goods or Services specified in it on these Conditions. ACCEPTANCE OF AN ORDER IS EXPRESSLY LIMITED TO, AND EXPRESSLY MADE CONDITIONAL ON THE SUPPLIER’S ASSENT TO, THESE CONDITIONS AND NO OTHERS.

(i) the Supplier issuing Written acceptance of the Order; and

(ii) the Supplier commencing performance of the Services, or dispatching or delivering any of the Goods, which is an acceptance by a performance that is a reasonable mode of acceptance for the purposes of UCC § 2-206(1)(b).

If the Supplier does not reject the Order in Writing within three (3) Business Days of the date of the Order, that failure is evidence, and the Parties agree it gives rise to a rebuttable presumption, that the Supplier has accepted the Order by a means reasonable in the circumstances for the purposes of UCC § 2-206(1)(a). That presumption is evidentiary only; it does not itself form a Contract, and it may be displaced by proof that the Supplier did not accept the Order.

(d) Conflicting terms — UCC § 2-207. Any term proposed by the Supplier that is additional to, different from, or inconsistent with these Conditions is expressly rejected, and does not form part of the Contract, whether or not it materially alters these Conditions, unless expressly accepted in Writing by an Authorized Officer. The Parties record that the battle of the forms is governed by UCC § 2-207 (6 Del. C. § 2-207), and that:

(i) the Company’s Order expressly limits acceptance to these Conditions and expressly conditions the Company’s assent on the Supplier’s assent to these Conditions, so that no acceptance operates under UCC § 2-207(1) to add or vary any term;

(ii) this clause 2(d) constitutes notification of objection to all additional and different terms, given in advance and within the meaning of UCC § 2-207(2)(c), and each additional or different term is also rejected as materially altering the Contract under UCC § 2-207(2)(b); and

(iii) where a Contract is nevertheless found to arise by conduct under UCC § 2-207(3), the terms of that Contract are these Conditions together with any supplementary terms supplied by the UCC, and no term of the Supplier is incorporated.

Neither the Company’s acceptance of Goods or Services, nor its payment of any invoice, nor its use of any portal or system operated by the Supplier, constitutes assent to any term of the Supplier.

(e) Supplier documents of no effect. Any automated acknowledgment of receipt does not constitute acceptance. Any delivery note, invoice, order acknowledgment, packing slip, portal terms or click-wrap agreement issued or presented by the Supplier that contains or refers to the Supplier’s terms is of no effect and is expressly rejected. Where the Supplier gives the Company access to a portal, the Company’s use of that portal does not bind the Company to any terms presented in it, and no Supplier Personnel or agent of the Company has authority to manifest assent to any such terms by clicking, logging in or otherwise.

(f) Variation. No variation of the Contract or these Conditions is binding unless agreed in Writing and signed by an Authorized Officer, and any Change Order is subject to clause 12. The Parties exclude the operation of any rule that a course of performance, course of dealing or usage of trade may vary these Conditions, to the fullest extent permitted by UCC § 1-303.

(g) Authority and descriptive matter. No employee, agent or representative of the Company other than an Authorized Officer has authority to make any representation, warranty or statement, or to vary these Conditions, and the Supplier may not rely on any such representation, warranty or statement unless confirmed in Writing by an Authorized Officer. All descriptive matter, drawings, images, weights, dimensions, forecasts and other information provided by the Company are approximate and indicative only, and do not form part of the Contract unless expressly incorporated into the Order.

(h) Errors. Any typographical, clerical or other error or omission in any Order, acceptance, invoice or other document issued by the Company may be corrected by the Company without liability on its part.

(i) Cumulative rights and waiver. The Company’s rights and remedies under these Conditions are cumulative and without prejudice to any other right or remedy available to it at law or in equity, including every remedy of a buyer under Part 7 of Article 2 of the UCC. No waiver by the Company of any breach is a waiver of any subsequent breach, and any waiver must be in Writing and signed by an Authorized Officer.

(j) Severability. If any provision of these Conditions is held invalid or unenforceable in whole or in part, the validity of the remaining provisions and of the remainder of that provision is unaffected.

(k) No commitment beyond the Order. Forecasts, schedules, planning data and indications of future requirements given by the Company are for the Supplier’s planning only, create no commitment to purchase, and do not entitle the Supplier to procure materials or commence work. The Company is bound only as to the quantities and deliverables stated in an Order. Nothing in the Contract grants the Supplier exclusivity or any minimum volume, and no Contract is a requirements or output contract for the purposes of UCC § 2-306 unless the Order expressly says so.

(l) Statute of frauds. Each Order, together with these Conditions, is a writing sufficient to indicate that a contract for sale has been made and to satisfy UCC § 2-201 and any other applicable statute of frauds. Nothing in this clause obliges the Company to sign any document of the Supplier.

3. Price, Taxes and Duties

(a) Firm price. The Price is as stated in the Order and is firm and fixed for the duration of the Contract. The Supplier may not increase the Price to reflect any increase in the cost of labor, materials, energy, components, freight, currency movement, duty, tariff (including any duty imposed under section 232 of the Trade Expansion Act of 1962, section 301 of the Trade Act of 1974, or the International Emergency Economic Powers Act) or any other cost of manufacture or supply without the express Written consent of an Authorized Officer.

(b) Inclusive price. The Price is inclusive of everything the Supplier requires to perform the Contract, including all items listed in the definition of Price. The Company is not liable for any handling charge, documentation fee, minimum order value, small order surcharge, fuel surcharge, currency surcharge, tariff surcharge or other charge of any kind unless it is specifically stated in the Order.

(c) Quotations. Any quotation, proposal, price list or catalog issued by the Supplier does not constitute an offer capable of acceptance, and the Order is the only governing document as to price. The Company may update or amend its requirements at any time before the Order is accepted under clause 2(c).

(d) Competitive pricing. The Supplier warrants that the Price is no less favorable to the Company than the price the Supplier charges any other customer of comparable volume and specification. If the Supplier offers a lower price for comparable Goods or Services during the term of the Contract, the Supplier must notify the Company and the lower price applies to all Orders not yet delivered. Nothing in this clause 3(d) requires the Supplier to grant, or the Company to solicit, induce or knowingly receive, any price, discount, allowance or service that would contravene the Robinson-Patman Act (15 U.S.C. §§ 13–13b, 21a), and the Supplier may satisfy this clause by demonstrating that a lower price to another customer is cost-justified, is a good faith meeting of competition, or is otherwise lawfully available to the Company on the same terms.

(e) Sales and use tax. The Price is exclusive of any sales, use, excise, gross receipts, telecommunications or similar indirect transaction tax properly chargeable on the supply. Accordingly:

(i) the Supplier must state any sales or use tax it is required to collect as a separate line item on its invoice, identifying the taxing jurisdiction and the Supplier’s registration or permit number, and must not charge tax on any transaction for which the Company has furnished a valid exemption, resale or direct pay certificate;

(ii) where the Goods are acquired for resale, or for incorporation into property to be resold, the Company will furnish a resale exemption certificate in the form prescribed by the relevant State or the Multistate Tax Commission Uniform Sales & Use Tax Exemption/Resale Certificate, or a direct pay permit, and the Supplier must accept it in good faith and must not collect tax on the exempt supply;

(iii) the Supplier is responsible for determining and discharging its own registration, collection, remittance and nexus obligations following South Dakota v. Wayfair, Inc., 585 U.S. 162 (2018), and indemnifies the Company against any tax, interest or penalty assessed against the Company because the Supplier failed to collect or remit tax it was required to collect or remit, or wrongly collected tax the Company was not liable to pay;

(iv) the Supplier must furnish a completed IRS Form W-9 or, where the Supplier is a foreign person, the applicable IRS Form W-8 series certificate (including Form W-8BEN-E), before the first payment. The Company may withhold and remit any amount required under chapters 3, 4 or 61 of the Internal Revenue Code, and any amount so withheld is treated as paid to the Supplier. The Supplier must provide any treaty claim, US taxpayer identification number and documentation needed to reduce or eliminate withholding; and

(v) the Supplier is responsible for all taxes on its own income, property, personnel and operations, and for all withholding obligations arising in its own jurisdiction.

(f) Duties, tariffs and levies. The Price is inclusive of all customs duties, tariffs, antidumping and countervailing duties, section 201 safeguard measures, section 232 and section 301 duties, merchandise processing and harbor maintenance fees, import fees, customs broker charges and levies. The Supplier bears the risk of any increase in any such duty, tariff or levy taking effect after the date of the Order and may not pass any such increase to the Company. Where any such duty, tariff or levy is reduced, refunded, remitted, excluded or eliminated after the date of the Order, including by exclusion, ruling, retroactive liquidation or litigation refund, the Supplier must pass the benefit to the Company.

(g) Customs documentation. The Supplier must provide all documentation the Company requires to exercise reasonable care under 19 U.S.C. § 1484, to establish customs valuation (including first sale valuation where available), to claim any duty drawback under 19 U.S.C. § 1313, refund, remission, preferential rate, exclusion, or benefit under any free trade agreement (including the United States–Mexico–Canada Agreement), and to support any valuation or classification methodology the Company adopts, and must cooperate at its own cost with any CBP audit, Focused Assessment, CF-28 request for information, CF-29 notice of action, protest, ruling request, Enforce and Protect Act (19 U.S.C. § 1517) proceeding or other inquiry relating to the Goods.

(h) Currency. All Prices are stated and payable in United States dollars (USD) unless the Order states otherwise. The Supplier bears all currency conversion and exchange rate risk, and all bank charges other than those charged by the Company’s own bank.

(i) Substantiation. The Supplier must, on the Company’s Written request, substantiate any charge, cost claim, cancellation claim or Change Order price impact by reference to its records, and must give the Company and its advisers reasonable access to those records for that purpose.

4. Payment and Set-Off

(a) No advance payment. The Company does not pay in advance unless specifically agreed in Writing by an Authorized Officer. Where the Company agrees to pay in advance, the amount paid is held by the Supplier as a debt due to the Company, and is repayable on demand, until the relevant Goods are delivered and Accepted or the relevant Services are performed and Accepted. The Company may require a bank guarantee, standby letter of credit issued by a US bank acceptable to the Company and subject to ISP98 or UCP 600, a surety bond, or a parent company guarantee as a condition of any advance payment.

(b) Invoices. The Supplier must issue a separate invoice for each Order, after delivery, quoting the Order number, line item references, part numbers, quantities, batch or serial identifiers, delivery reference, the Supplier’s taxpayer identification number, and any other information the Company reasonably requires. An invoice that does not comply with this clause, or that relates to Goods or Services not delivered in accordance with the Contract, is not correctly rendered and the payment period does not begin to run until a compliant invoice is received.

(c) Payment terms. The Company will pay correctly rendered invoices in full and in cleared funds within sixty (60) days of the later of receipt of a correctly rendered invoice and Acceptance of the relevant Goods or Services (Net 60). Where an Order states different terms, including an early payment discount, those terms apply.

(d) Method. The Company pays by ACH or wire transfer to the bank account notified by the Supplier in Writing, or as otherwise agreed in Writing. The Company may require independent, out-of-band verification of any change to the Supplier’s bank details before making payment, and any delay attributable to that verification is not a breach of the Contract. The Supplier bears the risk of any payment misdirected as a result of a fraudulent or compromised communication originating from the Supplier’s systems or personnel.

(e) Set-off. The Company may at any time and without notice set off or deduct from any amount due to the Supplier any sum owed by the Supplier to the Company or to any member of the Group, under the Contract or any other agreement, whether present or future, liquidated or unliquidated, and whether arising by way of damages, counterclaim, debt, indemnity or otherwise. The Supplier may not set off, deduct, withhold or apply any amount against any sum owing to the Company. The Company’s right to deduct damages for breach from the price under UCC § 2-717 is preserved and is in addition to this clause. The Parties acknowledge that, if the Supplier becomes a debtor under the Bankruptcy Code, § 553 of that Code preserves only mutual pre-petition setoff rights and that a “triangular” setoff against amounts owing to another member of the Group may not be enforceable; the Supplier accordingly agrees, as a separate and independent obligation, to pay to the Company on demand any amount owing to any member of the Group, and each such amount is assigned to the Company on the Company’s Written election.

(f) Disputed amounts. Time for payment is not of the essence. The Company may withhold payment of any disputed amount, and of any amount subject to a potential set-off, counterclaim or indemnity claim, without penalty or interest until the dispute is resolved.

(g) Interest. No interest accrues on an overdue invoice except as awarded by a court of competent jurisdiction or, where arbitration is elected under clause 25(g), by an arbitral tribunal, and the Supplier is not entitled to charge or claim any penalty interest, late payment fee, debt recovery charge or collection charge. Where a court or arbitral tribunal awards interest on an overdue amount, the Parties agree that the rate of that interest is the lowest of eight percent (8%) per annum, the legal rate under 6 Del. C. § 2301 (being five percent (5%) over the Federal Reserve discount rate) and the maximum lawful rate under any applicable State usury law.

(h) No suspension for disputed payment. The Supplier may not suspend, delay, reduce or terminate the supply of Goods or Services, exercise any lien (including any warehouseman’s, carrier’s, artisan’s or repairer’s lien), right of stoppage in transit under UCC § 2-705, or right of reclamation under UCC § 2-702 or § 546(c) of the Bankruptcy Code, or withhold any documentation, tooling, data or Intellectual Property Rights, on account of any amount that the Company has withheld under clause 4(f) or set off under clause 4(e). The Supplier waives every such lien and right to the fullest extent permitted by law, and must procure a corresponding waiver from each of its subcontractors, warehousemen, carriers and material suppliers.

(i) Company’s payment-related rights. Without limiting any other right, the Company may: (i) withhold payment of any disputed part of an invoice, and of any invoice for Goods or Services not delivered or performed in accordance with the Contract; (ii) set off any liability of the Supplier to the Company, including delay charges, Removal Costs and the cost of cover under UCC § 2-712, against any invoice; and (iii) treat the Contract as terminated where the Supplier fails to deliver in accordance with the agreed schedule.

(j) Assignment of receivables and UCC § 9-406. The Supplier must not assign, factor, discount, securitize, pledge or otherwise deal with any receivable owing to it under the Contract without the Company’s prior Written consent. The Parties acknowledge that UCC § 9-406(d) renders a term of this kind ineffective as against an assignee of an account or a payment intangible, and that no assignment prohibited by this clause constitutes a default or gives rise to a remedy to the extent of that section. Accordingly: (i) the Company is not obliged to pay any Person other than the Supplier unless and until it receives an authenticated notification of assignment complying with UCC § 9-406(a) and (b), together with proof of the assignment reasonably satisfactory to the Company; (ii) every claim, defense, recoupment and right of set-off the Company has against the Supplier, whether arising before or after notification, is available against any assignee to the fullest extent permitted by UCC §§ 9-404 and 9-406, and the Supplier must ensure that no assignee takes free of them; (iii) the Supplier must give the Company at least ten (10) Business Days’ prior Written notice of any proposed assignment, factoring or supply chain finance arrangement; and (iv) the Supplier must not enter into any arrangement that requires the Company to give any waiver, acknowledgment, direct undertaking or confirmation of an undisputed receivable.

5. Specification, Tolerances and Quality

(a) Conformity. The Goods and Services must conform in all respects to the Specification, to any sample or pre-production approval given by the Company, and to all applicable standards identified in the Order. The Parties agree that the perfect tender rule in UCC § 2-601 applies without qualification, and that any Goods or tender of delivery that fails in any respect to conform to the Contract may be rejected under clause 8.

(b) Company-directed amendment. The Company may from time to time require the Supplier to amend the Specification where required to comply with any applicable safety or statutory requirement, or where the amendment does not materially affect the quality, cost or fitness for purpose of the Goods. To the fullest extent permitted by law, the Company has no liability to the Supplier for any loss arising in connection with such an amendment.

(c) No unilateral change. The Supplier must not, without the Company’s prior Written consent: (i) change the design, materials, components, formulation, firmware or software of the Goods; (ii) change any manufacturing process, test method or quality control procedure; (iii) change the place of manufacture, assembly, test or final inspection; (iv) change any sub-tier supplier of a critical component; or (v) discontinue or supersede any Goods. The Supplier must give the Company not less than twelve (12) months’ Written notice before discontinuing any Goods, and must offer the Company a final purchase opportunity and continued supply of spares for not less than five (5) years after the last delivery. A change within (i) to (iv) that is made without consent is a material breach. A discontinuance or supersession within (v) is a material breach where it is made without consent and without compliance with the notice, final purchase and spares obligations in this clause 5(c). Where a change, discontinuance or supersession within (i) to (v) affects the country of origin, place of manufacture or a certification given to the Company, it also engages clauses 17(d), 17(e) and 17(f), whether or not the Company consented to it.

(d) Length tolerance. Unless the Order states otherwise, cable must be supplied within a length tolerance of −0% to +2% of the ordered length. The Supplier must invoice on the actual length supplied and may not invoice for any length exceeding the stated tolerance without the Company’s prior Written consent. Any length supplied in excess of the tolerance is supplied at the Supplier’s risk and cost. Any usage of trade or course of dealing permitting a commercially reasonable variation in quantity is excluded to the extent inconsistent with this clause.

(e) Length marking and applicable standards. Cable must be sequentially length-marked in accordance with the standard specified in the Order, and marked lengths must be accurate within the tolerance in clause 5(d). Unless the Order specifies otherwise, the applicable standards are: Telcordia GR-20-CORE (generic requirements for optical fiber and optical fiber cable) and ANSI/ICEA S-87-640 (outside plant optical fiber cable), including their sequential length marking requirements, marked in both feet and meters; ANSI/ICEA S-104-696 for indoor-outdoor cable; ANSI/TIA-598-D for optical fiber color coding; ANSI/TIA-568 series for premises cabling; and, for any Goods intended for a project financed by the USDA Rural Utilities Service, the applicable RUS specification listed at 7 C.F.R. § 1755.900 and RUS Bulletin 1753F-601. Sheath marking must include the manufacturer’s identification, year of manufacture, fiber count and type, and the applicable National Electrical Code (NFPA 70) listing designation under Article 770 (for example OFN, OFNR, OFNP, OFNG or the corresponding conductive designation), together with the mark of a Nationally Recognized Testing Laboratory (“NRTL”) recognized by OSHA under 29 C.F.R. § 1910.7 evidencing listing to UL 1651 or UL 444 as applicable.

(f) Quality system. The Supplier must maintain a documented quality management system appropriate to the Goods and Services, certified to ISO 9001 or, where the Order requires, TL 9000, must operate documented incoming inspection, in-process control, final inspection and calibration procedures traceable to NIST or another national metrology institute, and must notify the Company promptly of any loss, suspension or material adverse change to any certification, listing or accreditation held.

(g) Inspection and audit access. The Supplier must, on reasonable notice, give the Company, its Customers, its advisers and any regulator access to any premises at which the Goods are manufactured, tested, stored or handled, and to the relevant personnel, records, processes and quality data, for the purpose of inspecting, testing, auditing or verifying compliance with the Contract. The Supplier must procure equivalent access rights in respect of its sub-tier suppliers. No inspection, audit, test, approval or failure to exercise any of those rights relieves the Supplier of any obligation or limits any right of the Company, and no such inspection or approval constitutes Acceptance for the purposes of UCC § 2-606.

(h) Testing and certification. The Supplier must carry out the tests required by the Specification and by good industry practice, and must supply with each delivery the test results, factory acceptance test records, certificates of conformity and calibration records required by the Order. Where the Order requires first article inspection or pre-production sample approval, the Supplier must not commence production until the Company has given Written approval, and that approval does not constitute Acceptance or relieve the Supplier of any warranty obligation.

(i) Records. The Supplier must retain all production, test, inspection, traceability, quality and sub-tier records relating to the Goods for not less than ten (10) years after the last delivery, and must provide copies to the Company on request within five (5) Business Days. Where any Goods are supplied for a project funded in whole or in part with federal financial assistance, the Supplier must also comply with the record retention and access requirements of 2 C.F.R. § 200.334 and § 200.337, and with any longer period required by the funding award.

6. Packaging, Labeling and Documentation

(a) Packaging. The Goods must be packed, protected, palletized, reeled or drummed so as to reach the Delivery Point undamaged and in good condition, to withstand the anticipated mode and duration of transport, handling and storage, and to permit safe mechanical handling. Packaging must comply with the Order and with all applicable transport, quarantine, timber treatment and packaging waste requirements, including:

(i) ISPM 15 heat treatment or fumigation and marking of all wood packaging material, as enforced by USDA APHIS and CBP under 7 C.F.R. § 319.40 and 7 C.F.R. § 319.40-3;

(ii) the declaration requirements of the Lacey Act (16 U.S.C. §§ 3371–3378) for any plant or wood product, including the filing of a PPQ Form 505 declaration where required;

(iii) the Toxics in Packaging heavy metal restrictions enacted by the States that have adopted the Toxics in Packaging Clearinghouse model (restricting lead, cadmium, mercury, hexavalent chromium, PFAS and ortho-phthalates in packaging and packaging components), and the Supplier must furnish a certificate of compliance on request;

(iv) State extended producer responsibility statutes for packaging, including Maine 38 M.R.S. § 2146, Oregon SB 582 (ORS ch. 459A), Colorado HB22-1355 (C.R.S. § 25-17-1001 et seq.), California SB 54 (Pub. Res. Code § 42041 et seq.), Minnesota and Maryland, and the Supplier must provide the material composition, weight and recyclability data the Company needs to make any producer report; and

(v) any warning required under California Proposition 65 (Cal. Health & Safety Code § 25249.6) in the form prescribed by 27 C.C.R. §§ 25601–25607.

The Supplier must comply with the packaging, packaging waste and producer responsibility requirements of each State of delivery and of onward resupply notified by the Company.

(b) Reels, drums and returnable packaging. Reels, drums, pallets and other packaging are included in the Price and become the property of the Company on delivery, unless the Order identifies them as returnable and states the return terms and any credit. The Company is not liable for any reel, drum or pallet deposit, hire, demurrage, detention or non-return charge unless it is stated in the Order.

(c) Labeling and marking. Each package, reel, drum and unit must be legibly and durably marked with the Order number, the Company’s part number, the Supplier’s part number, the description, the quantity or length, the batch, lot, reel or serial identifier, the date of manufacture, the country of origin in accordance with clause 17(d), and all handling, storage, lifting and safety markings required by the Order or by law, including any FCC identifier or Supplier’s Declaration of Conformity marking required under 47 C.F.R. Part 2, any NRTL listing mark, and any laser product label required under 21 C.F.R. § 1040.10.

(d) Documentation. Each delivery must be accompanied by a packing note quoting the Order number and identifying the contents by line item, and by all certificates of conformity, test results, calibration records, installation and maintenance instructions, warranty documentation, Safety Data Sheets in the 16-section format required by the OSHA Hazard Communication Standard (29 C.F.R. § 1910.1200(g)), declarations of conformity, origin declarations and regulatory markings required by the Order or by law. Where any document is required to be supplied to a Customer with the Goods, the Supplier must supply it in a form suitable for onward supply.

(e) Dangerous goods and hazard communication. Where any Goods are classified as hazardous, dangerous or restricted for transport, the Supplier must classify, pack, mark, label, placard, document and declare them in accordance with: the U.S. DOT Hazardous Materials Regulations, 49 C.F.R. Parts 100–185, and the shipper training requirements of 49 C.F.R. Part 172 Subpart H; the ICAO Technical Instructions and IATA Dangerous Goods Regulations for air transport; and the IMDG Code for ocean transport. The Supplier must also comply with the OSHA Hazard Communication Standard, 29 C.F.R. § 1910.1200, as aligned with the Globally Harmonized System, and with the Toxic Substances Control Act (15 U.S.C. §§ 2601 et seq.), including the § 13 import certification under 19 C.F.R. § 12.121. The Supplier must notify the Company in Writing before dispatch of any Goods so classified, including any lithium battery, laser product or aerosol.

(f) Discrepancies. Any discrepancy between the Goods delivered and the packing note, or between either of them and the Order, must be rectified by the Supplier at its own cost immediately upon notification by the Company.

(g) Non-conforming packaging. Failure to comply with this clause 6 is a failure of the tender of delivery to conform to the Contract for the purposes of UCC § 2-601, and the Company may reject the delivery under clause 8, or require the Supplier to re-pack, re-label or re-document at the Supplier’s cost, and may recover from the Supplier all costs it incurs in doing so itself.

7. Delivery, Title and Risk

(a) Time of the essence. The Supplier must deliver the Goods and perform the Services on the date or within the period stated in the Order. Time of delivery and of performance is of the essence.

(b) Delivery basis. Unless the Order states otherwise:

(i) for cross-border shipments, Goods are supplied Delivered Duty Paid (DDP), Incoterms® 2020, at the Delivery Point named in the Order, and the named place convention is the full street address of the Delivery Point;

(ii) for shipments moving wholly within the United States, Goods are supplied F.O.B. Destination, freight prepaid and allowed, to the Delivery Point named in the Order, being a destination contract for the purposes of UCC §§ 2-319(1)(b) and 2-503(3), so that the Supplier bears the expense and risk of putting the Goods into the possession of the carrier, of the carriage, and of tendering delivery at the Delivery Point; and

(iii) where an Order uses “FOB” without expressly invoking Incoterms® 2020, UCC § 2-319 applies and “FOB” means F.O.B. Destination. Where an Order expressly invokes an Incoterms® 2020 rule, that rule prevails over UCC § 2-319 for the purposes of cost and risk allocation, but does not displace clause 7(g) as to the passing of title.

The Supplier is responsible for the cost of loading, carriage, insurance, customs clearance, importer of record duties (unless the Order names the Company as importer of record), duty and unloading.

(c) Delivery arrangements. Delivery must be made to the Delivery Point during the receiving hours stated in the Order or otherwise notified by the Company in Writing, in accordance with any booking, appointment, access or safety requirement notified by the Company for the receipt of deliveries at the Delivery Point. Delivery outside those arrangements may be refused at the Supplier’s cost and risk.

(d) Quantity and timing. The Supplier must not deliver early, late, short or in excess without the Company’s prior Written consent. Goods delivered early may be refused, or accepted and stored at the Supplier’s risk and cost with payment falling due as if delivered on the due date. Goods delivered in excess of the ordered quantity may be returned at the Supplier’s risk and cost, and the Company is not obliged to pay for them. The Company’s acceptance of any part of a non-conforming tender does not constitute acceptance of the balance for the purposes of UCC § 2-601(c).

(e) Installments. The Company may require delivery by installments. The Parties expressly vary UCC § 2-612 to the maximum extent permitted by UCC § 1-302: each installment must conform in all respects to the Contract, the Company may reject any non-conforming installment whether or not the non-conformity substantially impairs the value of that installment, and a non-conforming installment substantially impairs the value of the whole Contract. Each installment is nevertheless part of a single Contract, and failure by the Supplier to deliver any one installment in accordance with the Contract entitles the Company to terminate the whole Contract. The Company’s acceptance of any installment is not a reinstatement of the Contract for the purposes of UCC § 2-612(3).

(f) Late delivery and delay charges. If the Supplier fails to deliver by the due date, then, without limiting any other right, the Company may: (i) terminate the Contract or the affected part of it immediately by Written notice; (ii) recover from the Supplier the costs and expenses of cover under UCC § 2-712, being replacement goods or services of similar description and quality, including any excess over the Price, expedited freight and internal costs, together with incidental and consequential damages under UCC § 2-715; and (iii) recover any loss it suffers under any contract with a Customer as a result of the delay, the Parties agreeing that the Company’s resupply of the Goods to Customers is known to the Supplier and that such loss is within the contemplation of the Parties.

A delay charge is payable only where the Order states one. Where the Order states a delay charge, that charge is payable for each week or part week of delay. Where the Order states a delay charge but does not state its rate, the rate is one half of one percent (0.5%) of the Price of the delayed Goods or Services for each week or part week of delay, capped at ten percent (10%) of the Price of the delayed Goods or Services. No delay charge is payable under an Order that does not state one, and the absence of a delay charge does not affect any other right or remedy of the Company.

The delay charge is an interim payment on account of the damages the Company suffers by reason of the delay. It is not liquidated damages, is not a pre-estimate of loss agreed in substitution for damages, is not an exclusive remedy, and does not cap or limit the Company’s recovery for the delay. Any delay charge paid or credited in respect of a delay is credited against, and reduces by the same amount, the damages the Company recovers for that same delay, so that the Company is not compensated twice for the same loss. On final assessment of the Company’s damages for that delay, whether by agreement, judgment or award, any part of the delay charge that exceeds those damages is repayable by the Company to the Supplier on demand. So that the charge operates as a payment on account and not as a sum retained in substitution for damages, the Supplier may by Written request require the Company to assess its damages for that delay. That request may be made at any time after twelve (12) months from the earliest of (A) delivery of the delayed Goods or completion of the delayed Services, (B) termination or cancellation of the affected part of the Order, and (C) the date on which delivery or performance was due under the Order, so that a continuing failure to deliver does not defer the Supplier’s right to request an assessment. Within thirty (30) days of the request the Company must either repay the delay charge in full, or notify the Supplier in Writing of the damages it assesses in good faith for that delay, with particulars sufficient to identify each head of loss and the amount attributed to it; and any part of the delay charge exceeding the amount so notified is repayable on demand. A notification under the preceding sentence does not prevent the Company from afterwards claiming or recovering damages for that delay in excess of the amount notified, but only to the extent of loss that was not, and could not reasonably have been, included in the assessment at the date of the notification. The Parties adopt that approach because the Company has a legitimate interest in timely delivery that extends beyond the Price of the delayed Goods: its loss from late delivery of outside plant fiber cable is measured by its build schedules, Customer commitments and Removal Costs exposure rather than by the price of the cable, and may substantially exceed any percentage of the Price. The Company’s other rights and remedies are preserved in full, including its rights under clauses 7(f)(i) to 7(f)(iii), clause 8, clause 10 and clause 13, and its rights in respect of any Defect, Recall, breach of clause 15, 16, 17 or 18, or any indemnity. If a court holds the delay charge unenforceable, it is severed and the Company may recover its actual damages for delay without limitation.

(g) Title and risk. Title to and risk of loss of or damage to the Goods pass to the Company on completion of delivery at the Delivery Point in accordance with UCC § 2-401(2)(b) and § 2-509(1)(b), or, where the Company has paid in advance, on the earlier of delivery and the time of payment for Goods identified to the Contract under UCC § 2-501. Passing of title and risk does not constitute Acceptance. The Company’s special property and insurable interest in identified Goods, and its rights under UCC §§ 2-501, 2-502 and 2-716(3), arise on identification and are not affected by this clause.

(h) No supplier security interest — UCC Article 9. This clause 7(h) applies only to security interests, filings and records asserting an interest of the Supplier or of a Person claiming through the Supplier, and does not limit clause 7(m). To the fullest extent permitted by law:

(i) neither these Conditions nor any Contract creates or gives rise to any security interest, retention or reservation of title, purchase money security interest, consignment, lien, charge or other encumbrance in favor of the Supplier over the Goods, over any proceeds of the Goods, or over any other property of the Company. Any reservation of title by the Supplier is limited in effect to a reservation of a security interest under UCC § 2-401(1), and that security interest is released on delivery;

(ii) the Supplier is not authorized within the meaning of UCC § 9-509 to file, and must not file, any initial financing statement (UCC-1), amendment, continuation or other record that names the Company as debtor and asserts an interest of the Supplier or of any Person claiming through the Supplier, whether with the Wyoming Secretary of State (being the filing office under UCC § 9-501(a)(2) and § 9-307(e) for a registered organization organized under the law of the State of Wyoming, the Company being so organized and therefore located in that State for the purposes of § 9-307(e)) or with any other filing office, and any such record filed is unauthorized and ineffective under UCC § 9-510(a);

(iii) if the Supplier files any such record, the Supplier must file a termination statement under UCC § 9-513 within five (5) Business Days of Written demand. If it does not, the Company may file a termination statement or a correction statement under UCC § 9-518, and the Supplier is liable to the Company under UCC § 9-625(b) and (e)(3) for its actual loss and for the statutory penalty of five hundred dollars ($500) for each such record, and irrevocably appoints the Company its attorney-in-fact, coupled with an interest, to sign and file any record needed to terminate it;

(iv) the Supplier’s rights as debtor under Part 6 of Article 9 do not arise under this clause 7(h); they arise under the security interest granted by clause 7(m), and are dealt with in clause 7(m)(v); and

(v) the Supplier must at its own cost promptly do anything the Company reasonably requires, including executing documents, giving information, delivering payoff letters and lien releases, and filing terminations, to ensure that any such interest is unenforceable, is subordinated to the interests of the Company and its financiers, or is removed from the relevant filing office record.

(i) Goods held before delivery. Where the Company has paid for or acquired title to Goods that remain in the Supplier’s possession, the Supplier holds them as bailee for the Company and must: (i) store them separately from all other goods so that they remain readily identifiable as the Company’s property; (ii) not remove, deface or obscure any identifying mark or packaging; (iii) maintain them in good condition and keep them insured against all risks for their full replacement value with the Company noted as loss payee; (iv) not create or permit any lien or encumbrance over them, and must obtain from any warehouseman, landlord or lender a written subordination and waiver of lien in favor of the Company; and (v) notify the Company immediately if the Supplier becomes subject to an Insolvency Event. The Supplier must place a conspicuous placard identifying the Goods as the property of ScaleFibre USA Inc., and must furnish written acknowledgment of the bailment on request.

(j) Recovery. If before delivery the Supplier becomes subject to an Insolvency Event, the Supplier’s right to deal with any Goods to which the Company has title ceases immediately, and the Company may require the Supplier to deliver them up and, failing prompt delivery up, may enter any premises of the Supplier or of any third party where they are stored in order to recover them, without breach of the peace. The Supplier must procure the consent of any third party occupier to that entry. Where the Supplier has become a debtor under the Bankruptcy Code, the Company acknowledges that the automatic stay under § 362 of that Code applies and that the Company will seek relief from stay or turnover under § 542 before exercising self-help; the Supplier agrees not to oppose any such application, agrees that Goods to which the Company holds title are not property of the estate under § 541(a), and agrees that the Company’s rights under UCC §§ 2-502 and 2-716(3) are preserved.

(k) Free issue materials and tooling. All materials, components, tooling, jigs, fixtures, patterns, dies, molds, test equipment, drawings, software and data supplied by the Company to the Supplier, and all tooling paid for by the Company whether separately or as part of the Price, are and remain the property of the Company. The Supplier must hold them as bailee, keep them separately identified and marked as the Company’s property, use them only for the Contract, keep them insured and in good repair at its own cost, not encumber them, and deliver them up on demand and on termination or expiry of the Contract.

(l) Deferred delivery. The Company may by Written notice defer delivery of any Goods by up to ninety (90) days. Where it does so, the Supplier must store the Goods safely, separately and insured, and the Company will reimburse the Supplier’s reasonable and documented direct storage costs for the period of deferral beyond thirty (30) days, subject to the aggregation rule in clause 12(g).

(m) Backstop security interest and protective filings. The Parties agree as follows:

(i) Grant. As a backstop to, and without prejudice to, the Company’s position that it holds title outright, the Supplier grants to the Company a security interest in all Goods, work in progress, materials, components, tooling, jigs, fixtures, patterns, dies, molds, test equipment, drawings, software and data to which the Company claims title or in which it has a special property under clause 7(g), 7(i) or 7(k), together with all accessions to and proceeds of them, to secure the Supplier’s obligation to deliver that property to the Company and to repay all pre-payments, advance payments and other amounts owing to the Company under or in connection with the Contract. That security interest is granted unconditionally and takes effect and attaches on the date of each Order or, in respect of property in which the Supplier acquires rights after that date, on the Supplier’s acquisition of those rights. It is not conditional on, deferred to, and does not spring into existence upon, any defeat of, avoidance of or challenge to the Company’s title or special property. The security interest is automatically released, and any financing statement filed in respect of it is to be terminated, to the extent and at the time that the Company’s title to or special property in the relevant property is not defeated, avoided, subordinated or held not to have passed and the obligations it secures have been discharged; the Company will promptly file a termination statement to that effect on the Supplier’s Written request.

(ii) Security agreement. This clause 7(m) is a security agreement for the purposes of UCC § 9-102(a)(74) and § 9-203(b)(3)(A), the Supplier has rights in the collateral, and value has been given. Where the Company has paid all or part of the Price of Goods before delivery, the security interest is a purchase-money security interest in inventory for the purposes of UCC § 9-103, and the Supplier must give the Company the information and cooperation needed to give any notification required by UCC § 9-324(b).

(iii) Protective filings. The Supplier authorizes the Company, within the meaning of UCC § 9-509(a)(1), to file one or more financing statements naming the Supplier as debtor and describing as collateral the property described in clause 7(m)(i), together with proceeds. Any such filing is protective only, is made to give notice of the Company’s ownership and security interest and to protect against the avoidance powers in §§ 544 and 547 of the Bankruptcy Code, and is without prejudice to the Company’s position that it holds title outright.

(iv) Debtor information. The Supplier must provide the Company with its exact legal name as it appears on its public organic record, its jurisdiction of organization and its organizational identification number, and must notify the Company within five (5) Business Days of any change to any of them.

(v) Post-default waiver of debtor rights. The rights of the Supplier, as debtor in respect of the security interest granted by clause 7(m)(i), to notification before disposition of collateral, to notification of a proposal to accept collateral in full or partial satisfaction of the obligation secured, to redeem collateral, to require a commercially reasonable disposition, and to any other right arising under Part 6 of Article 9 of the UCC, may be waived only by an agreement authenticated by the Supplier after default, as UCC § 9-624 requires, so that a waiver given before default is ineffective. The Supplier accordingly undertakes that, at any time on or after the occurrence of a default by the Supplier, it will promptly on the Company’s Written demand execute and authenticate an agreement waiving each of those rights to the maximum extent that UCC §§ 9-602 and 9-624 permit them to be waived. Nothing in this clause purports to waive any right that UCC § 9-602 makes non-waivable, and no failure of this clause affects the validity of the security interest granted by clause 7(m)(i).

8. Inspection, Acceptance and Rejection

(a) Inspection before delivery. The Company may inspect and test the Goods at any stage of manufacture and before dispatch in accordance with clause 5(g), and may require the Supplier to remedy any non-conformity identified before dispatch at the Supplier’s cost. The Company’s right of inspection under UCC § 2-513 is preserved and is at the Supplier’s expense where the Goods do not conform.

(b) Inspection after delivery. The Company has thirty (30) days following delivery, or following Acceptance testing where the Order provides for it, to inspect the Goods and notify the Supplier of any rejection. The Parties agree, in accordance with UCC § 1-302(b), that this period is a reasonable time within which to inspect and to reject for the purposes of UCC §§ 2-513, 2-602(1) and 2-606(1). The Company is under no obligation to inspect or test the Goods, and no inspection, test, or failure to inspect or test, limits any right of the Company under clause 9 or otherwise.

(c) Acceptance. Goods and Services are Accepted only when the Company gives Written notice of Acceptance or the period in clause 8(b) expires without rejection. Signature of a delivery document, unloading, handling, storage, processing, resupply, payment of any invoice, or the passing of title or risk does not constitute Acceptance for the purposes of UCC § 2-606, does not constitute an act inconsistent with the Supplier’s ownership, and does not constitute acceptance of the quality of the Goods.

(d) Rejection. The Company may reject any Goods or Services that do not conform to the Contract or to the warranties in clause 9(a), whether or not the non-conformity is material, and may reject the whole of a delivery, any commercial unit, or any part of a delivery, in accordance with UCC § 2-601. Rejection may be made at any time during the period in clause 8(b) or, in the case of a Defect not reasonably discoverable on inspection, at any time during the Warranty Period, by revocation of acceptance under UCC § 2-608, and the Parties agree that a latent Defect is a non-conformity whose discovery was reasonably induced by the difficulty of discovery before acceptance and by the Supplier’s assurances. The Supplier has no right to cure a non-conforming tender under UCC § 2-508 except as clause 8(e) and clause 10 provide, and the Supplier’s right to cure is expressly limited to the remedy the Company elects and to the period stated in clause 10(c).

(e) Consequences of rejection. If the Company rejects any Goods or Services, the Supplier must, at the Company’s option and at the Supplier’s sole expense including all carriage, insurance, duty and disposal costs, promptly: (i) replace the rejected Goods with conforming Goods; (ii) repair or re-perform to the Company’s satisfaction; or (iii) refund the Price of the rejected Goods or Services in full. Rejected Goods are held at the Supplier’s risk from the moment of rejection, and the Company’s obligations in respect of rightfully rejected Goods are limited to those in UCC §§ 2-602(2) and 2-604. The Company may resell rightfully rejected Goods under UCC § 2-711(3) to recover any prepaid Price and its expenses.

(f) Return authorization. The Supplier must issue a return authorization reference immediately on notification of rejection, but the Company’s right to reject and to a remedy is not contingent on the issue of that reference and is not affected by any delay in issuing it.

(g) No return or restocking policies. The Company does not accept any “no return”, “no cancellation”, “non-returnable”, “non-cancellable” or “restocking fee” policy of the Supplier unless it is expressly agreed in Writing and stated in the Order. The Company is not liable for any handling fee, restocking charge, inspection fee or administrative cost associated with the return of Defective or non-conforming Goods.

(h) Uncollected rejected Goods. If the Supplier fails to collect or accept the return of rejected Goods within fourteen (14) days of notification, the Company may store them at the Supplier’s risk and charge for storage, or dispose of or destroy them at the Supplier’s expense. Any cost of storage or disposal is a debt due from the Supplier to the Company.

(i) Statutory remedies preserved — UCC Article 2. The remedies in this clause 8 are in addition to, and not in substitution for, every right and remedy of a buyer under Article 2 of the UCC and at law or in equity, including: rejection (§ 2-601, § 2-602); revocation of acceptance (§ 2-608); cancellation, recovery of the price paid, cover and market damages (§§ 2-711, 2-712, 2-713); damages for accepted non-conforming goods (§ 2-714); incidental and consequential damages (§ 2-715); specific performance and replevin (§ 2-716); and deduction of damages from the price (§ 2-717). The Parties record that:

(i) where the Company has accepted Goods, notice of breach must be given within a reasonable time after the Company discovers or should have discovered the breach under UCC § 2-607(3)(a), failing which the Company is barred from a remedy in respect of those accepted Goods. The Parties agree, under UCC § 1-302(b), that notice given within sixty (60) days after the Company or a Customer first discovers the breach, or at any time within the Warranty Period, whichever is later, is notice given within a reasonable time. UCC § 2-607(3)(a) applies only to accepted Goods. Nothing in this clause imposes any notice condition on the Company’s rejection of Goods under clause 8(d) and UCC § 2-602, on its revocation of acceptance under UCC § 2-608, or on any indemnity;

(ii) the Company may vouch in the Supplier under UCC § 2-607(5) in any action brought against the Company by a Customer or other person in respect of the Goods, and the Supplier is bound by any determination of fact common to the two litigations if it does not defend; and

(iii) no limitation of remedy, exclusive remedy provision, disclaimer, or contractual reduction of the limitation period stated by the Supplier applies to the Contract, and any purported limitation is of no effect, including under UCC § 2-719. Any exclusive remedy that fails of its essential purpose is disregarded and the full range of UCC remedies is available (UCC § 2-719(2)).

(j) Sorting and screening. Where a delivery contains both conforming and non-conforming Goods, the Company may reject the whole delivery, or may sort, screen, test or rework the delivery, and the Supplier must reimburse the Company’s reasonable costs of doing so as incidental damages under UCC § 2-715(1).

9. Supplier Warranties

(a) Warranties. The Supplier represents and warrants that the Goods and Services will, on delivery and throughout the Warranty Period: (i) conform to the Specification; (ii) be free from defects in design, material and workmanship; (iii) be new, unused, genuine, of current manufacture, and not refurbished, remanufactured, reclaimed, gray market or counterfeit; (iv) be merchantable within the meaning of UCC § 2-314 and fit for the particular purpose stated in the Order and for any particular purpose the Company has made known to the Supplier within the meaning of UCC § 2-315, the Company relying on the Supplier’s skill and judgment in each case; (v) comply with clauses 5, 6 and 17 and with all applicable laws, standards, regulations and codes in the country and State of manufacture, the country and State of delivery and any country or State the Supplier knows or ought reasonably to know the Goods are destined for; (vi) be delivered with a good and rightful title, and free of any security interest, lien or other encumbrance of which the Company has no knowledge, and free of any rightful claim of infringement, in accordance with UCC § 2-312(1) and (3), which warranties are expressly given and are not disclaimed; (vii) not infringe the Intellectual Property Rights of any Person; (viii) be safe, and be supplied with all warnings, instructions and safety information required for their safe transport, storage, installation, use, maintenance and disposal; (ix) be capable of being resupplied by the Company to a Customer without further work, certification or modification; (x) where the Goods contain software or firmware, be free from malicious code, undocumented access mechanisms, hard-coded credentials and undisclosed telemetry, be supported by a software bill of materials in SPDX or CycloneDX format, and be supplied with the rights described in clause 16(e); and (xi) in the case of Services, be performed with the degree of skill, care and diligence expected of a suitably qualified and experienced provider of services of that kind, by appropriately qualified, trained and supervised Supplier Personnel holding all licenses, permits and accreditations required for the Services, and in compliance with all applicable laws, including the Occupational Safety and Health Act and the regulations made under it as they apply to the Supplier’s own premises and operations.

(b) Warranty Period. The Warranty Period for any Goods is the period expiring on the later of: (i) twelve (12) months from Customer Delivery of those Goods; and (ii) twenty-four (24) months from delivery of those Goods to the Company, but in no event later than sixty (60) months from delivery of those Goods to the Company, except that where Customer Delivery of those Goods occurs after the forty-eighth (48th) month from delivery of those Goods to the Company, the Warranty Period for those Goods instead expires twelve (12) months after that Customer Delivery. In no event does the Warranty Period for any Goods expire later than eighty-four (84) months from delivery of those Goods to the Company, whenever Customer Delivery of those Goods occurs. The Warranty Period for Services is twelve (12) months from completion of the Services, or, where the Services relate to Goods, the Warranty Period for those Goods, whichever is longer. Each warranty in clause 9(a) is a warranty that explicitly extends to future performance of the Goods for the purposes of UCC § 2-725(2), so that a cause of action for its breach accrues when the breach is or should have been discovered.

(c) Back-to-back cover. The Parties acknowledge that the Company resupplies the Goods and gives its own Customers a warranty of twelve (12) months from Customer Delivery. The Warranty Period in clause 9(b) is intended to cover the Company’s onward warranty obligation in full, however long the Goods are held in the Company’s inventory before Customer Delivery, but is subject in every case to the outer bound of eighty-four (84) months from delivery to the Company stated in clause 9(b), beyond which no Warranty Period subsists for those Goods. That outer bound fixes the duration of the Warranty Period for the Goods to which it applies, and nothing else. It does not cut short the fresh Warranty Period that clause 9(h) begins on delivery of repaired or replacement Goods, which is determined under clause 9(b) by reference to the delivery of those repaired or replacement Goods and carries its own outer bound measured from that delivery. Nor does it limit clause 9(k), clause 9(l), clause 11(g), clause 16(g), or any indemnity given under the Contract, none of which is confined to the Warranty Period. The Supplier may not refuse a claim on the ground that its own standard warranty period, or the warranty period of any manufacturer or sub-tier supplier, has expired, provided the claim is made within the Warranty Period.

(d) Claims. Where a failure to comply with clause 9(a) arises or is discovered during the Warranty Period and the Company gives Written notice of it to the Supplier within the time that clause 8(i)(i) fixes as a reasonable time, and gives the Supplier a reasonable opportunity to examine the affected Goods or Services, the Supplier must at the Company’s option repair, replace or re-perform free of charge, or refund the Price in full, in each case within the period stated in clause 10(c). Where the Company returns Goods for that purpose, it does so at the Supplier’s cost and risk.

(e) Exclusions. The Supplier remains liable for a failure to comply with clause 9(a) unless the Supplier proves that: (i) the Defect arises solely because the Company failed to follow the Supplier’s written instructions as to storage, commissioning, installation, use or maintenance; (ii) the Company altered or repaired the Goods without the Supplier’s Written consent, and the Defect arises solely from that alteration or repair; or (iii) the Defect arises solely from fair wear and tear or willful damage caused by the Company. The burden of proof under this clause is on the Supplier.

(f) Pass-through of third party warranties. The Supplier assigns to the Company the benefit of every warranty, guarantee and indemnity it receives from any manufacturer or sub-tier supplier in respect of the Goods, and where any such benefit is not assignable, the Supplier must at the Company’s request and at the Supplier’s cost pursue the claim on the Company’s behalf and account to the Company for the proceeds. The Supplier must procure that every such warranty is expressed to be for the benefit of the Company and its Customers as express third-party beneficiaries where it is able to do so, and must not agree to any privity limitation that would defeat the Company’s or a Customer’s claim.

(g) Survival. The Supplier’s warranties survive inspection, testing, Acceptance, payment, resupply and use of the Goods, and are not merged in or extinguished by delivery or by any invoice.

(h) Repaired and replacement Goods. These Conditions continue to apply to any repaired or replacement Goods or re-performed Services, and a new Warranty Period determined under clause 9(b) begins in respect of them on delivery or completion.

(i) Statutory rights preserved. The warranties in this clause 9 are in addition to, and do not limit, any condition, warranty, guarantee, right or remedy available to the Company at law. The position is as follows, and the Supplier must not represent otherwise:

(i) the implied warranties of merchantability (UCC § 2-314), of fitness for a particular purpose (UCC § 2-315) and of title and against infringement (UCC § 2-312), and every express warranty arising from affirmation, description, sample or model (UCC § 2-313), apply to the Contract in full. Any disclaimer, “as is” or “with all faults” statement, or attempted exclusion of those warranties under UCC § 2-316 is expressly rejected and is of no effect, and the Supplier acknowledges that it has been given no opportunity to examine the Goods so as to engage UCC § 2-316(3)(b) against the Company;

(ii) the Magnuson-Moss Warranty Act (15 U.S.C. §§ 2301–2312) applies only to consumer products supplied to consumers. Where the Goods are or are incorporated into a consumer product, the Supplier must ensure that any written warranty it gives complies with that Act and with the FTC rules at 16 C.F.R. Parts 700–703, and must not disclaim any implied warranty in a manner that would be void under 15 U.S.C. § 2308;

(iii) nothing in the Contract excludes, restricts or modifies any right or remedy of the Company under any State unfair or deceptive acts and practices statute, including the Delaware Consumer Fraud Act (6 Del. C. §§ 2511–2527) and the Delaware Deceptive Trade Practices Act (6 Del. C. §§ 2531–2536), or under any other law to the extent that right or remedy cannot lawfully be excluded, restricted or modified; and

(iv) the contractual indemnities in clauses 11(g) and 20 are the Company’s primary protection against the default of a manufacturer, and clause 11(h) applies.

(j) No supplier limitation. Any limitation of remedy, exclusive remedy, disclaimer of implied warranties, warranty period limitation, notice period, contractual limitation period or time bar stated by the Supplier in any document is of no effect and does not apply to the Contract.

(k) Repair and rework Services. Where the Supplier repairs, reworks or refurbishes Goods, the Supplier warrants that work and all replacement parts for twelve (12) months from completion, and in these Conditions the term “Goods” includes those Services and parts.

(l) Product security lifecycle. Where the Goods contain software or firmware, the Supplier must, for a period of five (5) years from the last delivery of those Goods under any Order (the Security Support Period):

(i) Coordinated vulnerability disclosure. Operate and maintain a coordinated vulnerability disclosure and receipt policy consistent with ISO/IEC 29147 and ISO/IEC 30111, and notify the Company in Writing within five (5) Business Days of becoming aware of any vulnerability affecting the Goods, whether identified by the Supplier, reported to it by a third party, or published (including any entry in the CISA Known Exploited Vulnerabilities Catalog or the National Vulnerability Database). The notification must identify the affected products, versions and components, the CVE identifier where one exists, the CVSS base score and severity rating, the vulnerable component in the software bill of materials supplied under clause 9(a)(x), any available mitigation or workaround, and the expected remediation date. The Supplier must not condition that notification on the Company entering into any further agreement, and clause 15(j) applies to the notification;

(ii) Security patches. Develop, test and supply to the Company security patches, updates, firmware releases and workarounds at no charge to the Company, the Group or any Customer, within a period commensurate with the severity of the vulnerability and in any event promptly for any vulnerability rated critical or high or listed in the CISA Known Exploited Vulnerabilities Catalog, together with release notes, an updated software bill of materials, regression test results and instructions sufficient to permit the Company and its Customers to apply them. A security patch supplied under this clause is Goods for the purposes of clause 9(a) and is supplied with the license granted by clause 16(e); and

(iii) End of security support. Give the Company not less than twelve (12) months’ prior Written notice before the end of the Security Support Period, or before ceasing or reducing security support for any Goods, whichever occurs first, and, on the Company’s request made within that notice period, either continue security support on reasonable commercial terms or make available the source code, build environment, signing arrangements and documentation necessary for the Company or its nominee to maintain the Goods, under clause 16(f) where an escrow arrangement is in place.

The Supplier’s obligations under this clause 9(l) are additional to, and are not limited or displaced by, the Warranty Period, and continue for the Security Support Period despite any expiry or termination of the Contract.

10. Remedies, Rework and Repair

(a) Cumulative. The remedies in this clause 10 are in addition to, and not in substitution for, every other right and remedy of the Company under the Contract or at law or in equity, including under Part 7 of Article 2 of the UCC. No remedy in these Conditions is exclusive for the purposes of UCC § 2-719(1)(b).

(b) Company’s election. Where the Goods or Services are Defective, the Company may elect between repair, replacement, re-performance, refund, price reduction, rejection or revocation of acceptance under clause 8, and damages, and may change its election if the remedy first elected is not completed within the period in clause 10(c).

(c) Time for remedy. The Supplier must complete the elected remedy within thirty (30) days of the Company’s notice, or within any shorter period the Order or the urgency of the Customer’s requirement reasonably demands and the Company notifies. If the Supplier fails to do so, the Company may, without further notice, carry out the remedy itself or procure a third party to do so, and the Supplier must reimburse all costs the Company incurs, including Removal Costs.

(d) Removal Costs. The Supplier is liable for Removal Costs arising from any Defect or Recall, whether the Goods are in the Company’s inventory, in transit, or installed at a Customer’s site. Removal Costs are recoverable as incidental and consequential damages under UCC § 2-715, and the Supplier acknowledges that the Company’s installation of the Goods in outside plant networks, and the resulting removal and reinstatement cost, were within its contemplation at the time of contracting.

(e) Systemic and epidemic Defects. Where the same or a similar Defect is found in three percent (3%) or more of any batch, lot or delivery, or where the Company reasonably concludes that a Defect arises from a common cause in design, material, process or sub-tier supply, the Company may treat the whole of the affected batch, lot, delivery or production period as Defective without further proof, and the Supplier must remedy the whole of it and bear all associated costs including Removal Costs, screening and testing costs. The Parties agree, under UCC § 1-302(b), that this is a commercially reasonable standard for measuring performance and non-conformity.

(f) Cost of cover. Where the Supplier fails to deliver or to remedy, the Company may procure substitute goods or services under UCC § 2-712 and recover from the Supplier the excess of the cost of doing so over the Price, together with expedited freight, requalification, testing and internal costs, or may elect market damages under UCC § 2-713. The Company is not required to prove that its cover was the cheapest available, only that it was made in good faith and without unreasonable delay.

(g) Data on returned Goods. Where Goods containing data are returned to the Supplier, the Supplier must handle, secure, and on the Company’s instruction erase or destroy that data in accordance with clause 18 and to NIST SP 800-88 Rev. 1 media sanitization standards, and must certify erasure or destruction in Writing on request.

11. Product Safety, Recall and Traceability

(a) Notification. The Supplier must notify the Company immediately, and in any event within twenty-four (24) hours, on becoming aware of: (i) any actual or potential safety defect, hazard or risk of injury associated with the Goods or with goods of the same type, batch or design; (ii) any Recall, regulatory notice, enforcement action, injury report or field failure trend affecting them; or (iii) any circumstance likely to require a Recall. The Supplier must also notify the Company immediately of any report it makes, or is required to make, to the Consumer Product Safety Commission under § 15(b) of the Consumer Product Safety Act (15 U.S.C. § 2064(b)) and 16 C.F.R. Part 1115, to the Occupational Safety and Health Administration, to the Federal Communications Commission, to the National Highway Traffic Safety Administration, or to any State attorney general or product safety regulator.

(b) Conduct of a Recall. The Company may decide, in its absolute discretion, whether to conduct a Recall, and controls its scope, timing, content and communications. The Supplier must not conduct or announce any Recall in respect of Goods supplied to the Company, or communicate with any Customer about them, without the Company’s prior Written consent, unless required by law and then only after giving the Company as much prior notice as is practicable. Where a report is required under 15 U.S.C. § 2064(b), the Parties will cooperate to make a joint or coordinated report within the twenty-four hour period recognized by 16 C.F.R. § 1115.14, and the Supplier must not agree any corrective action plan, consent order or civil penalty settlement affecting the Goods without the Company’s prior Written consent.

(c) Cost of a Recall. The Supplier must bear all costs of any Recall arising from a Defect or from any breach of the Contract, including Removal Costs, the cost of customer notification and call handling, regulatory reporting, transport, replacement, disposal, and the Company’s reasonable internal costs, and must reimburse the Company for all amounts it pays to any Customer or regulator in connection with the Recall, including any civil penalty imposed under 15 U.S.C. § 2069 or any other statute to the extent the penalty arises from the Supplier’s act or omission and its indemnification is not prohibited by law.

(d) Cooperation. The Supplier must cooperate fully and promptly with the Company and with any regulator in relation to any Recall, safety investigation or product incident, and must provide all technical, production, test and traceability information the Company or the regulator requires. The Supplier must not assert any confidentiality or trade secret claim under 15 U.S.C. § 2055(b) in a manner that delays or obstructs the Company’s compliance.

(e) Traceability. The Supplier must operate a traceability system that permits any item of Goods to be traced to its production batch or lot, its date and place of manufacture, its test records, and the source of each critical component and raw material, and must record and mark that information in accordance with clause 6(c). The Supplier must provide full traceability data for any identified Goods within five (5) Business Days of request, and must be able to identify all other Goods produced from the same batch, lot, material or process. The traceability data must be sufficient to satisfy a CBP request for supply chain tracing documentation under clause 17(h).

(f) Counterfeit and unauthorized goods. The Supplier must procure all components and materials from the original manufacturer or its authorized distribution channel, and must maintain controls to prevent counterfeit, cloned, reclaimed or gray market parts entering the supply chain, consistent with SAE AS5553 and SAE AS6081 and, where applicable, with FAR 52.246-26 and DFARS 252.246-7007. If any Goods are found to be counterfeit or unauthorized, the Supplier must at its own cost replace them, bear all Removal Costs and investigation costs, notify the Company of the source, cooperate with any investigation by the Company, CBP, the Federal Bureau of Investigation or any other authority, and must not return the affected items into any supply chain. Counterfeit Goods may be retained by the Company or by a regulator, and may be seized under 19 U.S.C. § 1526 or 18 U.S.C. § 2320, and no refund obligation of the Company arises in respect of them.

(g) Product liability indemnity. The Supplier indemnifies the Company and the Group against all loss, liability, damages, costs and expenses, including attorneys’ fees and costs on a full indemnity basis, arising out of or in connection with: (i) any claim that the Goods are defective in design, manufacture, instruction or warning, whether framed in strict liability under the Restatement (Third) of Torts: Products Liability or the product liability law of any State, in negligence, in breach of warranty, or otherwise, or that they have caused death, personal injury, or loss of or damage to property; (ii) any Recall; (iii) any failure of the Goods to comply with a product safety requirement, including the Consumer Product Safety Act, the Consumer Product Safety Improvement Act, the Federal Hazardous Substances Act or any State product safety or warning statute (including California Proposition 65); (iv) any claim by a Customer arising from a failure of the Goods to comply with clause 9(a); and (v) any liability of the Company arising because the Company is treated as the manufacturer, importer, importer of record, brand owner, private labeler or responsible supplier of the Goods, including under 15 U.S.C. § 2052(a)(11) or any State statute that treats an importer or private labeler as a manufacturer. This indemnity is not limited by the Warranty Period.

(h) Manufacturer’s amenability to suit and agent for service. Where the Supplier or any manufacturer of the Goods has no place of business in the United States, the Supplier must: (i) appoint and maintain an agent for service of process in the State of Delaware in accordance with clause 25(b), and notify the Company of its name and address; (ii) irrevocably consent to the personal jurisdiction of the courts named in clause 25(b); (iii) procure the same appointment and consent from the actual manufacturer of the Goods where the Supplier is not the manufacturer; and (iv) maintain the insurance required by clause 19 with a United States admitted insurer or an eligible surplus lines insurer. Failure to comply with this clause 11(h) is a material breach for the purposes of clause 13(a).

12. Change Orders, Cancellation and Suspension

(a) Change Orders. The Company may at any time before delivery direct a change to the Order in Writing, including a change to the Specification, quantity, delivery date, Delivery Point, packaging, marking, documentation or method of shipment.

(b) Impact assessment. The Supplier must notify the Company in Writing within five (5) Business Days of receiving a Change Order of any resulting increase or decrease in Price or change in delivery date, with full substantiation. The Supplier must continue to perform the Contract as directed pending agreement on the impact. Any adjustment must be a fair and reasonable adjustment referable to the actual and unavoidable cost or saving. The Parties agree that a Change Order requires no separate consideration to be binding, and each Party waives any defense based on absence or failure of consideration, consistent with UCC § 2-209(1).

(c) No late claims. The Supplier has no claim for any Price or schedule adjustment arising from a Change Order unless it has given notice under clause 12(b) within the period stated.

(d) Cancellation for convenience. The Company may cancel, reduce, amend or suspend an Order in whole or in part at any time before delivery by giving Written notice to the Supplier.

(e) Cancellation liability. On cancellation under clause 12(d), the Company’s sole liability is to pay for Goods and Services already delivered and Accepted, and to reimburse the Supplier’s unavoidable, documented, direct costs properly incurred in respect of the canceled part of the Order and not recoverable by the Supplier through resale, reallocation, return to a sub-tier supplier or mitigation. The Company is not liable for loss of profit, loss of overhead recovery, anticipated margin, cancellation charge, restocking charge, or any indirect or consequential loss, and the termination settlement principles of FAR Part 49 (including the “fair compensation” standard in FAR 49.201 and any profit on work performed) do not apply to the Contract unless the Order expressly incorporates them. The Supplier must take all reasonable steps to mitigate its costs, and must credit the Company with the value of any material, work in progress or capacity it is able to use or resell. No cancellation charge is payable in respect of catalog or standard Goods.

(f) Substantiation of a claim. The Supplier must submit any claim under clause 12(e) within thirty (30) days of the cancellation notice, with full supporting documentation, and must give the Company and its advisers access to its records to verify the claim. No claim submitted after that period is payable.

(g) Suspension. The Company may suspend performance of an Order in whole or in part for up to ninety (90) days by Written notice, and the delivery dates are extended by the period of suspension. The Company’s liability for a suspension is limited to the Supplier’s reasonable and documented direct storage and preservation costs for the period of suspension beyond thirty (30) days. Where delivery of the same Goods is also deferred under clause 7(l), the thirty (30) day period in this clause 12(g) and the thirty (30) day period in clause 7(l) apply once only in aggregate in respect of those Goods.

(h) Third party claims. The Supplier indemnifies the Company against any third party claim arising out of the Supplier’s failure to perform its own obligations following a Change Order, cancellation or suspension, including any claim by a sub-tier supplier.

(i) Non-cancellable designations. Any designation of Goods by the Supplier as non-cancellable or non-returnable is of no effect unless it is expressly agreed in Writing and stated in the Order.

13. Supplier Default and Termination

(a) Termination for breach. The Company may terminate the Contract, and any or all other contracts between the Parties, in whole or in part, immediately by Written notice if the Supplier commits a material breach that is not capable of remedy, or that is capable of remedy and is not remedied within ten (10) Business Days of Written notice requiring its remedy.

(b) Immediate termination. The Company may terminate the Contract, and any or all other contracts between the Parties, in whole or in part, immediately by Written notice, and without any liability, if: (i) the Supplier becomes subject to an Insolvency Event, subject to clause 13(h); (ii) the Supplier fails to deliver by the due date, or fails to deliver any installment; (iii) the Goods or Services are rejected under clause 8 and the Supplier fails to remedy within the period in clause 10(c); (iv) the Supplier breaches clause 15, clause 16, clause 17 or clause 18; (v) the Supplier or any of its Supplier Personnel becomes a Restricted Party, or the Company reasonably believes that continued performance would breach any Trade Controls; (vi) a change of control or other event described in clause 22(d) occurs and the Company is entitled to terminate under that clause; (vii) the Supplier fails to maintain the insurance required by clause 19; or (viii) the Supplier fails to provide adequate assurance under clause 13(c).

(c) Adequate assurance — UCC § 2-609. Where the Company has reasonable grounds for insecurity as to the Supplier’s ability or willingness to perform, including where the Company reasonably believes the Supplier may become subject to an Insolvency Event, the Company may by Written demand require adequate assurance of due performance under UCC § 2-609, and may suspend its own performance and withhold payment for any performance for which it has not already received the agreed return until it receives that assurance. The Supplier must provide assurance satisfactory to the Company, acting reasonably, within ten (10) days of the demand. The Parties agree, under UCC § 1-302(b), that ten (10) days is a reasonable time for the purposes of UCC § 2-609(4) and is within the thirty (30) day maximum that section allows, and that commercially reasonable assurance includes an irrevocable standby letter of credit, a parent guarantee, escrow of tooling and materials, or delivery of the Goods against sight payment. Failure to provide that assurance within the period is a repudiation of the Contract and entitles the Company to the remedies in UCC § 2-610, including cancellation, cover and damages.

(d) Termination for convenience. The Company may terminate the Contract in whole or in part for convenience at any time by Written notice, and clause 12(e) applies to the consequences.

(e) Consequences of termination. On termination or expiry of the Contract for any reason, the Supplier must immediately: (i) refund all pre-payments and advance payments for Goods not delivered and Accepted and Services not performed and Accepted; (ii) deliver up all Company property under clause 7(k), all Confidential Information under clause 15(f), and all Personal Information under clause 18(j); (iii) at the Company’s option and against payment of the Supplier’s reasonable direct cost, deliver up all completed Goods, work in progress, materials, components and documentation allocated to the Order, title in which passes to the Company on payment; (iv) at the Company’s option, assign to the Company or novate to the Company or its nominee any sub-tier order, license or arrangement relating to the Order; and (v) provide all information, drawings, tooling records, sub-tier details and manufacturing data the Company requires to procure the Goods or Services from an alternative source.

(f) Accrued rights. Termination does not affect any right, remedy, obligation or liability of either Party that has accrued as at termination.

(g) Survival. Clauses 1, 2(i), 2(j), 3(i), 4, 5(g), 5(i), 7(h) to 7(m), 8, 9, 10, 11, 12(e), 12(f), 12(h), 13(e), 13(f), 15, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 25, and every other clause that expressly or by implication is intended to survive, continue in full force and effect after termination or expiry.

(h) Effect of the Bankruptcy Code. Sections 365(e)(1) and 541(c)(1)(B) of the Bankruptcy Code make a contractual right to terminate or modify an executory contract solely because of the debtor’s insolvency, financial condition or the commencement of a case (an “ipso facto” clause) unenforceable against a debtor in possession or trustee, and § 362 imposes an automatic stay on the exercise of remedies. Accordingly:

(i) clause 13(b)(i) is effective in respect of any Insolvency Event occurring before the commencement of a case under the Bankruptcy Code, and thereafter is effective only to the extent permitted by law;

(ii) the Company’s other termination rights, including those in clauses 13(a), 13(b)(ii) to (viii) and 13(d), are independent of the Supplier’s financial condition and remain exercisable subject to the automatic stay;

(iii) nothing in this clause limits the Company’s right to demand adequate assurance under clause 13(c) and UCC § 2-609, or its right to require cure of defaults and adequate assurance of future performance as a condition of assumption of the Contract under § 365(b)(1) of the Bankruptcy Code;

(iv) the Company’s rights in respect of intellectual property licenses on rejection are governed by clause 16(l); and

(v) the Supplier agrees that each Order is a separate and severable Contract, so that a trustee or debtor in possession may not assume profitable Orders while rejecting unprofitable ones as parts of a single agreement.

14. Force Majeure

(a) Definition and relief. Neither Party is liable for delay or failure in performing its obligations under the Contract, other than an obligation to pay money, to the extent that the delay or failure results from a Force Majeure Event, being an event beyond the reasonable control of that Party, including act of God, earthquake, fire, explosion, flood, storm, tornado, hurricane, act of terrorism, war or threat of war, civil disturbance, riot, act of government, embargo, or epidemic or pandemic. This clause states the whole of the Supplier’s excuse for non-performance and displaces the doctrine of commercial impracticability and failure of presupposed conditions under UCC § 2-615, and the common law doctrines of impossibility and frustration of purpose, which are excluded to the fullest extent permitted by UCC § 1-302. The Supplier may not claim relief under UCC § 2-615 in respect of any matter listed in clause 14(b).

(b) Exclusions. A Force Majeure Event does not include: (i) any increase in the cost or reduced availability of labor, materials, components, energy, duties, tariffs, freight or transport; (ii) any movement in exchange rates or interest rates; (iii) any industrial action or labor dispute confined to the workforce of the affected Party or of its sub-tier suppliers; (iv) any failure, default, insolvency or delay of a sub-tier supplier, unless the underlying cause would itself be a Force Majeure Event affecting the Supplier directly and no alternative source is reasonably available; (v) any event the affected Party could have avoided or overcome by taking reasonable precautions or by implementing reasonable business continuity or contingency arrangements; or (vi) any failure of the Supplier to obtain or maintain any license, permit, authorization, export approval, equipment authorization or listing.

(c) Notice and mitigation. The affected Party must notify the other in Writing within five (5) Business Days of becoming aware of the Force Majeure Event, giving full particulars, its expected duration and the steps being taken to mitigate it, and must keep the other informed. The affected Party must use all reasonable endeavors to mitigate and to resume performance. Relief is available only for so long as, and to the extent that, the Force Majeure Event actually prevents performance and the affected Party complies with this clause. Notice under this clause is also the notice required by UCC § 2-615(c), and failure to give it within the period stated forfeits any excuse.

(d) Allocation of supply. Where a Force Majeure Event affects the Supplier’s capacity, the Supplier must allocate available Goods, materials and capacity to the Company on a basis no less favorable than that applied to any other customer, and must not divert to any other customer any Goods, materials or capacity allocated to the Company. The Parties agree that this is the fair and reasonable allocation required by UCC § 2-615(b), and the Company’s rights to terminate or modify under UCC § 2-616 are in addition to its rights under clauses 14(e) and 14(f).

(e) Company’s rights. During a Force Majeure Event affecting the Supplier, the Company may procure the affected Goods or Services from an alternative source, and may reduce or cancel the affected part of the Order, in each case without liability and without any cancellation charge, and the Company is not obliged to accept late performance.

(f) Termination. If a Force Majeure Event prevents, hinders or delays the Supplier’s performance for a continuous period of more than thirty (30) days, or for periods totaling more than forty-five (45) days in any six month period, the Company may terminate the Contract immediately by Written notice without liability.

(g) No price increase. A Force Majeure Event does not entitle the Supplier to any increase in the Price or to recover any cost it incurs as a result of the event.

15. Confidentiality

(a) Definition. Confidential Information means all information relating to the Company, the Group, any Customer, the Contract, the Goods and Services, and the Company’s business, in any form and whether or not marked confidential, including know-how, technology, source code, object code, software, designs, drawings, specifications, databases, documentation, discoveries, inventions, processes, methods, formulations, concepts, trade secrets, prototypes, plans, sourcing information, supplier and customer identities, pricing, forecasts, volumes and financial information, together with the existence and terms of the Contract and of any Order. Confidential Information includes trade secrets within the meaning of the Defend Trade Secrets Act, 18 U.S.C. § 1839(3), and of the Uniform Trade Secrets Act as enacted in any State, and the Parties agree that the measures required by this clause are reasonable measures to keep that information secret for the purposes of those Acts.

(b) Exclusions. Confidential Information does not include information that: (i) is or becomes generally available to the public other than through a breach of a duty of confidentiality owed to the Company; (ii) was lawfully in the Supplier’s possession at the time of disclosure and was not acquired from the Company or from a Person owing a duty of confidentiality to the Company, as evidenced by the Supplier’s pre-existing written records; or (iii) is independently developed by the Supplier without use of or reference to any Confidential Information, as evidenced by the Supplier’s contemporaneous written records.

(c) Obligations. The Supplier must keep the Confidential Information secret, must use it exclusively for the purpose of performing the Contract, and must protect it using at least the measures it applies to its own confidential information of equivalent importance and in no event less than commercially reasonable measures. The Supplier may disclose Confidential Information only to those Supplier Personnel and professional advisers who need to know it for that purpose and who are bound by written obligations of confidentiality no less protective than this clause, and the Supplier remains liable for their acts and omissions.

(d) Compelled disclosure. If the Supplier is required by law, subpoena, civil investigative demand, or by any regulator or court to disclose Confidential Information, it must, so far as lawful, give the Company prompt prior Written notice and a reasonable opportunity to seek a protective order under Federal Rule of Civil Procedure 26(c) or its State equivalent, or other relief, must disclose only the minimum required, and must continue to protect the confidentiality of the remainder.

(e) No publicity or use of marks. The Supplier must not issue any press statement or release, make any public announcement, use the Company’s name, marks, logo or images of the Goods, or refer to the Company as a customer or reference, without the Company’s prior Written consent.

(f) Return and destruction. At any time on the Company’s request, and on termination or expiry of the Contract, the Supplier must promptly return all Confidential Information to the Company or, at the Company’s option, destroy it and certify that destruction in Writing, other than one copy retained solely to the extent required by law or by the Supplier’s bona fide record retention policy, which remains subject to this clause for so long as it is retained.

(g) Ownership and duration. Ownership of and title to the Confidential Information, and to any derivative work, improvement or modification of it, remains at all times with the Company. The obligations in this clause continue without limit of time in respect of information that is a trade secret, and for ten (10) years after termination or expiry of the Contract in respect of all other Confidential Information, or for longer where a longer period is required by law or by an obligation owed to a Customer.

(h) Breach. The Supplier must notify the Company promptly of any unauthorized access to, disclosure of, or use of Confidential Information, and must cooperate with the Company to prevent further unauthorized access, disclosure or use. The Supplier acknowledges that damages are an inadequate remedy for breach of this clause, that the Company will suffer irreparable harm, and that the Company is entitled to injunctive and other equitable relief, including under 18 U.S.C. § 1836(b)(3)(A), without proof of actual damage and, to the extent permitted by law, without any requirement to post a bond, and to exemplary damages and attorneys’ fees under 18 U.S.C. § 1836(b)(3)(C) and (D) for willful and malicious misappropriation.

(i) Immunity notice under 18 U.S.C. § 1833(b). NOTICE OF IMMUNITY. Notwithstanding any other provision of the Contract, and as required by 18 U.S.C. § 1833(b), an individual is not liable under any federal or State trade secret law for the disclosure of a trade secret that: (i) is made in confidence to a federal, State or local government official, directly or indirectly, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if that filing is made under seal. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of that individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal and does not disclose the trade secret except pursuant to court order. The Supplier must include this notice in every agreement with Supplier Personnel that governs the use of a trade secret or other confidential information.

(j) Company’s obligation in respect of Supplier technical information. Where the Supplier discloses to the Company technical information of the Supplier that is conspicuously marked, or identified in Writing at or promptly after the time of disclosure, as confidential — including manufacturing and process control data, sub-tier sourcing and traceability information provided under clause 11(e) or clause 17(i), material, chemical and substance declarations provided under clause 17(j), emissions data provided under clause 17(n), and software bills of materials and vulnerability information provided under clause 9(a)(x), clause 9(l) or clause 16(e) (together, Supplier Technical Information) — the Company must keep that information confidential, must use it only for the purposes of the Contract and of its own compliance, quality, safety, warranty, Recall, resupply and Customer obligations, and must protect it using at least the measures it applies to its own confidential information of equivalent importance and in no event less than commercially reasonable measures. The Company may disclose Supplier Technical Information to any member of the Group, and to its auditors, insurers, financiers and professional advisers, on the same terms, and, to the extent necessary to satisfy any representation, certification, disclosure or reporting obligation it owes to a Customer or regulator under clause 17 or otherwise, or to respond to a Recall, safety investigation, detention, exclusion, audit or legal process, may disclose it to that Customer, regulator, court or authority, in each case disclosing only the minimum reasonably required and, so far as practicable, on terms of confidence.

This clause 15(j) does not apply to, and imposes no obligation on the Company in respect of: (i) any Company Background IP, any Specification, Order or other document supplied by or on behalf of the Company, or any information derived from or contained in any of them; (ii) any Intellectual Property Right vested in, assigned to or licensed to the Company under clause 16; (iii) any information falling within clause 15(b), applied as if references in that clause to the Supplier were references to the Company and references to the Company were references to the Supplier; or (iv) any information the Company is required to disclose by law, subpoena, civil investigative demand, court or regulator. The Company’s obligation under this clause continues for five (5) years from the date of disclosure. This clause creates no obligation of the Company beyond those expressly stated, confers no Intellectual Property Right on the Supplier, does not restrict the Company’s use of its own residual skill and know-how, and is subject to clauses 21(d) and 21(e).

16. Intellectual Property

(a) Company Intellectual Property Rights. Except as expressly provided in a separate written agreement, the Company retains all Intellectual Property Rights contained in or arising out of the Company’s specifications, drawings, designs, tooling, materials, data and the results of the Services. All of the Company’s Intellectual Property Rights are the sole and exclusive property of the Company or its licensors. The Supplier acquires no ownership interest in, right to, or license under any of them by performing the Contract, and any goodwill derived from the Supplier’s use of them accrues to the Company.

(b) Limited license. The Company grants the Supplier a non-exclusive, non-transferable, revocable license to use the Company’s Intellectual Property Rights solely to the extent necessary to perform the Contract. The Supplier must not use them for any other purpose, must not take any action adverse to or interfering with them, and must not alter, obscure or remove any of the Company’s marks or proprietary rights notices.

(c) Assignment of developed Intellectual Property Rights. All Intellectual Property Rights created, developed, conceived, made or first reduced to practice by the Supplier or Supplier Personnel in the course of performing the Contract, in any deliverable, design, drawing, tooling, report, data or software specifically developed for the Company under the Contract, vest in the Company on creation and, to the extent they do not so vest, the Supplier hereby irrevocably assigns, and agrees to assign, them to the Company absolutely, by way of present assignment of existing and future rights, free of encumbrance and without further payment. The Supplier must procure from each of the Supplier Personnel all assignments, consents and waivers necessary to give effect to this clause.

Supplier Background IP is excluded from this clause 16(c) and is not assigned. Nothing in this clause assigns or transfers any Supplier Background IP, and no Supplier Background IP becomes the property of the Company by reason of its incorporation in, or use in the creation of, any deliverable or of the Goods. Where a Supplier improvement, modification or enhancement is specific to the Goods or is derived from the Company’s Specification, Confidential Information or Company Background IP, but is not a deliverable specifically developed for the Company, it remains the Supplier’s property and is licensed to the Company and the Group under clause 16(e). The Supplier must identify in Writing, before or on delivery of any deliverable, all Supplier Background IP embedded in or necessary to the use of that deliverable. The following provisions of United States law apply:

(i) Present assignment. The words “hereby irrevocably assigns” operate as a present assignment of rights in inventions and works not yet in existence, in accordance with Board of Trustees of the Leland Stanford Junior University v. Roche Molecular Systems, Inc., 563 U.S. 776 (2011), and are effective without further act or consideration.

(ii) Work made for hire. Where the Order or a separate written instrument signed by both Parties expressly so provides, each copyrightable deliverable identified in it is, to the extent it falls within one of the nine categories in 17 U.S.C. § 101, a “work made for hire” specially ordered or commissioned by the Company, and the Company is the author and owner under 17 U.S.C. § 201(b). A specially commissioned work made for hire requires a written instrument signed by both Parties, and the Supplier must execute that instrument on request. To the extent any deliverable is not, or does not qualify as, a work made for hire, it is assigned under this clause 16(c), and the assignment is the primary mechanism on which the Company relies.

California carve-out. Where any Supplier Personnel performing the relevant work are located in California, this clause 16(c)(ii) does not apply and no deliverable is commissioned or treated as a work made for hire; ownership passes by assignment under clause 16(c) only. The Parties record that this is to avoid the statutory employer consequences of Cal. Lab. Code § 3351.5(c) and Cal. Unemp. Ins. Code §§ 621(d) and 686, which would be inconsistent with clause 24(a).

(iii) Moral rights. To the extent any deliverable is a “work of visual art” within 17 U.S.C. § 101, the Supplier waives, and must procure that each individual author expressly waives in a signed writing identifying the work and the uses to which the waiver applies, all rights under 17 U.S.C. § 106A and all analogous rights under the law of any State or other country.

(iv) Employee invention statutes. Several States restrict the scope of an employer’s claim to inventions developed by an individual entirely on their own time without the employer’s equipment, supplies, facilities or trade secret information (for example Del. Code tit. 19, § 805; Cal. Lab. Code §§ 2870–2872; Wash. Rev. Code § 49.44.140; 765 ILCS 1060/2; Minn. Stat. § 181.78; N.C. Gen. Stat. §§ 66-57.1–66-57.2; Kan. Stat. § 44-130; Utah Code §§ 34-39-1 et seq.; N.J.S.A. 34:1B-265; Nev. Rev. Stat. § 600.500). The Supplier must ensure that its agreements with Supplier Personnel are enforceable under the law of the State in which each individual works, including by giving any written notice those statutes require, and nevertheless secure to the Company all rights this clause requires.

(v) Formalities. The Supplier must execute, and procure the execution of, assignments in a form recordable with the United States Patent and Trademark Office under 35 U.S.C. § 261 and with the United States Copyright Office under 17 U.S.C. § 205, and must provide inventor declarations, powers of attorney and priority documents on request. The Supplier must do nothing that prejudices recordation with the USPTO within the three (3) month period that defeats a subsequent bona fide purchaser.

(vi) Federal funding. Where any part of the work is funded by a federal agency, the Supplier must notify the Company before commencing and must comply with the Bayh-Dole Act (35 U.S.C. §§ 200–212) and 37 C.F.R. Part 401, including invention disclosure, election of title, government license and march-in provisions, and with any data rights clause incorporated in the Order (including FAR 52.227-14 or DFARS 252.227-7013 to 252.227-7015).

(d) Further assurances. The Supplier must, at the Company’s request and at the Supplier’s cost, promptly execute all documents and do all things necessary to vest, perfect, record or enforce the Company’s Intellectual Property Rights under clause 16(c), including assisting with any application, prosecution, registration, recordation or proceeding, and irrevocably appoints the Company its attorney-in-fact, coupled with an interest, to execute any such document if the Supplier fails to do so within ten (10) Business Days of request.

(e) License of Supplier Intellectual Property Rights. To the extent any deliverable, Goods or Services incorporate Intellectual Property Rights owned by the Supplier or a third party, including Supplier Background IP and any improvement, modification or enhancement specific to the Goods referred to in clause 16(c), the Supplier grants, and must procure the grant of, to the Company and the Group a perpetual, irrevocable, worldwide, royalty-free, fully paid-up, non-exclusive license, with the right to sublicense to Customers, distributors, contractors and end users, to use, install, configure, operate, maintain, repair, modify, resupply and dispose of the Goods and deliverables and to permit others to do so. The Supplier must disclose in Writing, in a software bill of materials, all open source and third party software incorporated in the Goods and the license terms applying to it, and must not incorporate any component whose license terms would require the disclosure or licensing of, or the grant of patent rights in, the Company’s Intellectual Property Rights.

(f) Continuity of software and firmware. Where the Goods contain software or firmware essential to their operation, the Supplier must, on request, enter into a source code escrow or equivalent continuity arrangement on terms reasonably required by the Company, with an escrow agent established in the United States, and with release triggers including an Insolvency Event, discontinuation of support, and material failure to maintain the software. The escrow agreement is a “supplementary agreement” for the purposes of § 365(n)(1)(B) and § 365(n)(4) of the Bankruptcy Code.

(g) Non-infringement and IP Claims. The Supplier warrants that the Goods and Services, and their supply, use, resupply and disposal, do not and will not infringe the Intellectual Property Rights of any Person, and gives the warranty against infringement in UCC § 2-312(3). That warranty, and the obligations in this clause 16(g), are given subject to the same carve-out as the indemnity in clause 16(h), and to no other qualification. If any allegation of infringement is made against the Company, the Group or any Customer (an IP Claim), the Supplier must at its own expense and at the Company’s option: (i) obtain for the Company, the Group and its Customers the right to continue using the Goods or Services; (ii) replace them with non-infringing equivalents of at least equal quality and functionality; (iii) modify them so that they become non-infringing without loss of functionality; or (iv) accept their return and refund the Price in full together with all Removal Costs. An IP Claim includes any investigation or proceeding before the United States International Trade Commission under section 337 of the Tariff Act of 1930 (19 U.S.C. § 1337), any exclusion order or cease and desist order made in it, and any proceeding before the Patent Trial and Appeal Board.

(h) IP indemnity. The Supplier must indemnify, defend and hold harmless the Company, the Group, their officers, employees and Customers against any IP Claim, including all liabilities, damages, losses, costs and expenses, attorneys’ fees and costs on a full indemnity basis, any enhanced damages for willful infringement under 35 U.S.C. § 284, any award of attorneys’ fees under 35 U.S.C. § 285 or 17 U.S.C. § 505, and any bond, single entry bond, cash deposit or redesign cost arising from a section 337 exclusion order.

Carve-out for the Company’s own design. That indemnity does not apply to the extent that the IP Claim arises solely from a design or specification furnished by the Company to the Supplier in Writing (including a Specification imposed under clause 5(b)), where the Supplier neither selected, contributed nor modified the element said to infringe, and the Supplier gave the Company Written notice of the infringement risk before performing the affected part of the Order. The Supplier bears the burden of establishing both limbs. In every other case the indemnity applies in full, including where the Goods or Services are made pursuant to or in compliance with the Supplier’s own design, instruction, specification or component selection, and including where a Company design or specification is one of several causes of the IP Claim.

The Supplier has conduct of the defense and settlement of an IP Claim on notice from the Company, provided that it must not admit liability on behalf of the Company or settle in any manner that imposes any obligation or restriction on the Company or any Customer without the Company’s prior Written consent, and the Company may participate in the defense with its own counsel at its own cost. If the Supplier fails to assume the defense promptly, the Company may defend and settle the IP Claim at the Supplier’s cost.

(i) No Company liability. Under no circumstances does the Company have any liability for any IP Claim arising from the Supplier’s designs, specifications, manufacturing processes, or inclusion of third party materials or components.

(j) Remedies not exclusive. The remedies in clause 16(g) are the Company’s primary remedies for infringement of third party Intellectual Property Rights, but nothing in this clause limits or excludes the Supplier’s obligations under clause 16(h) or clause 20, the Company’s right to any other remedy at law or in equity, including damages for lost profits, consequential loss, cost of cover and Removal Costs, or the Company’s right to terminate the Contract or reject the Goods or Services.

(k) Unlimited liability. The Supplier’s liability under this clause 16 is unlimited in amount and duration.

(l) Protection on rejection in bankruptcy — § 365(n). Each license granted to the Company under clause 16(e), and each escrow arrangement under clause 16(f), is a license to “intellectual property” as defined in § 101(35A) of the Bankruptcy Code to the maximum extent that definition allows. If the Contract is rejected by the Supplier as debtor in possession or by a trustee, the Company may elect under § 365(n)(1)(B) to retain its rights under the license for the duration of the Contract and any period for which the Company may extend it, and the Supplier must not interfere with those rights and must, on the Company’s Written request under § 365(n)(3) and (4), provide the intellectual property and any embodiment of it held under clause 16(f). Where the license extends to a trade mark, service mark or trade name, to which § 365(n) does not apply, the Parties record that rejection is a breach and not a rescission and does not terminate the Company’s rights, following Mission Product Holdings, Inc. v. Tempnology, LLC, 587 U.S. 370 (2019). An election under § 365(n) does not waive any claim of the Company for damages.

17. Compliance

(a) General. The Supplier must comply, and must procure that Supplier Personnel and its sub-tier suppliers comply, with all laws, regulations, standards, licenses, permits and codes applicable to the Supplier, to the Goods and Services, and to the performance of the Contract, in every jurisdiction and State of manufacture, transit, delivery and intended use. The Supplier must comply with any supplier code of conduct notified to the Supplier in Writing, and with any other policy so notified. Where the Order states that it is funded in whole or in part by a federal award, the Supplier must comply with the flow-down provisions of 2 C.F.R. Part 200 Appendix II and with the False Claims Act (31 U.S.C. §§ 3729–3733), and acknowledges that every certification it gives may be relied on in a certification to the United States.

(b) Trade Controls. The Supplier represents, warrants and undertakes that: (i) it has determined, and is solely responsible for ensuring ongoing compliance with, all applicable export control, import control, sanctions, trade compliance, anti-boycott and economic restriction laws and regulations (together, Trade Controls) of every relevant jurisdiction, including the jurisdiction of the Company, the country of manufacture, the country of origin of any component of the Goods, and every country of transit or delivery; (ii) the Goods, Services and all related technology, technical data and software are eligible for export, re-export, transfer (in-country) or supply to the Company and to the Delivery Point without violation of any Trade Controls, and it will provide the applicable classification and a statement of license requirement; and (iii) neither the Supplier, nor any of its Supplier Personnel, sub-tier suppliers or sources of the Goods, is a Restricted Party. The United States Trade Controls that apply include:

(i) the Export Administration Regulations (EAR), 15 C.F.R. Parts 730–774, administered by the Bureau of Industry and Security, including the Commerce Control List, the de minimis rules in 15 C.F.R. § 734.4, the Foreign Direct Product Rules in 15 C.F.R. § 734.9, the end-use and end-user controls in 15 C.F.R. Part 744 (including §§ 744.6, 744.11, 744.15, 744.21 and 744.23), and the license exceptions in Part 740. The Supplier must state for each item the ECCN or that the item is designated EAR99, its country of origin, its Schedule B or HTSUS number, and any license, license exception or authorization relied on;

(ii) the International Traffic in Arms Regulations (ITAR), 22 C.F.R. Parts 120–130, administered by the Directorate of Defense Trade Controls, and the United States Munitions List. The Supplier must state whether any item, technical data or defense service is ITAR-controlled, must be registered under 22 C.F.R. Part 122 if required, and must not deliver any ITAR-controlled item without the Company’s prior Written consent and an applicable authorization;

(iii) the economic sanctions programs administered by the Office of Foreign Assets Control under 31 C.F.R. Chapter V, the International Emergency Economic Powers Act (50 U.S.C. §§ 1701–1710) and the Trading with the Enemy Act, including the comprehensive programs applying to Cuba, Iran, North Korea, Syria, and the Crimea, Donetsk, Luhansk, Kherson and Zaporizhzhia regions of Ukraine, and the list-based and sectoral programs applying to Russia, Belarus, Venezuela and others, together with the OFAC fifty percent ownership rule;

(iv) the anti-boycott provisions of 15 C.F.R. Part 760 and of section 999 of the Internal Revenue Code. The Supplier must not comply with, and must report to the Company within five (5) Business Days, any request to participate in or cooperate with an unsanctioned foreign boycott, and must not include any boycott-related term in any document issued under the Contract;

(v) the Foreign Trade Regulations, 15 C.F.R. Part 30, including Electronic Export Information filing through the Automated Export System, and 19 C.F.R. Part 192 where the Supplier acts as United States principal party in interest or authorized agent; and

(vi) any measure of the European Union, the United Kingdom, Australia or the United Nations that binds the Company or any member of the Group, notified by the Company in Writing.

The Supplier must screen itself, Supplier Personnel, its sub-tier suppliers, its banks and the consignees and end users of the Goods against the lists identified in the definition of Sanctions Authority before each shipment and not less than monthly, and must keep records of that screening for five (5) years and provide them on request.

(c) Prohibited dealings. The Supplier must not source, manufacture, sell, export, re-export, transfer, tranship or supply the Goods or Services, directly or indirectly, in violation of any Trade Controls, including to or through any country, territory or region subject to comprehensive sanctions or embargo, or any Restricted Party. The Supplier warrants that it has no knowledge or reason to believe (within the meaning of 15 C.F.R. § 772.1) that the Goods or Services will be used, directly or indirectly, in any prohibited end use, including any activity described in 15 C.F.R. §§ 744.2 to 744.6 relating to nuclear, chemical or biological weapons or missiles, any military, military-intelligence or advanced computing end use described in 15 C.F.R. §§ 744.21, 744.22 or 744.23, unmanned aerial vehicles, or restricted surveillance applications.

(d) Country of origin and marking. The Supplier warrants that the country of origin stated on its documentation is accurate and determined in accordance with the applicable rule of origin — the substantial transformation test as applied by CBP, or the tariff-shift rules in 19 C.F.R. Part 102 where they govern — and that the Goods and their containers are marked with the country of origin in accordance with section 304 of the Tariff Act of 1930 (19 U.S.C. § 1304) and 19 C.F.R. Part 134, that is, in a conspicuous place, as legibly, indelibly and permanently as the nature of the article permits, in English, so as to indicate the country of origin to the ultimate purchaser in the United States. Where marking of the article is impracticable, the outermost container reaching the ultimate purchaser must be marked. The Supplier must notify the Company in Writing before dispatch of any change to the country of origin or place of manufacture of any Goods from that previously advised, and indemnifies the Company against all loss, marking duty under 19 U.S.C. § 1304(i), penalty under 19 U.S.C. § 1592, seizure or detention arising from an inaccurate origin declaration or marking failure. Any claim that Goods are of United States origin must satisfy the Federal Trade Commission “Made in USA” standard (“all or virtually all”) and the Made in USA Labeling Rule, 16 C.F.R. Part 323.

(e) Domestic content and procurement preferences. Where the Order states that the Goods are intended for a project subject to any domestic content, local content or origin-based procurement requirement, the Supplier must provide the certifications, manufacturing cost data, bills of materials and supporting evidence required to establish compliance, warrants that every certification it gives is accurate, and must notify the Company immediately of any change affecting its accuracy. The regimes that may apply are:

(i) the Buy American Act, 41 U.S.C. §§ 8301–8305, and FAR Part 25, requiring that an end product be manufactured in the United States and that the cost of its domestic components exceed the applicable threshold (65% from 2024, rising to 75% from 2029, under FAR 25.101), with certification in the form of FAR 52.225-2 or FAR 52.225-4;

(ii) the Build America, Buy America Act (BABA), sections 70901–70927 of the Infrastructure Investment and Jobs Act (Pub. L. 117-58), and 2 C.F.R. Part 184, requiring that all iron and steel, manufactured products and construction materials used in an infrastructure project receiving federal financial assistance be produced in the United States. For a manufactured product, all manufacturing processes must occur in the United States and the cost of components mined, produced or manufactured in the United States must exceed 55% of the total cost of all components, unless another standard is set by the awarding agency. The Supplier must give the certification required by the awarding agency, including any certification required under the NTIA Broadband Equity, Access, and Deployment (BEAD) Program, and must identify any general applicability, product-specific or de minimis waiver relied on;

(iii) the Trade Agreements Act, 19 U.S.C. §§ 2501–2582, and FAR Subpart 25.4, where the acquisition exceeds the applicable threshold and the Goods must be United States-made or designated country end products;

(iv) the Berry Amendment (10 U.S.C. § 4862) and the specialty metals restriction (10 U.S.C. § 4863) with DFARS 252.225-7008 to 252.225-7012, where the Goods are supplied for a Department of Defense project; and

(v) any State or municipal buy-American or local content preference requirement notified by the Company.

The Supplier acknowledges that each certification under this clause may be relied on by the Company in a certification to a federal agency and may give rise to liability under the False Claims Act.

(f) Network and supply chain security. The Supplier represents and warrants that the Goods do not constitute, and do not contain, and that the Supplier does not use as a substantial or essential component of any system, or as critical technology as part of any system, any covered telecommunications equipment or service, and specifically that the Goods and its systems are free of equipment, systems, services and components prohibited, restricted or designated under:

(i) section 889 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Pub. L. 115-232) and FAR 52.204-24, 52.204-25 and 52.204-26;

(ii) the Secure and Trusted Communications Networks Act of 2019 (47 U.S.C. §§ 1601–1609) and the FCC Covered List maintained under 47 C.F.R. § 1.50002, and the Secure Equipment Act of 2021 (Pub. L. 117-55) and the FCC equipment authorization prohibitions at 47 C.F.R. §§ 2.903 and 2.923(k);

(iii) the Information and Communications Technology and Services (ICTS) rules at 15 C.F.R. Part 7, made under Executive Order 13873 and administered by the Department of Commerce, and any ICTS prohibition or mitigation order;

(iv) the Federal Acquisition Supply Chain Security Act, 41 U.S.C. §§ 1321–1328, and any FASC Council exclusion or removal order; and

(v) section 5949 of the National Defense Authorization Act for Fiscal Year 2023 (Pub. L. 117-263) prohibiting covered semiconductor products and services.

The Supplier must provide a Written representation to that effect, in a form reasonably required by the Company and in a form that supports the Company’s own representations under FAR 52.204-24 and its annual certification under 47 C.F.R. § 54.9 that no universal service support is used to purchase, rent, lease or maintain covered communications equipment or services, must notify the Company immediately if the representation ceases to be accurate, and must provide the supply chain information the Company requires to make representations to Customers and regulators, including to the FCC under the Supply Chain Reimbursement Program and to CISA. The Supplier must maintain a cyber supply chain risk management program consistent with NIST SP 800-161 Rev. 1 and, where the Order so states, must comply with NIST SP 800-171 and DFARS 252.204-7012, 252.204-7019, 252.204-7020 and 252.204-7021 (CMMC).

(g) Anti-bribery and anti-corruption. The Supplier must comply with all applicable anti-bribery, anti-corruption, anti-money laundering, anti-fraud and sanctions-evasion laws, and must not offer, give, request, accept or authorize any bribe, kickback, facilitation payment or other improper advantage in connection with the Contract. The applicable regimes include:

(i) the Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd-1, 78dd-2 and 78dd-3 (anti-bribery) and 15 U.S.C. § 78m(b)(2) (books, records and internal accounting controls), which has extraterritorial effect;

(ii) the Foreign Extortion Prevention Act, 18 U.S.C. § 1636, which criminalizes the demand side of foreign bribery;

(iii) domestic bribery and gratuity offenses under 18 U.S.C. § 201, the Anti-Kickback Act of 1986 (41 U.S.C. §§ 8701–8707) and FAR 52.203-7 where federal funds are involved, the Travel Act (18 U.S.C. § 1952), and the mail and wire fraud statutes (18 U.S.C. §§ 1341, 1343);

(iv) the Bank Secrecy Act (31 U.S.C. §§ 5311 et seq.), the Anti-Money Laundering Act of 2020, the money laundering offenses at 18 U.S.C. §§ 1956 and 1957, and the beneficial ownership reporting requirements of the Corporate Transparency Act (31 U.S.C. § 5336) to the extent they apply to the Supplier; and

(v) the anti-bribery laws of any other jurisdiction that binds the Supplier or any member of the Group, including the UK Bribery Act 2010 and Australia’s foreign bribery offenses.

The Supplier is prohibited from making any facilitation payment, notwithstanding the exception for facilitating payments in the Foreign Corrupt Practices Act, and must maintain adequate procedures designed to prevent bribery and the facilitation of tax evasion by Supplier Personnel and sub-tier suppliers, members of the Group being subject to regimes that impose failure-to-prevent offenses. The Supplier must maintain accurate books and records of all payments made in connection with the Contract, and must provide evidence of those procedures and records on request. Breach of this clause is a material breach entitling the Company to terminate immediately under clause 13(b).

(h) Forced labor and responsible labor. The Supplier warrants that no Goods, and no component, input or raw material of any Goods, are produced, mined, manufactured or transported wholly or in part using forced labor, convict labor, indentured labor, bonded labor, child labor or human trafficking. The Supplier must comply with:

(i) section 307 of the Tariff Act of 1930 (19 U.S.C. § 1307), which prohibits the importation of merchandise mined, produced or manufactured wholly or in part by forced or convict labor, and with any Withhold Release Order or Finding issued by CBP under 19 C.F.R. §§ 12.42–12.45;

(ii) the Uyghur Forced Labor Prevention Act (Pub. L. 117-78), under which there is a rebuttable presumption that any goods mined, produced or manufactured wholly or in part in the Xinjiang Uyghur Autonomous Region, or by an entity on the UFLPA Entity List, are made with forced labor and are prohibited from entry. The Supplier warrants that no Goods and no input to them (including silica, quartz, polysilicon, aluminum, polyvinyl chloride and any other input identified in the UFLPA Strategy) originate in whole or in part from the XUAR or from any listed entity, and must, within five (5) Business Days of request, provide the supply chain tracing documentation to raw material level, in the form and to the evidentiary standard set out in the CBP UFLPA Operational Guidance for Importers, needed to rebut the presumption or to establish that the applicability review does not arise;

(iii) the Trafficking Victims Protection Reauthorization Act and, where federal funds are involved, FAR 52.222-50 (Combating Trafficking in Persons) and FAR 52.222-19 (Child Labor), including the compliance plan and certification requirements; and

(iv) the California Transparency in Supply Chains Act (Cal. Civ. Code § 1714.43) and any other State supply chain disclosure statute, and must provide the information the Company reasonably requires to prepare a disclosure or statement under that Act, under the UK Modern Slavery Act 2015 or the Australian Modern Slavery Act 2018 where a member of the Group is a reporting entity, or to respond to a Customer or regulator inquiry.

The Supplier bears all cost, duty, demurrage, detention, storage, re-export and replacement cost of any detention or exclusion of Goods under this clause, and must supply replacement Goods from a compliant source at no additional cost.

(i) Responsible minerals. The Supplier must provide, on request, all information the Company requires regarding the presence, source, smelter and chain of custody of tin, tantalum, tungsten, gold, cobalt, mica and any other designated mineral in the Goods. The Supplier must complete and keep current the Responsible Minerals Initiative Conflict Minerals Reporting Template (CMRT) and Extended Minerals Reporting Template (EMRT), conduct due diligence consistent with the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas, source only from smelters and refiners conformant with the Responsible Minerals Assurance Process, and provide any further information a Customer requires to meet its own conflict minerals obligation under section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (15 U.S.C. § 78m(p)), SEC Rule 13p-1 and Form SD.

(j) Product and environmental compliance. The Supplier warrants that the Goods comply with all applicable product safety, electrical safety, electromagnetic compatibility, telecommunications, radio, laser safety, energy efficiency, chemical content, hazardous substance, packaging and end-of-life requirements applicable in each State of delivery and in any jurisdiction the Company has notified the Goods are destined for, and that the Goods bear all required marks. The applicable requirements include:

(i) Radio and telecommunications: equipment authorization under 47 C.F.R. Part 2, Subpart J, by Certification through a Telecommunication Certification Body or by Supplier’s Declaration of Conformity as applicable; compliance with 47 C.F.R. Part 15 (unintentional and intentional radiators) and Part 68 (terminal equipment connected to the public switched telephone network) or the corresponding ACTA/TIA-968 criteria; display of the FCC Identifier or the SDoC compliance information statement, and provision of the test report, measurement data and the Grant of Equipment Authorization; and compliance with the equipment authorization prohibitions in clause 17(f)(ii);

(ii) Electrical and fire safety: listing, labeling or certification by a Nationally Recognized Testing Laboratory recognized by OSHA under 29 C.F.R. § 1910.7 (for example UL, Intertek/ETL, CSA), to the applicable standard (including UL 1651 for optical fiber cable, UL 444 for communications cable, UL 2024 for raceways and UL 62368-1 for equipment), and conformity with the National Electrical Code (NFPA 70), in particular Article 770 (optical fiber cables and raceways) and Article 800/805 (communications circuits), and with the National Electrical Safety Code (IEEE C2) for outside plant;

(iii) Laser safety: compliance with the FDA Center for Devices and Radiological Health requirements at 21 C.F.R. §§ 1040.10 and 1040.11, including product classification, labeling, and the filing of an initial report and accession number, together with ANSI Z136.2 and IEC 60825-1 as accepted under FDA Laser Notice No. 56, for every laser, transceiver, optical amplifier and OTDR;

(iv) Chemicals and substances: the Toxic Substances Control Act (15 U.S.C. §§ 2601 et seq.), including the § 5 significant new use rules, the § 6(h) persistent, bioaccumulative and toxic chemical rules (including PIP (3:1) at 40 C.F.R. § 751.405, decaBDE and phenol, isopropylated phosphate (3:1)), the § 8(a)(7) PFAS reporting rule at 40 C.F.R. Part 705, the Chemical Data Reporting rule, and the § 13 import certification; California Proposition 65 (Cal. Health & Safety Code § 25249.6 and 27 C.C.R. §§ 25601–25607); State RoHS-style statutes (including California SB 20/50, Cal. Pub. Res. Code § 25214.10); and State PFAS restrictions (including 38 M.R.S. § 1614 (Maine) and Minn. Stat. § 116.943 (Amara’s Law)). Where the Order or a Customer requires it, the Supplier must also certify compliance with EU Directive 2011/65/EU (RoHS) and Regulation (EC) No 1907/2006 (REACH) as a contractual specification, not as a matter of United States law;

(v) Energy and efficiency: DOE energy conservation standards at 10 C.F.R. Parts 429, 430 and 431, FTC EnergyGuide labeling at 16 C.F.R. Part 305, and ENERGY STAR requirements where the Order so states;

(vi) Batteries and end-of-life: the Mercury-Containing and Rechargeable Battery Management Act (42 U.S.C. §§ 14301–14336), the Universal Waste rules at 40 C.F.R. Part 273, the Resource Conservation and Recovery Act, and the electronic waste, battery and product stewardship statutes of the States of delivery; and

(vii) Environmental marketing: the FTC Green Guides, 16 C.F.R. Part 260, in respect of any recyclability, recycled content, degradability or carbon claim.

The Supplier must provide all declarations of conformity, grants, test reports, certificates, Safety Data Sheets, full material declarations, chemical content and PFAS declarations, registration and accession numbers and warning materials the Company requires to import, hold, resupply, install and dispose of the Goods lawfully.

(k) Information for onward certification. On the Company’s request at any time, whether before or after delivery, the Supplier must promptly provide at its own cost all information, documentation, certification, declaration or assistance the Company requires to verify or maintain its own compliance, or to satisfy any representation, certification or disclosure obligation the Company owes to any Customer or regulator, including CBP, the FCC, the SEC (through a Customer), NTIA, a State public utility commission or a federal grant administrator, and must ensure that everything it provides is accurate and complete. The Supplier acknowledges that the Company relies on that information and that inaccurate information may expose the Company to liability under the False Claims Act, 19 U.S.C. § 1592 or 18 U.S.C. § 1001.

(l) Audit and suspension. The Company may audit the Supplier’s compliance with this clause 17, including by document review, questionnaire and on-site audit under clause 5(g). If at any time the Company reasonably believes, or is notified, that the transaction, the Goods or the Services may violate any Trade Controls or any obligation in this clause 17, the Company may, without liability and in addition to every other right: (i) suspend or terminate the Contract immediately; (ii) withhold payment, delivery or Acceptance; and (iii) require the Supplier to remedy the issue at its own expense. Where a suspension is required to comply with a blocking or sanctions requirement, the Company’s performance is excused for so long as the requirement subsists.

(m) Indemnity. The Supplier must fully indemnify, defend and hold harmless the Company, the Group and their directors, officers and employees from and against all losses, liabilities, claims, damages, costs, expenses (including attorneys’ fees and costs on a full indemnity basis), fines, civil and criminal penalties, forfeitures, detentions, exclusions, seizures, liquidated damages, disgorgement, debarment and suspension costs, and proceedings arising from or related to any breach of this clause 17 by the Supplier, Supplier Personnel or any sub-tier supplier. The Supplier’s liability under this clause is unlimited in amount and duration. Nothing in this clause requires indemnification of a liability whose indemnification is prohibited by law or public policy, and the balance of the indemnity is unaffected if any part is so limited.

(n) Emissions, energy and climate data. The Supplier must, on the Company’s Written request and at its own cost, provide within thirty (30) days (or, where the request relates to a reporting deadline notified by the Company, within the period the Company notifies, being not less than twenty (20) Business Days) accurate and complete data on: (i) the greenhouse gas emissions attributable to the Goods and Services supplied to the Company, including the Supplier’s Scope 1 and Scope 2 emissions and, so far as it is reasonably able, the Scope 3 emissions in its own upstream supply chain, together with product- or category-level emissions intensity and product carbon footprint data; (ii) the energy consumed in producing and transporting the Goods, and the proportion drawn from renewable sources; (iii) the methodology, emission factors, organizational and operational boundaries, base year and assumptions used, and whether the data is measured, calculated or estimated; and (iv) any assurance, verification or third party review obtained in respect of that data, and any climate-related financial risk or transition plan disclosure the Supplier has published.

The data must be prepared on a basis consistent with the Greenhouse Gas Protocol Corporate Standard and Corporate Value Chain (Scope 3) Standard, or with any other methodology the Company reasonably nominates, so that the Company, the Group and their Customers can meet their own climate and sustainability reporting obligations, including under the California Climate Corporate Data Accountability Act (SB 253, Cal. Health & Safety Code § 38532) and the Climate-Related Financial Risk Act (SB 261, Cal. Health & Safety Code § 38533), any equivalent statute of another State, any SEC or other federal climate disclosure requirement, and any obligation owed to a Customer or regulator. The Supplier warrants that the data it provides is accurate and not misleading, must notify the Company promptly if it becomes aware that data previously provided was inaccurate, must retain the supporting records for not less than seven (7) years, and must provide reasonable assistance to any assurance provider engaged by the Company or a Customer. Any environmental or carbon claim made by the Supplier in that data must comply with the FTC Green Guides, 16 C.F.R. Part 260. Data provided under this clause is Supplier Technical Information for the purposes of clause 15(j).

18. Data Protection

(a) Definitions and applicable law. In this clause, Personal Information means any information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or household, and that is protected under any applicable privacy or data protection law, and includes “personal information”, “personal data” and “sensitive personal information” as defined in any such law. Data Protection Law means all privacy, data protection, data security, data breach notification, data localization and electronic communications laws, regulations, binding codes and regulator guidance applicable to the Parties or to the processing of Personal Information under the Contract.

The regimes that apply to the Contract are:

(i) State comprehensive privacy statutes, including the California Consumer Privacy Act as amended by the California Privacy Rights Act (Cal. Civ. Code §§ 1798.100 et seq.) and its regulations (11 C.C.R. §§ 7000 et seq.), enforced by the California Privacy Protection Agency and the California Attorney General; the Delaware Personal Data Privacy Act (6 Del. C. ch. 12D); and the comprehensive privacy statutes of Virginia, Colorado, Connecticut, Utah, Texas, Oregon, Montana, and each other State that enacts one, each enforced by the relevant State Attorney General;

(ii) State data breach notification statutes in all fifty States, the District of Columbia and the United States territories, including Del. Code tit. 6, §§ 12B-100 et seq. and Cal. Civ. Code §§ 1798.82 and 1798.29;

(iii) State data security statutes, including the New York SHIELD Act (N.Y. Gen. Bus. Law § 899-bb) and the Massachusetts data security regulations (201 C.M.R. 17.00), which require a written information security program;

(iv) sector-specific telecommunications privacy rules, being section 222 of the Communications Act (47 U.S.C. § 222) and the Customer Proprietary Network Information (CPNI) rules at 47 C.F.R. §§ 64.2001–64.2011, including the annual CPNI certification and the FCC data breach notification rule at 47 C.F.R. § 64.2011 (notification to the FCC, the FBI and the United States Secret Service within seven (7) business days of a reasonable determination of a breach), together with section 631 of the Communications Act (47 U.S.C. § 551) for cable operators;

(v) other federal sectoral regimes to the extent engaged, including the Gramm-Leach-Bliley Act and the FTC Safeguards Rule (16 C.F.R. Part 314), the Fair Credit Reporting Act, the Health Insurance Portability and Accountability Act, the Children’s Online Privacy Protection Act, the Telephone Consumer Protection Act, and the Electronic Communications Privacy Act and Computer Fraud and Abuse Act; and

(vi) section 5 of the Federal Trade Commission Act (15 U.S.C. § 45), under which a failure to implement reasonable data security or a misrepresentation about privacy practices is an unfair or deceptive act or practice.

The mandatory “service provider” or “contractor” contract content required by Cal. Civ. Code § 1798.100(d) and 11 C.C.R. § 7051, and the equivalent processor contract requirements of the other State comprehensive privacy statutes, are incorporated by clause 18(l).

(b) Processing on instructions. The Supplier must process Personal Information received from or on behalf of the Company only on the Company’s documented instructions, only to the extent necessary to perform the Contract, and for no other purpose. The Supplier must not sell or share Personal Information within the meaning of Cal. Civ. Code § 1798.140(ad) and (ah), must not retain, use or disclose it outside the direct business relationship between the Parties, must not combine it with information received from any other source except as permitted by 11 C.C.R. § 7050(b), and must not use it to train, fine-tune or evaluate any artificial intelligence or machine learning model or for any other commercial purpose of its own.

(c) Security. The Supplier must implement and maintain a written information security program, and appropriate technical and organizational measures appropriate to the risk, to protect Personal Information and the Company’s data against loss, misuse, unauthorized or unlawful access, disclosure, alteration and destruction, including access control, multi-factor authentication, encryption in transit and at rest, logging and monitoring, vulnerability and patch management, secure development, penetration testing, incident response and business continuity measures. Those measures must at a minimum satisfy the NIST Cybersecurity Framework, the requirements of 201 C.M.R. 17.03 and N.Y. Gen. Bus. Law § 899-bb, and any control set specified in the Order.

(d) Personnel. The Supplier must ensure that all Supplier Personnel with access to Personal Information are subject to binding obligations of confidentiality, are appropriately trained, are subject to background screening to the extent permitted by law, and have access only on a need to know basis. The Supplier must remove all access rights immediately when any person ceases to require them, including on that person leaving the Supplier’s business, and must notify the Company of the removal of access for any person holding privileged access to the Company’s systems or accounts.

(e) Sub-processing. The Supplier must not engage any subcontractor, service provider or other Person to process Personal Information without the Company’s prior Written consent, and must impose on any approved sub-processor, by written contract, obligations no less protective than this clause 18, as required by 11 C.C.R. § 7051(a)(6) and the equivalent State requirements. The Supplier remains fully liable for the acts and omissions of every sub-processor.

(f) Cross-border transfer and government access. The following constraints apply and the Supplier must comply with them:

(i) the Protecting Americans’ Data from Foreign Adversaries rules made under Executive Order 14117 and administered by the Department of Justice at 28 C.F.R. Part 202, which prohibit or restrict data brokerage and other covered data transactions involving bulk United States sensitive personal data or government-related data with countries of concern (the People’s Republic of China including Hong Kong and Macau, Russia, Iran, North Korea, Cuba and Venezuela) or covered persons, and which impose CISA security requirements on restricted transactions. The Supplier warrants that no processing under the Contract is a prohibited transaction, and must not permit access to Personal Information by any covered person without the Company’s prior Written consent; and

(ii) any State statute or contractual commitment to a Customer requiring data to be held or accessed only within the United States or a named State.

Subject to those constraints, the Supplier must not transfer, store, access or permit access to Personal Information outside the United States, or outside any jurisdiction specified in the Order, without the Company’s prior Written consent, and where the Company consents to a transfer from the European Economic Area, the United Kingdom or another jurisdiction that restricts outbound transfers, the Supplier must execute the applicable standard contractual clauses or equivalent instrument and complete any transfer impact assessment the Company requires. The Supplier must notify the Company, so far as lawful, of any request by any government authority for access to Personal Information, including any request under the CLOUD Act, the Foreign Intelligence Surveillance Act or a national security letter, must challenge any overbroad request, and must disclose only the minimum required.

(g) Breach notification. The Supplier must notify the Company in Writing within twenty-four (24) hours of becoming aware of any actual or suspected breach of security, unauthorized access, loss or unauthorized disclosure affecting Personal Information or any other data or system of the Company, including any breach affecting the Company’s account or access credentials on any portal or system operated by the Supplier. The Parties record that this period is shorter than any statutory period and is set so as to allow the Company to meet its own obligations, including the seven (7) business day FCC notification under 47 C.F.R. § 64.2011 and the State notification deadlines (as short as thirty (30) days in some States). The notification must include all information the Company requires to assess the incident and to meet its own notification obligations, and the Supplier must provide updates, cooperate fully, preserve evidence in forensically sound form, take immediate containment and remediation steps at its own cost, fund credit monitoring and identity restoration services where the Company reasonably requires them, and must not notify any individual, regulator or media outlet about an incident affecting the Company’s data without the Company’s prior Written consent unless required by law.

(h) Assistance. The Supplier must promptly assist the Company, at the Supplier’s cost, in responding to any request from an individual to exercise a right of access, deletion, correction, portability, opt-out of sale or sharing, or limitation of use of sensitive personal information, and in meeting any obligation of risk assessment, data protection assessment, consultation, notification or cooperation with a regulator.

(i) Records and audit. The Supplier must maintain complete and accurate records demonstrating compliance with this clause 18, and must permit the Company or its designated auditor to monitor and audit its compliance, including of its information security controls and of any sub-processor, by manual review, automated scanning, or by providing an annual SOC 2 Type II report or equivalent third party assessment, as contemplated by 11 C.C.R. § 7051(a)(7).

(j) Return and deletion. On expiry or termination of the Contract, or on the Company’s Written request, the Supplier must erase, destroy or return all Personal Information and other Company data, including all copies and all copies held by sub-processors, and must certify in Writing that it has done so. Where Goods containing data are returned to the Supplier, the Supplier must apply secure media sanitization to NIST SP 800-88 Rev. 1 before any reuse, resale or disposal.

(k) Warranties and indemnity. The Supplier represents and warrants that it has the necessary authority, consents and notices in place to process Personal Information as permitted under the Contract, that it maintains appropriate data protection and information security policies, and that it complies with Data Protection Law. The Supplier indemnifies the Company and the Group against all loss, liability, damages, costs, expenses, regulatory fines and civil penalties arising from any breach of this clause 18 or of Data Protection Law by the Supplier, Supplier Personnel or any sub-processor, including the cost of notification, forensic investigation, credit monitoring, call center operation and defense of any class action.

(l) Statutory service provider terms incorporated. For the purposes of Cal. Civ. Code § 1798.100(d) and 11 C.C.R. § 7051, and of the equivalent processor contract requirements of every other applicable State comprehensive privacy statute, the Supplier is a “service provider”, “contractor” or “processor” and not a “third party”, and the Parties record that: (i) Personal Information is disclosed only for the limited and specified business purposes set out in the Order; (ii) the Supplier must comply with all applicable obligations under those statutes and provide the same level of privacy protection as they require of the Company; (iii) the Company may take reasonable and appropriate steps to stop and remediate the Supplier’s unauthorized use of Personal Information; (iv) the Supplier must notify the Company within five (5) Business Days if it determines it can no longer meet its obligations under those statutes; and (v) no monetary or other valuable consideration is provided by the Supplier to the Company for Personal Information, and no disclosure to the Supplier is a sale or sharing of Personal Information.

19. Insurance

(a) Required insurance. The Supplier must, at its own cost, effect and maintain with insurers of recognized standing the following insurance, on terms covering its liabilities under the Contract, for the term of the Contract and, in the case of products and completed operations liability and professional indemnity, for a period expiring on the later of six (6) years after the last delivery or completion and eighty-four (84) months after the last delivery of Goods under any Order, that period being fixed so as to run to the outer bound of the Warranty Period stated in clause 9(b) (by continuous cover or, for claims-made policies, by an extended reporting period of that length):

(i) commercial general liability on an ISO CG 00 01 occurrence form or equivalent, including products and completed operations, contractual liability, personal and advertising injury and independent contractors coverage, of not less than two million United States dollars (USD 2,000,000) each occurrence, four million United States dollars (USD 4,000,000) general aggregate and four million United States dollars (USD 4,000,000) products and completed operations aggregate, together with umbrella or excess liability of not less than ten million United States dollars (USD 10,000,000) each occurrence and in the aggregate sitting above the commercial general liability, automobile liability and employers’ liability policies;

(ii) where the Supplier provides certification, testing, calibration or other professional Services, professional liability (errors and omissions) insurance, including technology errors and omissions where software or firmware is supplied, of not less than five million United States dollars (USD 5,000,000) each claim and in the annual aggregate, with a retroactive date not later than the date of the first Order;

(iii) marine and inland transit cargo insurance covering the Goods on an all risks, warehouse to warehouse basis for not less than one hundred and ten percent (110%) of their invoice value plus freight and duty, for the whole of the transit to the Delivery Point, with the Company named as loss payee as its interests may appear;

(iv) workers’ compensation insurance for all Supplier Personnel in statutory amounts as required by the workers’ compensation act of each State in which Supplier Personnel are employed or perform work under the Contract (and, in the monopolistic States of North Dakota, Ohio, Washington and Wyoming, coverage through the State fund together with stop-gap employers’ liability), including where applicable coverage under the Longshore and Harbor Workers’ Compensation Act and the Jones Act, together with employers’ liability of not less than one million United States dollars (USD 1,000,000) each accident, one million United States dollars (USD 1,000,000) disease each employee, and one million United States dollars (USD 1,000,000) disease policy limit;

(v) where the Supplier or Supplier Personnel use vehicles in connection with the Contract, including in delivering the Goods or attending the Delivery Point, business automobile liability covering any auto (owned, hired and non-owned) of not less than two million United States dollars (USD 2,000,000) combined single limit each accident, together with the MCS-90 endorsement where hazardous materials are transported and any coverage required by the State compulsory financial responsibility law; and

(vi) where the Supplier processes Personal Information or connects to the Company’s systems, cyber liability, network security, privacy liability and data breach response insurance of not less than five million United States dollars (USD 5,000,000) each claim and in the annual aggregate, including regulatory defense and penalties coverage where insurable, breach response and notification costs, and coverage for the acts of sub-processors.

(b) Insurer standing. Each policy must be placed with an insurer admitted and licensed in the State in which the work is performed or the Goods are delivered or, where surplus lines placement is permitted, with an insurer eligible under that State’s surplus lines law, and rated not less than A.M. Best “A− VII” or Standard & Poor’s “A−”. Fronting arrangements, captives and self-insured retentions above one hundred thousand United States dollars (USD 100,000) require the Company’s prior Written approval.

(c) Company’s interest. Each liability policy other than workers’ compensation and professional liability must: (i) name the Company and each member of the Group as additional insureds on ISO forms CG 20 10 (ongoing operations) and CG 20 37 (completed operations), or their equivalents; (ii) be primary and non-contributory with any insurance of the Company (ISO form CG 20 01 or equivalent); (iii) include a separation of insureds or cross-liability provision; and (iv) include a waiver of subrogation in favor of the Company and the Group (ISO form CG 24 04 or equivalent).

Workers’ compensation — waiver of subrogation only. The exclusion of workers’ compensation from the opening words of this clause 19(c) applies to paragraphs (i) to (iii) only. The workers’ compensation and employers’ liability insurance required by clause 19(a)(iv) must also carry a waiver of subrogation in favor of the Company and the Group, on ISO form WC 00 03 13 (Waiver of Our Right to Recover from Others Endorsement) or its equivalent, in each State in which the law permits that waiver; where the law of a State prohibits or restricts it, the requirement applies in that State to the maximum extent permitted. The Company is not named as an additional insured on, and paragraphs (i) to (iii) do not apply to, any workers’ compensation policy.

(d) Evidence. The Supplier must provide ACORD 25 certificates of insurance, and additional insured and waiver of subrogation endorsements, on request, on renewal, and in any event annually, and must provide policy wordings on reasonable request.

(e) Notification. The Supplier must notify the Company immediately, and in any event not less than thirty (30) days before the effective date where the change is within its control, if any required policy is canceled, lapses, is not renewed, is materially altered, or if any limit is materially eroded by claims, and must reinstate cover promptly.

(f) No limitation of liability. The existence, terms, limits, exclusions or adequacy of any insurance, and the availability or non-availability of any recovery under it, do not limit the Supplier’s liability under the Contract. The Supplier is responsible for all deductibles, excesses and self-insured retentions.

(g) Subcontractors. The Supplier must procure that each of its subcontractors maintains insurance appropriate to the work it performs and to the risk it presents, on terms no less protective of the Company than this clause, and must collect and retain evidence of it.

20. Indemnities

(a) General indemnity. The Supplier must indemnify, defend, release and hold harmless the Company, the Group, and their respective successors, assigns, directors, officers, employees, agents and representatives from and against all loss, liability, claims, judgments, settlement amounts, damages, deficiencies, fines, penalties, expenses (including reasonable attorneys’ fees, expert fees and costs on a full indemnity basis) and costs, directly or indirectly caused by, arising out of, or relating to: (i) any breach of the Contract by the Supplier or Supplier Personnel; (ii) any negligent, grossly negligent, reckless, fraudulent or willful act or omission of the Supplier or Supplier Personnel; (iii) any Defect in the Goods or Services, and any claim by any Person for death, personal injury or loss of or damage to property arising from the Goods or Services; (iv) any Recall, as provided in clause 11(g); (v) any IP Claim, to the extent and subject to the carve-out provided in clause 16(h), including any claim arising from the Intellectual Property Rights in the Goods or in the packages or containers in which they are shipped, and any infringement arising from designs, specifications, instructions, components or equipment furnished, selected or required by the Supplier; (vi) any breach of clause 17, as provided in clause 17(m); (vii) any breach of clause 18 or of Data Protection Law, as provided in clause 18(k); (viii) any claim by any of the Supplier Personnel, including any claim relating to employment, engagement, wage and hour, worker classification, benefits, entitlements, discrimination, or workplace injury, and any claim that the Company is a joint or co-employer of any Supplier Personnel under the Fair Labor Standards Act, the National Labor Relations Act, Title VII of the Civil Rights Act of 1964, ERISA, any State wage and hour or worker classification statute (including any statute applying an “ABC” test), or the common law; and (ix) any claim by a Customer arising from the Goods or Services or from the Supplier’s performance or non-performance.

(b) Conduct of claims. The Company will notify the Supplier of any claim to which an indemnity applies. The Supplier must, on the Company’s request, assume the defense of the claim with counsel reasonably acceptable to the Company, and must not settle it in any way that imposes any obligation, admission, restriction or reputational detriment on the Company or any Customer without the Company’s prior Written consent. The Company may participate in the defense with its own counsel, and may assume the defense at the Supplier’s cost if the Supplier fails to do so promptly or fails to conduct it diligently. A failure or delay in notification does not relieve the Supplier of its obligations except to the extent it is actually and materially prejudiced by it.

(c) Nature of the indemnities. Each indemnity is a continuing obligation, is independent of the Supplier’s other obligations, survives termination or expiry of the Contract, and is enforceable without the Company first incurring expense or making payment. Recovery under an indemnity is not reduced by any insurance recovery the Company makes or could have made, and the Company is under no obligation to claim on any policy before enforcing an indemnity. The duty to defend is separate from and broader than the duty to indemnify, arises on tender of the claim, and applies where any part of a claim is potentially within the indemnity.

(d) Contribution. Each indemnity is reduced proportionately to the extent that the loss was caused by the negligent act or omission of the Company or by the Company’s breach of the Contract. Clause 20(d) does not apply to the indemnity in clause 16(h), the scope of which is determined solely by the carve-out stated in that clause.

(e) Effect of mandatory State rules. Where a mandatory rule of any State applies to an indemnity in the Contract notwithstanding clause 25(a), that indemnity applies to the maximum extent that rule permits and no further, and is read down rather than severed, in accordance with clause 24(e). Clause 20(d) is intended to bring each indemnity within any comparative fault carve-out available under such a rule.

21. Limitation of Liability

(a) No limitation of the Supplier’s liability for certain matters. Nothing in these Conditions limits or excludes the Supplier’s liability for: (i) death or personal injury caused by its negligence or that of Supplier Personnel; (ii) fraud, fraudulent misrepresentation or fraudulent inducement; (iii) product liability for defective goods, whether in strict liability, negligence or breach of warranty; (iv) breach of clause 15, clause 16, clause 17 or clause 18; (v) any indemnity given under the Contract; (vi) gross negligence, willful misconduct, recklessness or abandonment of performance; (vii) any obligation to pay a civil or criminal fine or penalty imposed on the Supplier; (viii) any liability arising under UCC § 1-304 (obligation of good faith), UCC § 1-302(b) (obligations of good faith, diligence, reasonableness and care, which may not be disclaimed), UCC § 2-302 (unconscionability) and UCC § 2-316 (to the extent a disclaimer of implied warranty is ineffective); (ix) any liability under the Defend Trade Secrets Act, the False Claims Act or any Trade Controls statute; and (x) any matter in respect of which it would be unlawful, or contrary to the public policy of the governing jurisdiction, to exclude or restrict liability.

(b) Supplier liable for all loss. Subject to clause 21(a) and to the maximum extent permitted by law, the Supplier is liable for all loss the Company suffers arising from the Supplier’s breach of the Contract, including special, indirect and consequential loss and loss of revenue, business, profits, contract, goodwill, production and use, and Removal Costs, all of which are recoverable as incidental and consequential damages under UCC § 2-715(2) and are agreed to have been within the contemplation of the Parties. Nothing in this clause creates an entitlement to punitive or exemplary damages for breach of contract, and nothing in it limits the Company’s right to recover punitive or exemplary damages where they are available in tort, under the Defend Trade Secrets Act, or under any other statute. No limitation or exclusion of the Supplier’s liability applies except as expressly set out in these Conditions, and no limitation or exclusion stated by the Supplier in any other document has any effect.

(c) Damage to Company systems. The Supplier is responsible for any damage to or loss of the Company’s programs, data, systems or equipment caused by the Goods, the Services, or by Supplier Personnel.

(d) Company’s liability cap. Subject to clause 21(f), the Company’s total liability to the Supplier in respect of all claims arising under or in connection with the Contract does not in any circumstance exceed the greater of: (i) the Price of the Goods and Services under the Order to which the claim relates; and (ii) the total of all amounts paid by the Company to the Supplier under all Orders in the twelve (12) months immediately preceding the date on which the claim was first notified to the Company in Writing. Where the claim does not relate to any particular Order — including a claim under clause 15(j) — the amount in paragraph (i) is nil and the cap is the amount given by paragraph (ii). Where the amount given by this clause is nil, this clause 21(d) does not apply to that claim, and the Company’s liability for it is limited only by clause 21(e) and by law. This clause fixes a limit of liability; it is not an exclusion of liability.

(e) Company’s excluded loss. THE COMPANY IS NOT LIABLE TO THE SUPPLIER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL LOSS, OR FOR ANY LOSS OF REVENUE, BUSINESS, PROFIT, CONTRACT, GOODWILL, ANTICIPATED SAVING OR OPPORTUNITY, HOWEVER ARISING AND WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS. This clause is set out in capitals so as to be conspicuous within the meaning of UCC § 1-201(b)(10).

(f) Non-excludable liabilities. Clauses 21(d) and 21(e) do not apply to any liability of the Company that cannot lawfully be excluded, restricted or modified, or that arises from the Company’s own fraud or willful misconduct. If any limitation in clause 21(d) or 21(e) is held to fail of its essential purpose under UCC § 2-719(2), the remaining limitations continue to apply to the maximum extent permitted by law.

(g) Unlimited items — declaratory. This clause 21(g) is declaratory only and adds nothing to clauses 16(k), 17(m) and 21(a). For convenience of reference, the Supplier’s liability under clauses 11(g), 16 (the whole of that clause, as clause 16(k) provides), 17(m), 18(k) and 20 is unlimited in amount and duration.

22. Assignment and Subcontracting

(a) Company. The Company may at any time assign, transfer, novate, charge, mortgage, pledge, subcontract or otherwise deal with all or any of its rights or obligations under the Contract, including to any member of the Group or to any purchaser of its business, and including by merger, consolidation, conversion or division under the Wyoming Business Corporation Act or under the corporations law of any other jurisdiction in which the Company is for the time being incorporated, without the Supplier’s consent. No such transaction is an assignment requiring consent, and any provision to the contrary in any document of the Supplier is of no effect.

(b) Supplier. The Supplier may not assign, transfer, novate, charge, mortgage, pledge, delegate, declare a trust over or otherwise deal with any of its rights or obligations under the Contract, whether voluntarily, by operation of law, by change of control or by merger, without the Company’s prior Written consent. Any purported dealing without consent is void. The Parties record that UCC §§ 9-406 and 9-408 limit the effectiveness of this clause as against an assignee of an account, a payment intangible or certain general intangibles, and clause 4(j) applies to any receivable; the delegation of the Supplier’s performance obligations is not affected by those sections and remains prohibited, and the Company may treat any delegation as creating reasonable grounds for insecurity under clause 13(c) and UCC § 2-210(5).

(c) Subcontracting. The Supplier may not subcontract the manufacture of the Goods, or any material part of the performance of the Services, without the Company’s prior Written consent. Consent does not relieve the Supplier of any obligation or liability, and the Supplier remains fully responsible for the acts and omissions of every subcontractor as if they were its own. The Supplier must flow down to each subcontractor obligations no less protective of the Company than clauses 5, 6, 9, 11, 15, 16, 17, 18 and 19, together with any clause required to be flowed down by 2 C.F.R. Part 200 Appendix II or by the FAR where federal funds are involved, and must procure for the Company the right to enforce them directly as an express third-party beneficiary or to have them assigned or novated to the Company on termination.

(d) Change of control. The Supplier must notify the Company in Writing within five (5) Business Days of any change in control of the Supplier, any sale or disposal of a material part of its business or of the business unit performing the Contract, or any change in the ownership or control of any facility at which the Goods are manufactured. Where the Company reasonably considers that the change adversely affects the Supplier’s ability to perform, presents a conflict of interest, or presents a Trade Controls, national security, foreign ownership, FCC Covered List, ICTS, CFIUS or other compliance risk, the Company may terminate the Contract immediately by Written notice without liability.

(e) Group Orders. Each Order issued by a member of the Group forms a separate Contract between that member and the Supplier on these Conditions, and no member of the Group is liable for the obligations of any other. Rights expressed to be for the benefit of the Group are enforceable by the Company on behalf of the relevant member, and by that member as an express third-party beneficiary under clause 24(b).

23. Notices

(a) Form and delivery. A notice under the Contract must be in Writing and delivered personally, sent by nationally recognized overnight courier, sent by United States certified or registered mail, postage prepaid, return receipt requested, or sent by email to the address specified in this clause.

(b) Addresses. Notices to the Company must be sent to ScaleFibre USA Inc., 30 N Gould St Ste 62154, Sheridan, WY 82801, United States of America, marked for the attention of Legal, with a copy by email to legal@scalefibre.com. Notices to the Supplier must be sent to the address or email address stated in its quotation, in its acceptance of the Order, or otherwise notified to the Company in Writing. Service of process is separately governed by clause 25(b).

(c) Deemed receipt. A notice is deemed received: (i) if delivered personally or by overnight courier, when left at the relevant address or on the courier’s record of delivery; (ii) if sent by certified or registered mail, two (2) Business Days after deposit with the United States Postal Service, or five (5) Business Days after posting if sent to or from an address outside the United States; and (iii) if sent by email, on the day of successful transmission where sent before 16:00 on a Business Day at the recipient’s location, and otherwise on the next Business Day. Transmission of an email is successful unless the sender receives an automated notification that it was not delivered.

(d) Excluded means. A notice is not validly given if sent only through an electronic portal operated by the Supplier, or by any automated system message.

(e) Operational communications. Delivery schedules, forecasts, call-offs, quality notifications and other operational communications may be given by the means the Parties adopt in practice and are not required to comply with this clause 23, but any notice of breach, rejection, revocation of acceptance, Recall, demand for adequate assurance, suspension, cancellation or termination must comply with it.

(f) Language. All notices, documentation, certificates, labeling and correspondence under the Contract must be in English, unless the Order or applicable law requires another language, in which case an English translation must also be provided. Country of origin marking must be in English as required by 19 C.F.R. § 134.11.

24. General

(a) Relationship. Nothing in the Contract creates a partnership, joint venture, agency, franchise or employment relationship between the Parties. Neither Party has authority to pledge the credit of, make any representation on behalf of, or contract on behalf of, the other. The Supplier is an independent contractor. No Supplier Personnel are employees, joint employees or co-employees of the Company by reason only of the Contract, and the Supplier is solely responsible for their wages, hours, benefits, tax withholding, unemployment and workers’ compensation insurance, immigration status and Form I-9 verification, and for classifying them correctly under the Fair Labor Standards Act, the Internal Revenue Code and the law of each State in which they work.

(b) Third party beneficiaries. The Contract confers no right on any Person other than the Parties, except that each member of the Group is an intended third-party beneficiary of every provision of the Contract expressed to be for the benefit of the Group or of a member of the Group — including clauses 4(e), 11(g), 16(e), 16(g), 16(h), 17(m), 18(k), 19(c) and 20 — and, where expressly stated, each Customer is an intended third-party beneficiary of the provision so stated — including clauses 9(f), 11(g), 16(e), 16(g), 16(h) and 20 to the extent expressed to be for a Customer’s benefit. Each such Person may enforce the relevant provision in its own name, and the Company may also enforce it on that Person’s behalf; but the Supplier is not required to pay more than once in respect of the same loss arising under the Contract, and satisfaction of a claim in respect of that loss discharges the Supplier only to the extent of the amount actually satisfied. Every other Person is an incidental beneficiary with no right of enforcement. The Parties expressly reserve the right, under Restatement (Second) of Contracts § 311, to vary, rescind or discharge the Contract without the consent of any beneficiary, whether or not the beneficiary has relied on or assented to it, and no consent of any third party is required.

(d) Waiver. No forbearance, delay or indulgence by the Company in enforcing the Contract prejudices or restricts its rights. No waiver of a breach operates as a waiver of any subsequent breach. A waiver is effective only if in Writing and signed by an Authorized Officer. The Company’s rights and remedies are cumulative. No course of performance, course of dealing or usage of trade constitutes a waiver for the purposes of UCC § 1-303, and the Company expressly reserves its rights under UCC § 1-308 in respect of any performance it accepts or payment it makes under protest.

(e) Severability. If any provision of the Contract is held illegal, invalid or unenforceable in whole or in part, that provision applies with the minimum modification necessary to make it legal, valid and enforceable, or, if that is not possible, is severed, and the remaining provisions and the remainder of that provision remain in full force and effect. The Parties request that any court so holding blue-pencil or reform the provision to the maximum extent enforceable rather than strike it.

(f) Variation. The Contract may only be varied by a written instrument referring to this clause 24(f) and signed by an Authorized Officer, or by a Change Order issued under clause 12(a). This clause is a “no oral modification” clause given effect by UCC § 2-209(2), and no waiver or attempted modification that fails to satisfy it operates as a waiver under UCC § 2-209(4) unless signed by an Authorized Officer.

(g) Order of precedence. In the event of conflict between the documents forming the Contract, the order of precedence is: (i) any special conditions expressly agreed in Writing and signed by an Authorized Officer; (ii) any master supply agreement, framework agreement or other negotiated written agreement between the Company and the Supplier that is signed by an Authorized Officer and is expressed to govern the supply of the Goods or Services; (iii) these Conditions; (iv) the Order; and (v) any other document expressly stated in the Order to form part of the Contract. This order of precedence is subject to any provision of these Conditions that expressly defers to the Order, and where a provision of these Conditions so defers the Order prevails to the extent of that deference.

(h) Entire agreement. These Conditions, together with the Order and any document stated in the Order to form part of the Contract, constitute the entire agreement between the Parties relating to its subject matter and supersede all prior agreements, statements, representations, understandings, negotiations and discussions, whether oral or written. This clause is a final expression of the Parties’ agreement and a complete and exclusive statement of its terms for the purposes of UCC § 2-202, and no evidence of any prior agreement, contemporaneous oral agreement, course of dealing, usage of trade or course of performance may be used to contradict, explain or supplement it. Each Party acknowledges that it does not rely on, and has not been induced to enter into the Contract by, any statement, representation, warranty or understanding made before the Contract except to the extent incorporated into it. Nothing in this clause limits liability for fraud or fraudulent misrepresentation, and no anti-reliance provision operates to bar a claim for fraudulent inducement.

(i) Counterparts and electronic execution. The Contract may be entered into and executed in counterparts, including by electronic signature and by exchange of email, all of which constitute one agreement. Electronic signatures and electronic records are valid and enforceable under the federal Electronic Signatures in Global and National Commerce Act (15 U.S.C. §§ 7001–7031) and the Uniform Electronic Transactions Act as enacted in Delaware (6 Del. C. §§ 12A-101 et seq.), and, for documents signed on behalf of the Company, under the corporations and electronic transactions law of the State of Wyoming as the Company’s jurisdiction of incorporation. No document under the Contract needs to be signed in wet ink, witnessed, notarized or executed as a deed. The Parties record that:

(i) a promise is binding if supported by consideration or, in Delaware, if the instrument is signed under seal. The twenty (20) year limitation period applying to an action on a sealed instrument in Delaware is a rule of common law and is not a period given by 10 Del. C. § 8106, which does not apply to a sealed instrument (Whittington v. Dragon Group L.L.C., 991 A.2d 1 (Del. 2009)). Where an Order is to be enforceable without consideration or is to carry that longer limitation period, it must be executed as a written instrument under seal, using the word “SEAL” or “L.S.” adjacent to the signature and a recital that the Parties intend to be legally bound by a sealed instrument;

(ii) documents to be recorded with the USPTO, the United States Copyright Office or a State recording office, affidavits, and any document required by a State to be notarized or witnessed, must be executed in the form that office requires, and the Supplier must arrange notarization or apostille at its own cost on request; and

(iii) neither Party may contest the validity or enforceability of the Contract or of any Change Order solely because it was signed or delivered electronically, and each waives any defense based on the best evidence rule in respect of an electronic record.

(j) Further assurance. Each Party must promptly do all things and execute all documents reasonably necessary to give full effect to the Contract.

(k) Costs. Each Party bears its own costs of negotiating and entering into the Contract, except that the Supplier bears the Company’s costs of enforcing any right or recovering any amount owing under the Contract, including reasonable attorneys’ fees, expert fees, collection costs and court costs, on a full indemnity basis. Where the law of a State that makes a one-sided fee provision reciprocal (for example Cal. Civ. Code § 1717, Fla. Stat. § 57.105(7), Or. Rev. Stat. § 20.096) is applied, this clause operates reciprocally in favor of the prevailing Party, and no other change is made to it.

(l) Non-solicitation. During the term of the Contract and for twelve (12) months after it ends, the Supplier must not solicit for employment or engagement any employee of the Company with whom it has had contact in connection with the Contract, other than through a general advertisement not targeted at that person. This clause is a non-solicitation covenant ancillary to a vertical supply relationship, is limited in scope, duration and the persons covered, and is not a no-hire or no-poach agreement between competitors. Where the law of a State that restricts employee non-solicitation covenants (including Cal. Bus. & Prof. Code § 16600) applies, this clause is unenforceable in that State and is severed under clause 24(e) without affecting any other provision.

(m) Set-off and payments free of deduction. All amounts payable by the Supplier to the Company under the Contract must be paid in full without any set-off, counterclaim, deduction or withholding, except any deduction or withholding required by law, in which case the Supplier must gross up the payment so that the Company receives the amount it would have received had no deduction or withholding been required.

(n) Antitrust savings. Nothing in the Contract requires either Party to do, or to refrain from doing, anything that would infringe the Sherman Act, the Clayton Act, the Robinson-Patman Act, the Federal Trade Commission Act or any State antitrust or unfair competition statute, and any provision that would otherwise have that effect applies only to the extent it lawfully may. Neither Party will disclose to the other any competitively sensitive information about a third party other than as necessary to perform the Contract.

(o) Incorporation and version control. Each Order incorporates these Conditions by reference, whether or not a copy of them is attached to or served with it. The version of these Conditions applying to a Contract is the version published by the Company and current at the date of the relevant Order, identified by the version number and date stated at the head of these Conditions, and the Supplier must retain a copy of that version. The Company may publish an amended version at any time, and an amended version applies only to Orders dated on or after the date of its publication. Publication of an amended version does not vary, and has no effect on, a Contract already formed, which continues to be governed by the version current at the date of its Order; a Contract may be varied only in accordance with clause 24(f). The Company will provide a copy of the version applying to any Order on the Supplier’s Written request.

25. Governing Law, Jurisdiction and Disputes

(a) Governing law. The Contract is governed by and construed in accordance with the laws of the State of Delaware, United States of America, including its enactment of the Uniform Commercial Code, and by applicable federal law, without regard to any conflict of laws rule that would apply the law of another jurisdiction. The Parties elect Delaware law under 6 Del. C. § 2708. Where a mandatory rule of another State applies notwithstanding this election (including under clause 20(e)), that rule applies to the minimum extent required and Delaware law governs the balance.

(b) Jurisdiction. The Parties irrevocably submit to the jurisdiction of the Superior Court of the State of Delaware and, for any claim within its subject matter jurisdiction, the Court of Chancery of the State of Delaware, and, where federal subject matter jurisdiction exists, the United States District Court for the District of Delaware, together with the appellate courts having jurisdiction over each of them (the Supreme Court of the State of Delaware and the United States Court of Appeals for the Third Circuit) (together, the Delaware Courts). Proceedings in the Superior Court are to be brought in its Complex Commercial Litigation Division where the matter satisfies that Division’s jurisdictional criteria (including its amount in controversy threshold), and otherwise in the Superior Court generally.

Asymmetric operation. That submission operates as follows:

(i) it is exclusive in respect of proceedings brought by the Supplier, which may bring proceedings against the Company arising out of or relating to the Contract only in the Delaware Courts; and

(ii) it is non-exclusive in respect of proceedings brought by the Company, which may bring proceedings against the Supplier in the Delaware Courts or in any other court of competent jurisdiction, and may bring concurrent proceedings in more than one jurisdiction to the extent permitted by law.

This paragraph applies in addition to, and does not limit, clause 25(c).

Each Party irrevocably waives any objection to venue and any defense of forum non conveniens or inconvenient forum in respect of proceedings brought in the Delaware Courts, and the Supplier irrevocably waives any such objection or defense in respect of proceedings brought against it by the Company in any other court of competent jurisdiction under paragraph (ii) or clause 25(c). The Supplier consents to personal jurisdiction under 10 Del. C. § 3104 and, where the Contract involves at least one hundred thousand United States dollars (USD 100,000), under 6 Del. C. § 2708(b).

Service of process on the Supplier. Where the Supplier has no place of business in the United States, the Supplier must, before the first delivery under any Order, appoint and thereafter maintain — throughout the term of the Contract, the Warranty Period, and for six (6) years after the last delivery — an agent for service of process with an address in the State of Delaware, and must notify the Company in Writing of that agent’s name and address and of any change to them. The Supplier irrevocably consents to service of process on that agent, and agrees that service on that agent is effective service on the Supplier. If the Supplier fails to appoint or maintain that agent, or if the appointed agent ceases to act and no replacement is notified within ten (10) Business Days, the Company may appoint a process agent for the Supplier at the Supplier’s cost and notify the Supplier of the appointment, and service on that agent is effective service. In addition, the Supplier agrees that service by internationally recognized courier to its last notified business address, with written evidence of dispatch and delivery, is an effective means of service that the Parties have agreed for the purposes of Federal Rule of Civil Procedure 4(f)(3), and consents to the Company applying for an order authorizing it. Nothing in this clause limits service by any other means permitted by Federal Rule of Civil Procedure 4, including service under the Hague Service Convention where applicable.

(c) Protective and recovery proceedings. Despite clause 25(b), the Company may bring proceedings in any court of competent jurisdiction where the Supplier is located, where any of the Supplier’s assets are located, or where the Goods are located, for the recovery of any amount owing, for the recovery or preservation of Goods or Company property (including replevin, sequestration, attachment, garnishment or claim and delivery), for a temporary restraining order, preliminary injunction or other urgent or interim relief, or for the protection of its Confidential Information or Intellectual Property Rights, including under 18 U.S.C. § 1836(b)(2) (civil seizure).

(d) Waiver of jury trial. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THE CONTRACT, THE GOODS, THE SERVICES OR THE TRANSACTIONS CONTEMPLATED BY THEM, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. EACH PARTY ACKNOWLEDGES THAT THIS WAIVER IS KNOWING, VOLUNTARY AND INFORMED, THAT IT HAS HAD THE OPPORTUNITY TO CONSULT COUNSEL, AND THAT IT IS A MATERIAL INDUCEMENT TO THE OTHER PARTY ENTERING INTO THE CONTRACT. This clause is set out in capitals so as to be conspicuous. If a court applies the law of a State in which a pre-dispute jury waiver is unenforceable and refuses to give effect to this clause, the Parties instead agree to a trial by the court without a jury by any procedural means that State permits, including judicial reference under Cal. Civ. Proc. Code §§ 638–645.1, and failing that this clause 25(d) is severed under clause 24(e).

(e) Dispute escalation. Before commencing proceedings, a Party must give Written notice of the dispute, and the Parties must procure that a senior representative of each meets, in person or by video conference, within fifteen (15) Business Days of that notice to attempt to resolve it in good faith. If no meeting takes place within that period, or if the dispute is not resolved within thirty (30) days after the meeting, either Party may commence proceedings. This clause does not prevent either Party from seeking a temporary restraining order, preliminary injunction or other urgent or interim relief, does not apply to proceedings under clause 25(c), and does not extend or toll any limitation period except by written agreement. Compliance with this clause is not a condition precedent to the jurisdiction of any court or, where arbitration is elected under clause 25(g), of any arbitral tribunal.

(f) Continued performance. The Supplier must continue to perform the Contract in accordance with its terms while any dispute is being resolved, and may not suspend or delay performance on account of a dispute.

(g) Arbitration. Unless the Order or any special conditions expressly provide for arbitration, disputes are resolved by court litigation in Delaware under clause 25(b). Where the Order or any special conditions provide for arbitration, the dispute is to be finally resolved by arbitration administered by the International Center for Dispute Resolution (ICDR), the international division of the American Arbitration Association, under the ICDR International Arbitration Rules then in force, with the seat and place of arbitration in New York, New York, before one (1) arbitrator where the amount in dispute is five million United States dollars (USD 5,000,000) or less and three (3) arbitrators where it exceeds that amount, in the English language, with the award final and binding and judgment on it enterable in any court of competent jurisdiction. The Federal Arbitration Act (9 U.S.C. §§ 1–16, and chapters 2 and 3 giving effect to the New York and Panama Conventions) governs the arbitration agreement and its enforcement. Where arbitration is elected, clause 25(b) applies only to applications in support of, or to enforce or vacate the award of, that arbitration, and the Parties may seek interim measures from a court under clause 25(c) or from an emergency arbitrator without waiving the arbitration agreement. Class, collective and consolidated arbitration is not permitted except with the Company’s Written consent.

(h) Limitation of actions. No period within which the Company may commence an action arising out of or relating to the Contract is reduced below the period provided by law, and any attempt by the Supplier to reduce that period, whether by its own terms or otherwise, is of no effect. The applicable periods are:

(i) for a claim for breach of a contract for the sale of goods, four (4) years from the date the cause of action accrues under UCC § 2-725. The Parties expressly do not shorten that period. Where a warranty explicitly extends to future performance, as clause 9(b) provides, the cause of action accrues when the breach is or should have been discovered;

(ii) for a claim on any other contractual promise, including in respect of Services, three (3) years under 10 Del. C. § 8106(a), save that where the Contract involves at least one hundred thousand United States dollars (USD 100,000) the Parties agree, and expressly elect, under 10 Del. C. § 8106(c), that the limitation period is twenty (20) years from the date the cause of action accrues, being the maximum that section permits;

(iii) for a claim under an indemnity, the applicable period runs from the date the Company discharges the liability to which the indemnity relates, and not from the date of the underlying breach; and

(iv) the borrowing statute at 10 Del. C. § 8121 applies to a cause of action arising outside Delaware, and nothing in this clause revives a claim already time-barred.

The Supplier waives, to the fullest extent permitted by law, any defense of laches, and agrees that any applicable period is tolled during any period of escalation under clause 25(e) in which the Parties have agreed in Writing to toll it.

(i) International conventions excluded. The United Nations Convention on Contracts for the International Sale of Goods (CISG) and the United Nations Convention on the Limitation Period in the International Sale of Goods (as amended by the 1980 Protocol) do not apply to the Contract, and are expressly excluded under Article 6 of the CISG and Article 3(2) of the Limitation Convention. The United States made the Article 95 reservation to Article 1(1)(b) of the CISG.

(j) Extraterritorial trade laws. Export control, sanctions and trade compliance laws of jurisdictions other than the State of Delaware and the United States may apply to the Contract, as set out in clause 17, and the choice of Delaware law does not limit their application.

If you have questions, contact us:
Legal Inquiries Email: legal@scalefibre.com

ScaleFibre USA Inc. · Wyoming file number: 2026-001908877 · Notices address: 30 N Gould St Ste 62154, Sheridan, WY 82801 · Telephone: +1 (469) 6634785 · Legal notices email: legal@scalefibre.com

Standard Purchasing Terms (United States) – ScaleFibre

1. Definitions and Interpretation

1.1 Definitions

1.2 Interpretation

2. Order Formation and Acceptance

3. Price, Taxes and Duties

4. Payment and Set-Off

5. Specification, Tolerances and Quality

6. Packaging, Labeling and Documentation

7. Delivery, Title and Risk

8. Inspection, Acceptance and Rejection

9. Supplier Warranties

10. Remedies, Rework and Repair

11. Product Safety, Recall and Traceability

12. Change Orders, Cancellation and Suspension

13. Supplier Default and Termination

14. Force Majeure

15. Confidentiality

16. Intellectual Property

17. Compliance

18. Data Protection

19. Insurance

20. Indemnities

21. Limitation of Liability

22. Assignment and Subcontracting

23. Notices

24. General

25. Governing Law, Jurisdiction and Disputes

Information

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Standard Purchasing Terms (United States) – ScaleFibre

1. Definitions and Interpretation

1.1 Definitions

1.2 Interpretation

2. Order Formation and Acceptance

3. Price, Taxes and Duties

4. Payment and Set-Off

5. Specification, Tolerances and Quality

6. Packaging, Labeling and Documentation

7. Delivery, Title and Risk

8. Inspection, Acceptance and Rejection

9. Supplier Warranties

10. Remedies, Rework and Repair

11. Product Safety, Recall and Traceability

12. Change Orders, Cancellation and Suspension

13. Supplier Default and Termination

14. Force Majeure

15. Confidentiality

16. Intellectual Property

17. Compliance

18. Data Protection

19. Insurance

20. Indemnities

21. Limitation of Liability

22. Assignment and Subcontracting

23. Notices

24. General

25. Governing Law, Jurisdiction and Disputes

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