1. Acceptance and Modification

This document, together with any quotation, constitutes an offer or counteroffer (an “Offer”) by InductEV, Inc., or its subsidiary or affiliate (“Seller”) to sell certain products and/or services (the “Products”) to purchaser (“Purchaser”), subject to and in accordance with these terms and conditions and attachments to this document (the “Terms and Conditions”). This document is not an acceptance of any offer or counteroffer made or purchase order submitted by Purchaser. This Offer and any contract arising out of this Offer (collectively, the “Contract”) are each expressly conditioned upon Purchaser’s assent to all of the Terms and Conditions. Seller’s acceptance of any order is subject to Purchaser’s assent to all of the Terms and Conditions set forth herein. Purchaser acknowledges agreement with these Terms and Conditions by placement of an order to purchase Products from the Seller or its acceptance of all or any part of the Products. Seller objects to any additional or different terms or conditions contained in any request for quotation, request for proposal, purchase order or other document or communication previously or hereafter provided by Purchaser to Seller. If a purchase order or other correspondence contains terms or conditions contrary to the terms and conditions contained in Seller’s acknowledgement, Seller’s acceptance of any order shall not be construed as assent to any additional terms and conditions, nor will that constitute a waiver by Seller of any of the Terms and Conditions nor an acceptance of any such additional provisions. No such additional or different terms or conditions will be of any force or effect, unless specifically agreed to by an executive officer of Seller in writing. The Contract constitutes the entire understanding between the parties with respect to the subject matter of the contract and supersedes any prior discussions, negotiations, agreements and understandings. Modifications to the Contract can be made only by a writing signed by an authorized representative of each party. a

2. Termination

Unless otherwise set forth on the face of Seller’s quotation, the term of the parties’ Contract shall be for the life of the vehicle program and the volume shall be Buyer’s requirements, as long as such requirements are within Seller’s capacity reserved for the program. Notwithstanding, Seller may cancel the Contract upon ninety (90) days written notice. In the event of such a termination, Purchaser shall pay to Seller: (i) the agreed unit price for completed Products (or components or units of components thereof) under the Contract or any related order; including finished Products and raw material based on any forecasted schedule, release or order issued by Purchaser prior to notice of the termination; (ii) all other costs incurred by Seller prior to termination directly connected with work under the Contract or any related order; (iii) all other costs incurred by Seller associated with the termination of the Contract or any related order, including, without limitation, cancellation charges under subcontracts, charges for packing, removal to storage and/or restocking. Until Seller has received all of the foregoing termination and cancellation charges, all cancelled Products shall remain the sole and exclusive property of Seller, regardless of the state of completion of such Products.

3. Delivery and Terms of Sale

Unless otherwise agreed, the following terms shall apply: Seller will utilize Seller’s standard packing and labeling and ship in full pallet quantities. Sale and Trade terms are from Seller’s specified FOB point or warehouse, and Duty, Taxes and Customs Clearance fees are Purchaser’s responsibility. Purchaser orders and/or delivery schedules need to be issued at a lead time determined by Seller and in advance of the desired delivery date, and are non-cancellable, irrevocable purchase obligations. Orders are subject to confirmation of a lead-time different than what is determined by Seller. Air freight or alternative inland handling for rush shipments may be available upon Purchaser request and at Purchaser’s sole expense. Purchaser shall be responsible for all transportation arrangements and costs from Seller’s specified FOB point or warehouse to Purchaser’s destination. Purchaser is obligated to fulfill pick-up, delivery and purchase of Products no later than thirty (30) days from the delivery date initially requested in Purchaser’s order schedule for the Products.

4. Risk of Loss

Risk of loss or damage and any further cost and responsibility for claims, delivery, and, if applicable, placement and storage shall pass from Seller to Purchaser, and delivery shall be deemed to be complete, upon delivery by Seller to Purchaser’s private or common carrier at Seller’s specified FOB point or warehouse. Title to Products shall pass to Purchaser upon pick-up of Products from Seller’s FOB point or warehouse, subject to Seller’s rights as an unpaid vendor.

5. Security Agreement and Insurance

To secure payment of the price payable under the Contract and performance of all of Purchaser’s obligations under the Contract, Purchaser hereby: (i) grants to Seller a purchase money security interest in all Products; and (ii) authorizes Purchaser to file such financing statements and other documents and agrees to execute such other documents and to do such other acts, as Seller may reasonably deem necessary or advisable to protect its rights in such Products. In the event Purchaser breaches the terms or conditions of the Contract, Seller shall be entitled to, among other damages, an award of costs and attorney fees. Until Seller has received full payment of the price payable under the Contract, Purchaser shall (i) maintain insurance covering all Products in such amounts and against such risks as is customary by companies engaged in the same or similar business and similarly located, naming Seller as insured or coinsured, and shall, upon Seller’s request, furnish evidence of such insurance satisfactory to Seller, and (ii) upon request by Seller, do all things necessary or desirable to adequately insure the Products against Loss or damage.

6. Payment

a. Unless otherwise agreed, Purchaser shall make payment in accordance with the terms set forth in Seller’s quotation or, if not set forth in the quotation, thirty (30) days from Purchaser’s receipt of the Products. Any variance in the payment terms must be approved in writing by Seller. Seller reserves the right to require payment in advance or payment on delivery. If Purchaser fails to pay any invoice when due or if, in the judgment of Seller, the financial condition of Purchaser at any time prior to shipment does not justify the extension of credit, then Seller may stop any pending or future shipments until past due amounts are paid in full and require payment in advance or otherwise modify the payment terms upon notice to Purchaser. All delays occasioned by acts of Purchaser shall be at the expense of Purchaser. Seller reserves the right to assess reasonable charges for its expenses resulting from such delays. All shipments shall be separately invoiced and paid for without regard to subsequent deliveries. Monthly interest at the highest rate allowed by law, shall be charged to all overdue accounts. Purchaser will reimburse Seller for all costs and expenses (including attorneys’ fees and the costs of bringing any action) incurred in collecting any amounts past due.

b. If a dispute arises between the parties concerning Purchaser’s alleged right to damages or other payments from Seller or its affiliates, the parties shall negotiate in good faith to resolve such dispute. Purchaser acknowledges and agrees that payments owed to Seller for Products supplied under this Contract are not subject to any setoff or recoupment by Purchaser unless and until Seller agrees in writing to such setoff or recoupment, and that Purchaser shall not exercise its right to setoff or recoupment in connection with any disputed, contingent, or unliquidated claim.

7. Prices

Unless otherwise quoted, prices shall be those in effect at the time of shipment. Unless other terms are specified in the attachments to this document, all prices are quoted and payable in U.S. dollars. The prices quoted do not include any taxes imposed on the sale of the Products. Any manufacturer’s tax, occupation tax, use tax, sales tax, excise tax, GST, value added tax, duty, custom, inspection or testing fee, or any other tax, fee, interest or charge of any nature whatsoever imposed by any governmental authority (whether domestic or foreign, or federal, state or local) on or measured by the transactions between Seller and Purchaser (other than income taxes imposed on Seller) shall be added to the price of Products, invoiced separately, and paid by Purchaser in addition to the prices quoted or invoiced. Purchaser agrees to reimburse Seller for any such tax or provide Seller with acceptable tax exemption certificate.

8. Limited Warranty

a. Unless otherwise agreed to in a writing signed by Seller, Seller provides the following Limited Warranty applicable for a period of one year from the date of delivery of the Products: The Products shall meet the specifications as set forth in Seller’s quotation, or the other applicable Seller documents, for the Products supplied. Purchaser agrees to inspect the Products upon receipt for completeness and external damage, and forthwith report any deficiency or damage. Seller is not responsible for insubstantial or cosmetic external defects that do not affect the function of the Products. Any claim for defect during the warranty period must be made within thirty (30) days of discovery of the defect.

b. EXCEPT AS PROVIDED IN THIS PARAGRAPH 8, SELLER MAKES NO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER EXPRESS OR IMPLIED WARRANTY. SELLER EXPRESSLY DISCLAIMS AND EXCLUDES ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY ARISING FROM USAGE OF TRADE OR COURSE OF DEALING.

c. Purchaser assumes all risk and liability resulting from use of the Products, whether used singly or in combinations with other products.

d. The warranty set forth in this Paragraph 8 shall not apply in the event of defects or damages caused by: (i) failure of Purchaser or any subsequent purchaser or user to comply with any operational or maintenance guidelines, parameters or requirements; (ii) physical abuse, including but not limited to, dropping, contaminating with foreign substances, applying excessive loads or forces or improper voltages of or to the Products or any component or acts of vandalism, by any persons other than Seller, its employees, agents, or subcontractors; (iii) alterations, modifications, additions, or repairs made by anyone other than Seller, its employees, agents or subcontractors; or (iv) accidents or damage resulting from fire, water, wind, hail, lightning, electrical surge or failure, earthquake, theft or similar causes not caused or contributed to by the sole negligence of Seller or its employees, agents, or subcontractors.

9. Force Majeure

Seller shall not be liable for and shall have no obligation to incur costs for expedited freight as a result of, delays or failures in performance of an order or default in delivery arising out of or resulting from causes beyond its reasonable control. The parties agree that such causes include, but are not restricted to, acts of God, acts of Purchaser, acts of the Government, war or conflict, fire, flood, weather, epidemics, quarantine restrictions, strikes or other labor issues, freight embargoes or transportation delays, or the nonperformance or delay of Seller’s suppliers to supply parts, components, or services due to any of such causes or any other reason.

10. Data Collection and Use

Some of Seller’s Products collect, store, and transmit information, statistics, and other data (“Data”) relating to Products and users of Products. Types and categories of such Data include charging transactions, duration of charge events, location of charge events, total energy used, cost of energy, charger performance, system efficiency, vehicle performance, and all sensor data. . Buyer acknowledges and agrees it is responsible for providing all notices and obtaining consents required to enable Seller’s Products to collect, store and transmit the Data. Data may be transmitted by and from the Products to Seller through a cellular or other wireless connection or network. Seller shall have the right to transmit, receive, store, process, analyze, and otherwise use the Data for its business purposes. In this regard, Seller may receive and use aggregated and/or anonymized Data from Products for Seller’s business and commercial purposes, provided that Seller shall not identify Buyer or any end-user as the source of such aggregated and/or de-identified Data (“Aggregated Data”). Upon Seller’s creation and processing of Aggregated Data, Seller will own all right, title, and interest in and to the Aggregated Data, and may copy, commingle, and use such data, in Seller’s sole discretion, for any lawful purpose. Seller may also use Data to provide services to Buyer, as well as for purposes compatible with providing such services including, but not limited to, error analysis and correction; artificial intelligence training, machine learning, and algorithm development; and Product adjustment, configuration, improvement, research, and development. Seller may also: (a) compile statistical and other information related to the performance, operation, and use of the Products, and (b) use and share data from the Products, including Aggregated Data, to create statistical analysis and for research and development purposes (“Data Analytics Products”). Seller shall own and retains all intellectual property rights in the Data Analytics Products, and Seller shall have the right to market, license, sell, disclose or otherwise distribute the Data Analytics Products.

11. Patents, Trademarks and Copyrights

a. Seller shall own and continue to own any and all intellectual property rights (including any rights in patents, trademarks, copyrights, and similar intellectual property rights, both in the United States and in jurisdictions foreign thereto) related to or embodied in the Products, including intellectual property rights arising from the development of the Products, and no rights in such intellectual property are transferred or licensed to Purchaser other than the limited right to incorporate Products purchased from Seller in products to be manufactured or sold by Purchaser.

b. Purchaser shall immediately notify Seller of any action instituted by an unrelated third party against Purchaser related to infringement of any patent, trademark or copyright by Products manufactured by Seller pursuant to the Contract. Seller, at its option, may elect to assume defense of any such action and shall have the right to settle any such claims without notice to Purchaser. If Seller elects to assume defense of such claims: (i) immediately upon receipt, Purchaser shall provide Seller with all processes and papers served upon Purchaser; (ii) permit Seller through its counsel, either in the name of Purchaser or in the name of Seller, to defend such suits; and (iii) give all needed information, assistance and authority to enable Seller to do so.

c. If Products sold to Purchaser under the Contract are held in and of themselves, by final court decision from which no appeal can be taken, to infringe any patent and their use is enjoined, or in the event of a settlement or compromise approved in writing by Seller that precludes future use of Products sold to Purchaser under the Contract, then Seller: (i) shall pay any final and unappealable award of damages in such suit to the extent such damages are directly attributable to such infringement; and (ii) shall, at its own expense and at its sole option, (A) procure for Purchaser the right to continue using such Products to the extent contemplated in the Contract, (B) modify such Products to render them noninfringing, (C) replace such Products with noninfringing Products, or (D) refund the price paid by Purchaser for such Products after Purchaser’s return of such Products to Seller. This Paragraph 10 states Seller’s sole obligation and Purchaser’s exclusive remedy with respect to patent, trademark or copyright infringement, provided that Seller’s liability for patent, trademark and copyright infringement shall not exceed the price paid by Purchaser under the Contract.

d. Purchaser expressly warrants that all designs, drawings, and specifications supplied by Purchaser for the Products will not and do not infringe any patent, trademark, copyright or other intellectual property of any third party. Purchaser: (i) agrees to defend, hold harmless and indemnify Seller and its affiliates against all claims, demands, losses, suits, damages, liability and expenses (including actual fees for attorneys, experts and consultants, settlement costs and judgments) arising out of any suit, claim or action for actual or alleged direct or contributory infringement of, or inducement to infringe, any patent, trademark, copyright or other proprietary right by reason of the manufacture, use or sale of the Products, or for actual or alleged misuse or misappropriation of a trade secret resulting directly or indirectly from Purchaser’s actions; and (ii) waives any claim against Seller and its affiliates, including any hold-harmless or similar claim, whether known or unknown, contingent or latent, in any way related to a claim asserted against Seller or Purchaser for infringement of any patent, trademark, copyright or other proprietary right, including claims arising out of compliance with designs, drawings, and specifications furnished by Purchaser.

12. Limitation of Remedies

a. Seller shall be given reasonable and prompt opportunity to examine any claim of defect by the Purchaser, including an opportunity to conduct Seller’s own independent root cause or failure analysis.

b. Purchaser agrees that its sole and exclusive remedy against the Seller shall be limited to either repair or replacement of the Products, or a refund of the purchase price of the Products, at Seller’s option. This exclusive remedy shall not be deemed to have failed of its essential purpose so long as Seller is willing to repair or replace the defective Products or tender a refund.

13. Limitation of Damages

a. THE MAXIMUM LIABILITY, IF ANY, OF SELLER FOR ALL DAMAGES, INCLUDING WITHOUT LIMITATION CONTRACT DAMAGES AND DAMAGES FOR INJURIES TO PERSONS OR PROPERTY, WHETHER ARISING FROM SELLER'S BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, IS LIMITED TO AN AMOUNT NOT TO EXCEED THE PURCHASE PRICE OF THE PRODUCTS AT ISSUE IN THE CLAIM.

b. IN NO EVENT SHALL SELLER BE LIABLE TO PURCHASER FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION LOST REVENUES AND PROFITS AND/OR MONETARY REQUESTS RELATING TO RECALL EXPENSES AND REPAIRS TO PROPERTY INCLUDING THIRD PARTY CLAIMS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

c. Notwithstanding anything to the contrary in the Contract, Seller shall not be responsible for, and shall incur no liability with respect to, any information supplied by Purchaser or any of its subcontractors to Seller.

d. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE LIMITATION OF DAMAGES PROVISIONS SET FORTH IN THIS PARAGRAPH 12 SURVIVE BETWEEN PURCHASER AND SELLER EVEN IF THE EXCLUSIVE REMEDY SET FORTH ABOVE IS DEEMED TO FAIL OF ITS ESSENTIAL PURPOSE OR OTHERWISE BE DEEMED UNENFORCEABLE.

14. Confidential Information

a. All information and materials received by Purchaser from Seller or Seller’s agents pursuant to this Contract (including any idea, concept, design, prototype, product configuration, invention, method, procedure, system, plan, model, program, software or code, data, specification, drawings, diagram, flow chart, documentation, know-how, work of authorship, and any other subject matter, material, or information that is considered by Seller to be proprietary or confidential and/or that otherwise qualifies for protection under any law providing or creating intellectual property rights, collectively referred to herein as “Confidential Information”) shall remain the property of Seller and shall be treated by Purchaser as confidential unless Seller has indicated a contrary intent in writing. Purchaser agrees to adopt measures to protect the secrecy and confidentiality of Confidential Information that are reasonable under the circumstances, and will promptly notify Seller of any loss, misuse, or unauthorized disclosure of Confidential Information. Purchaser will not remove any confidentiality, proprietary, or similar markings from Confidential Information. Immediately upon termination of this Agreement, all such Confidential Information, together with any and all copies thereof, shall be returned to Seller. Any Confidential Information made, conceived, developed or acquired by Seller in connection with the Contract or any related order shall vest in and inure to Seller’s full benefit, notwithstanding any charges therefor that may have been or may be imposed by Seller, and shall not be disclosed to third parties without Seller’s prior written consent. This obligation shall continue for so long as any Purchase Order for Products related to or using such Confidential Information is in effect and for a period of two years thereafter, provided, however, that the obligations of confidentiality with respect to Confidential Information designated by Seller to constitute a trade secret shall continue for as long as such information is entitled to protection as a trade secret. The obligations of confidentiality herein will not apply to information that is or becomes publicly known through no fault of Purchaser.
b. Any property of Purchaser placed in Seller’s custody for performance of the Contract is not covered by insurance, and no risk is assumed by Seller in the event of loss or damage to such property by fire, water, burglary, theft, civil disorder or any event beyond Seller’s control.

15. Changes in the Products

Purchaser may request in writing changes in the specifications and shipping instructions of Products. As promptly as practicable after receipt of such request, Seller shall advise Purchaser whether or not such changes are feasible, timing for implementation if feasible, and what amendments to the Contract, if any, may be necessitated by such changes, including, without limitation, amendment of price, specifications and shipment schedule. If such proposed amendments to the Contract are accepted in writing by Purchaser, Seller shall make the requested changes with respect to such Products as may be affected thereby. Seller may at any time make such changes in the Products as shall constitute an improvement of the product or production efficiency in the judgment of Seller. Seller may furnish suitable substitutes for materials unobtainable because of priorities or regulations established by governmental authority or nonavailability of materials from suppliers.

16. Export Packaging and Documents

Prices include Seller’s standard commercial export packaging, which will vary depending on whether shipment is made by air or ship. Purchaser shall bear any additional expenses required to satisfy Purchaser’s specifications. Packages will be marked in accordance with Purchaser’s instructions, and Seller shall furnish complete packing lists and such other information that Purchaser will have advised Seller may be necessary to enable Purchaser’s agent to prepare documents required for export shipment. For customs and duty purposes, Purchaser shall supply Seller with all necessary information and assistance that is required for proper classification of the Products and each shipment to secure the most expeditious clearance of each shipment. No shipping devices may be returned to Seller unless such return is accepted in advance by Seller in writing and unless all return freight is prepaid by Purchaser.

17. Indemnification

a. Purchaser shall indemnify and hold harmless Seller and its affiliated companies, their directors, officers, employees, invitees, agents and customers (“Indemnitees”) from and against all liability, demands, claims, losses, costs, actions, judgments, fines, penalties, damages and expenses, including reasonable attorney’s fees (collectively, “Liabilities”) incurred by Indemnitees by reason of or on account of: (i) any breach of the Contract; (ii) warranty claims, product recall claims, product liability claims, injuries to persons, including death, or damage to property arising from Purchaser’s use or design of the Products. Provided however, that Purchaser’s obligation to indemnify Seller shall not apply to any liabilities solely arising from Seller’s negligence. Purchaser waives the application of the doctrine of comparative negligence and other doctrines that may otherwise allocate the liability covered by Purchaser’s indemnity.

b. Within a reasonable time of becoming aware of any actual or potential Liabilities, Seller shall notify Purchaser. Purchaser, at Seller’s option and at Purchaser’s expense, will undertake defense of such actual or potential Liabilities through counsel approved by Seller. Provided, however, that Purchaser shall first obtain authorization from Seller before settlement is made of the actual or potential Liabilities if the terms of such settlement could materially adversely affect Seller, including any terms which admits the existence of a defect in Products or a failure of Seller to fully and faithfully perform its obligations. In the alternative, Seller may elect to undertake defense of such Liabilities to the extent it is asserted against Seller, and Purchaser shall reimburse Seller on monthly basis for all expenses, attorney fees, and other costs incurred by Seller.

18. Relationship Of The Parties

The Parties to this Contract are independent business entities. Nothing in this Contract shall be construed to create a partnership, joint venture, or any other relationship than that of buyer and seller. Nothing in this Contract shall be construed to create a distribution or franchise relationship. Seller shall have no obligations to Purchaser other than as specified in this Contract. Seller retains sole discretion to accept or reject any future orders from Purchaser.

19. Claims

Any action by Buyer against Seller under this Contract must be commenced within one year after the breach or other event giving rise to Buyer’s claim occurs, regardless of Buyer’s lack of knowledge of the breach or other event giving rise to such claim. No action for any such claim may be brought thereafter.

20. Miscellaneous

a. Whenever possible, each provision of this Contract shall be interpreted in such a way as to be effective and valid under applicable law. Any provision hereof that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction, and the parties shall substitute therefor an enforceable provision that achieves the same business purpose as the provision that is prohibited or unenforceable.

b. This Contract shall be governed by and construed according to the internal laws of the State of Pennsylvania (without reference to principles of conflicts of laws). The rights and obligations of the parties hereunder shall not be governed by the 1980 U.N. Convention on Contracts for the International Sale of Goods.

c. Seller and Purchaser specifically agree that any action brought by Seller or Purchaser to enforce any of the provisions of this Offer or the Contract shall be brought, heard and determined exclusively in either the state court in which King of Prussia, Pennsylvania is located or, if subject matter jurisdiction exists, the U.S. District Court for the Eastern District of Pennsylvania. The parties stipulate that the referenced venues are convenient. Seller and Purchaser acknowledge that all directions issued by the forum court, including, without limitation, all injunctions and other decrees, shall be binding and enforceable in all jurisdictions and countries.

d. Seller’s failure to exercise a right or remedy or Seller’s acceptance of a partial or delinquent payment shall not be deemed to be a waiver of any of Seller’s rights or Purchaser’s obligations under this Contract, and shall not constitute a waiver of Seller’s right to declare an immediate or a subsequent default.

e. No assignment of this contract or of any right or obligation under this contract shall be made by Purchaser without the prior written consent of Seller. In the event of a proper assignment, the contract shall be binding upon and inure to the benefit of the Purchaser’s successors and assigns.

f. In the event of Seller’s enforcement of any term or condition in the Contract, Purchaser shall be liable to Seller for all costs, including attorneys’ fees, incurred by Seller in enforcing the Contract and in collecting any sums owed by Purchaser to Seller.

g. In its relationship with Seller, Purchaser is an independent contractor. Nothing in this Contract shall be construed such that Purchaser shall be considered an employee, agent or partner of Seller. This Contract shall not confer any rights or remedies upon any third party, other than the parties to this Contract and their respective successors and permitted assigns.

These Purchase Terms and Conditions apply to all purchase orders or any other document incorporating  these Purchase Terms and Conditions issued by InductEV, Inc., or any of its subsidiaries or affiliates (“InductEV”). 

1. OFFER AND ACCEPTANCE AND TERMS OF ORDER 

A. Each purchase order, together with these Terms and Conditions (“Terms”), any delivery  schedules or releases issued by InductEV, and any documents specifically referenced  therein, (collectively, “Order”) is an offer to the Supplier identified on the Order for the  purchase of goods and/or services (“Supplier”), and includes and is governed by the  express terms contained in the Order, these purchase terms and conditions, and the terms  contained in any addendum or supplement to the Order, any supplier manual provided by  InductEV to Supplier, and other document incorporated by reference in the Order or in  these Terms. Any expression of acceptance of the Order by Supplier, including Supplier’s  commencement of (i) work on the goods subject to the Order (“Goods”) or shipment of  the Goods, whichever occurs first, or (ii) performance of all or any portion of the services  subject to the Order (“Services”), shall constitute an acceptance of InductEV’s offer. Any  acceptance of the Order is strictly limited to and conditional upon Supplier’s acceptance of  the Terms. Any proposal for additional or different terms or any attempt by Supplier to  vary any of the Terms, whether in Supplier’s quotation form, acknowledgement form,  invoice, correspondence or otherwise, shall be deemed material and is hereby objected to  and rejected by InductEV, but any such proposal or attempted variance shall not operate as  a rejection of the Order if Supplier accepts InductEV’s offer by commencement of work,  shipment of the Goods or performance of the Services, or by other means acceptable to  InductEV in which case the Order shall be deemed accepted by Supplier without any  additional or different terms or variations whatsoever.  

B. The Order does not constitute an acceptance of any prior offer or proposal by Supplier, and  any reference in the Order to any such prior offer or proposal is solely to incorporate the  description or specifications of the Goods and the Services in such offer or proposal, but  only to the extent that such description or specifications are not directly in conflict with the  description and specifications in the Order. If the Order is found to be an acceptance of any  prior offer or proposal by Supplier, such acceptance shall be limited to the Terms. Any  additional or different terms in such prior offer or proposal shall be deemed material and  are hereby objected to and rejected by InductEV. InductEV may cancel all or any part of  the Order at any time prior to InductEV’s actual knowledge of acceptance by Supplier. 

2. ENTIRE AGREEMENT 

A. The Order, together with these Terms and the attachments, manuals, guidelines,  requirements, specifications, exhibits and supplements specifically referenced therein,  constitutes the entire agreement between InductEV and Supplier and, except as otherwise  expressly stated in the Order, supersedes all prior agreements, orders, quotations, proposals  and other communications relating to the subject matter hereof and there are no other understandings or agreements, verbal or otherwise, in relation hereto that exist between  InductEV and Supplier.  

B. InductEV may modify purchase order terms and conditions from time to time by posting  revised purchase order terms and conditions to InductEV’s internet website (or such other  website as may be directed through links available on such website) as specified on the  face of this Order (“InductEV’s Website”) at www.inductev.com, prior to the date when  any modified terms and conditions become effective. Such revised purchase order terms  and conditions shall apply to all purchase order revisions/amendments and new Orders  issued on or after the effective date thereof. Supplier shall be responsible to review  InductEV’s Website periodically. 

C. All supplier manuals, guidelines, procedures and requirements that are provided by  InductEV or otherwise available on the InductEV Web Site at www.inductev.com (together, the “Supplier Manuals”), as amended from time to time, are incorporated by  reference. In the event of a conflict between any Supplier Manuals and these Terms, these  Terms shall govern. InductEV may modify the Supplier Manuals or add additional  Supplier Manuals by posting notice of such modified or new Supplier Manuals through  links provided on the InductEV web site at least ten (10) days prior to any modified or new  Supplier Manuals becoming effective. Supplier periodically shall review the InductEV web site and the Supplier Manuals. Supplier’s continued performance under the Order  without providing written notice to InductEV detailing Supplier’s objection to any  modified or new Supplier Manual prior to the effective date of such modified or new  Supplier Manual will constitute Supplier’s acceptance of such modified or new Supplier  Manual. 

3. DURATION AND QUANTITY 

A. Subject to InductEV’s termination rights, including, without limitation, such rights set out  in Articles 21, 22 and 23 (“InductEV’s Termination Rights”), the Order is binding on  InductEV and Supplier for the length of the production life of the product for which  InductEV intends to incorporate the Goods or Services. Supplier acknowledges and  assumes the risk of the product production life being cancelled or extended.  Notwithstanding the foregoing, if an expiration date or time period is specified in the Order,  the Order is binding until such expiration date or end of such time period, subject to InductEV’s Termination Rights. 

B. Unless specifically waived in writing by an authorized representative of InductEV,  Supplier’s obligations with respect to service and replacement parts will survive the  termination or expiration of the Order. 

C. If the Order does not specify the quantities, or specifies the quantities as “blanket order”,  “as released”, “as scheduled”, “as directed”, “or in another similar way, then, Supplier shall  supply InductEV’s requirements for Goods in such quantities as identified by InductEV as  firm material authorization releases, firm delivery schedules, or similar firm releases  (“Firm Release”) that are transmitted to the Supplier during the term of the Order, and  Supplier shall supply all such Goods and Services on such dates and times, at the price and  on the other terms specified in the Order. A new Firm Release shall always replace the  prior one. InductEV may require Supplier to participate in an electronic data interchange  or similar program, at Supplier's expense, for notification of Releases and other information  relating to the Order. Unless the Order specifies a fixed quantity, this is a requirements contract and InductEV will purchase at least a portion of its requirements, and possibly all  of its requirements, from Supplier pursuant to the Firm Releases. 

4. DELIVERY AND PRODUCTION VOLUMES 

A. Time is of the essence of the Order and within the whole supply chain. Supplier shall  deliver the Goods in the quantities and on the delivery dates and times specified in the  Order or Firm Releases (as defined in Paragraph 4.B below). Supplier shall immediately  notify InductEV in writing if Supplier is unable to deliver the Goods in the quantities and  on the delivery dates and times specified in the Order or Firm Release. Goods delivered in  excess of the quantities or in advance of delivery dates or times specified in the Order or  Firm Release shall be at Supplier’s risk and may be returned to Supplier by InductEV, and  all transportation charges both to and from the original destination shall be paid by  Supplier. InductEV shall not be required to make payment for any Goods delivered to  InductEV that are in excess of the quantities specified in the Order or Firm Releases.  InductEV may on notice to Supplier change the rate of scheduled shipments or direct  temporary suspension of scheduled shipments, neither of which shall entitle Supplier to a  modification of the price of the Goods or the Services covered by the Order. 

B. Unless otherwise expressly stated in the Order, InductEV shall not be required to purchase  the Goods or the Services exclusively from Supplier. 

C. Supplier acknowledges the risk associated with lead times of various raw materials and/or  components if they are beyond those provided in Firm Releases. Supplier further accepts  that any estimates or forecasts of production volumes or length of program, and shall not  be binding upon InductEV. Unless otherwise expressly stated in the Order or the Firm  Release, InductEV makes no representation, warranty, guarantee or commitment of any  kind or nature, whether express or implied to Supplier in respect of InductEV’s quantitative  requirements for the Goods or the Services or the term of supply of the Goods or the  Services.  

D. From time to time and in connection with quotations, requisitions, estimates, releases  containing planning or forecasted quantities, and Orders (“Projections”), InductEV assumptions, some or all of which may change over time, and may or may not be accurate  at the time they were made or at any later time. InductEV makes no representation,  warranty, guaranty or commitment of any kind or nature, express or implied, regarding any  Projections or other estimate, forecast or projection provided to Supplier, including as to  its accuracy or completeness. Supplier accepts that Projections may not be accurate and  that actual volume or duration could be less than or greater than the Projections. Supplier expressly accepts this risk and possible reward. 

5. LABELLING, PACKING AND SHIPMENT 

A. The Goods are to be suitably prepared for shipment and must be labeled, packed and  shipped in accordance with the applicable trade standards, national, state, provincial and  local laws and regulations pertaining to product content and warning labels, including  without limitation the U.S. Toxic Substances Control Act and the European Union directive  2000/53/EC. If recyclable packaging is sent back to the Supplier, InductEV shall be entitled  to claim reimbursement to the value of the packaging. If the Goods are not shipped in  accordance with specifications mentioned above, Supplier shall pay or reimburse InductEV for any excess costs occasioned thereby. 

B. Unless otherwise expressly stated in the Order, Supplier shall not charge InductEV for  labelling, packing, boxing or crating. 

6. DELAYS IN DELIVERY 

A. If Supplier fails or refuses to proceed with the Order or fails to deliver the Goods within  the delivery dates and times specified in the Order or the Release, InductEV may, without  limiting or affecting its other rights or remedies available hereunder or at law, cancel the  remaining balance of the Order or Release. In addition, if Supplier fails to meet the delivery  dates or times of the Goods, other than by reason of Force Majeure, InductEV may, without  limiting or affecting its other rights or remedies available hereunder or at law, direct  expedited shipment and/or incur premium freight or transportation costs, and Supplier shall  pay upon demand all excess costs incurred thereby, including additional handling charges  and other related expenses resulting there from. Supplier shall be responsible for all other  direct, consequential, and incidental damages incurred by InductEV as a result of  Supplier’s failure to meet the delivery dates or times, other than by reason of Force  Majeure, including the cost of any line shutdown and the cost of obtaining goods from an  alternate source. InductEV’s actions in obtaining substitute or replacement products shall  not limit the rights and remedies available hereunder or at law. 

B. In the event that Supplier discovers any fact which may, or could with the passage of time,  result in any delay, Supplier will immediately advise InductEV of such fact and use its best  endeavors to take all measures and precautions to reduce the effect of such delay. In  addition, at any time, at InductEV’s request, Supplier will furnish to InductEV such  information as InductEV may request concerning matters which could result in delays and  assurance or contingency plans with respect to those matters. Supplier shall notify  InductEV immediately of any actual or potential labor dispute delaying or threatening to  delay timely performance of an Order or a Release and will include all relevant  information. 

7. TRANSPORTATION CHARGES, CUSTOMS DUTIES AND TAXES 

A. Unless otherwise set forth in the Order or expressly agreed in writing, all Goods shall be  delivered by Supplier “DDP”, according to INCOTERMS, to InductEV’s plant or the  delivery location otherwise set forth in the Order. 

B. Unless otherwise expressly agreed in writing, all prices shall be deemed to include customs  duties and expenses, tariffs and all federal, provincial, state and local taxes (including all  import taxes, excise taxes and sales taxes) applicable to the manufacture, sale, importation,  exportation, or otherwise arising from provision of the Goods or the Services. 

C. Unless otherwise set forth in the Order, the Goods shall be shipped in a manner that permits  the lowest transportation rates to apply and adequately protects the quality of the Goods.  Supplier shall reimburse InductEV for all expenses, including damage to the Goods,  incurred due to improper packing, marking, or loading. The risk of loss or damage in  transit shall be upon Supplier, except where shipment is by InductEV, in which case the  risk of loss or damage shall pass to InductEV upon completion of loading. Shipments in excess of those set forth in this Order, Release, or authorized by InductEV may be returned  to Supplier at Supplier’s expense, and InductEV may debit Supplier for the cost of such  returns. InductEV may change shipping schedules or direct temporary suspension of such  scheduled shipments. Upon submission of proper invoices, InductEV shall process such  invoices for payment. All cash discounts shall be computed from the date of receipt by  InductEV of a final invoice or receipt of the Goods, whichever occurs later. Cash discounts  shall be based on the full amount of the invoice, less freight charges and taxes if itemized  separately on the invoice. 

8. DOCUMENTATION AND CUSTOMS 

A. Packing slips (which shall accompany the Goods), shipping documents, bills of lading, and  other related documentation shall be mailed and/or sent electronically on the shipment date,  and must show the Order number, vendor, and item and reference numbers. For each  international shipment, Supplier shall include a customs valuation invoice (using the value  set forth in the Order), with a master packing slip and shall furnish all other required  export/import documents. Export and trade credits shall belong to InductEV. Supplier shall furnish: (i) all documents required to obtain export credits and customs drawbacks;  (ii) certificates of origin of the materials and Goods and Services provided and the value  added in each country; (iii) all trade related documents; (iv) all required export licenses or  authorizations; and (v) any other documents requested by InductEV or any of its customers.  Supplier warrants that the contents of such documents shall be true and accurate. Supplier shall indemnify InductEV for any damages, including but not limited to duties, interest and  penalties, arising from a false or inaccurate statement. 

B. Supplier shall provide InductEV with all such support as may be necessary to enable  InductEV to reduce or minimize its liability to customs duties. 

C. For any and all questions and instructions arising out of or required in connection with  customs and declaration of origin, Supplier shall contact InductEV’s respective customs  department. 

D. Supplier shall ensure and observe legal policies and conditions. Supplier shall, on  InductEV’s request, provide evidence by certificates or statements (e.g. Security  Declaration for Authorized Economic Operators AEO, Compliance statement regarding  CTPAT initiative). 

E. Supplier shall inform InductEV of any export restrictions applicable in the country of  manufacturing and/or dispatching of the Goods and Tooling. Supplier shall inform  InductEV if the Goods and Tooling are subject to any export/re-export license under U.S.  law and regulations. If Supplier is located in the European Union, Supplier shall inform  InductEV about any obligation to obtain an export license with respect to dual use goods  as well as munitions subject to the European export control restrictions and the national  codifications of the export control restrictions. Supplier shall advise InductEV about the  classification number applicable (e.g. ECCN - Export Control Classification Number for  US products, "AL-Number" for Goods listed in the German Export Control List, etc.) and  any license exceptions available for the Goods and Tooling. Supplier shall provide  information directly to InductEV AG’s department of customs and export control. 

9. CHANGES

A. Goods supplied or Services performed by the Supplier to InductEV shall be state-of-the art, in particular InductEV part drawings and CAD data in their respective last valid index  version, in compliance with the specifications given by InductEV and indicated in the  Order. The Supplier shall also be responsible for ensuring that the delivered Goods are  suitable for the use intended by InductEV and InductEV's customer. 

B. InductEV reserves the right at any time to direct changes, or cause Supplier to make  changes, to the Goods or Services under any Order including, but not limited to, changes  in the design (including drawings and specifications), processing, methods of packaging  and shipping and the date or place of delivery of the Goods or Services covered by the  Order or to otherwise change the scope of the work covered by the Order including work  with respect to such matters as inspection, testing or quality control, and Supplier agrees  to promptly make such changes. Any such changes shall be deemed not to affect the time  for performance or cost under the Order unless (i) Supplier provides InductEV with written  notice of a claim for adjustment to time for performance or cost within ten (10) days after  InductEV’s notice to Supplier of the change and (ii) after auditing such claim, InductEV determines that an adjustment (up or down) is appropriate. Any such claim by Supplier for  adjustment to time for performance or cost under an Order must be solely and directly the  result of the change directed by InductEV and any notice of such claim shall be effective  only if accompanied by all relevant information sufficient for InductEV to verify such  claim. In addition, InductEV shall have the right to audit all relevant records, facilities,  work or materials of Supplier to verify any claim Supplier shall consider and advise  InductEV of the impact of a design change on the system in which the Goods or Services covered by the Order are used. Nothing in this paragraph shall excuse Supplier from  performing under the Order as changed pending resolution of any claim by Supplier for  adjustment to time or cost. 

C. Without the prior approval of InductEV on the face of an Order amendment or in a Signed  Writing, Supplier shall not make any changes to any Order or the Goods or Services covered by the Order, including, without limitation, changing (i) any third party supplier  to Supplier of services, raw materials or goods used by Supplier in connection with its  performance under the Order, (ii) the facility from which Supplier or such supplier  operates, (iii) the price of any of the Goods or Services covered by the Order, (iv) the  nature, type or quality of any services, raw materials or goods used by Supplier or its  suppliers in connection with the Order; (v) the fit, form, function, appearance, performance  of any Goods or Services covered by the Order; or (vi) the production method, or any  process or software used in the production or provision of any Goods or Services under the  Order. Any changes by Supplier to any Order or the Goods or Services covered by the  Order without the prior approval by InductEV on the face of an Order amendment or in a  Signed Writing shall constitute a breach of the Order. 

10. PRICE  

A. Prices charged for Goods and Services listed on the Order are not subject to increase,  including specifically, but without limitation, any increase based upon changes in currency  fluctuations, raw material, taxes, tariffs or duties, transportation costs, component pricing,  labor or overhead, unless specifically agreed to by InductEV on the face of a Order amendment or in a signed writing.  

B. Supplier warrants that the prices for the Goods and the Services are, and shall ensure that  such prices remain, not less favorable to InductEV than the prices currently extended to any other customer of Supplier for the same or substantially similar goods or services in  the same or substantially similar quantities and delivery requirements. 

C. Supplier shall ensure that the Goods and the Services remain competitive, in terms of price,  technology and quality, with substantially similar goods and services available to InductEV from other suppliers. 

D. Supplier warrants that the prices in the Order shall be complete, and no surcharges,  premiums or other additional charges of any type shall be added, without InductEV’s prior  written consent. Supplier expressly assumes the risk of any event or cause (whether or not  foreseen) affecting such prices, including any foreign exchange rate changes, increases in  raw materials costs, inflation, increases in labor and other manufacturing costs. 

11. INVOICING AND PAYMENT TERMS 

A. Unless otherwise set forth in the Order, payment shall be made within 60 days net. Periods  shall commence on receipt of Goods and/or Services as stated in the Order and an invoice  in proper and verifiable form is available. In the event that deliveries are accepted early,  however, the period shall commence on the agreed delivery date at the earliest. Payments  will be made in the currency expressly stated in the Order: If no such currency is noted,  payment will be made in U.S. Dollars. If a payment date falls on a non-business day,  payment will occur on the following business day. 

B. If requested by InductEV, Supplier will provide InductEV with Advance Shipping Notices  (“ASNs”) and otherwise comply with InductEV shipping and invoicing requirements.  Failure to do so by the Supplier may delay payment to the Supplier.  

C. All invoices and/or ASNs must reference the Order number, Order amendment or Release number, InductEV’s part number, Supplier’s part number where applicable, quantity of  pieces in shipment, number of cartons or containers, Supplier’s name and number, and bill  of lading number, before any payment will be made for Good or Services. In addition, no  invoice may reference any term separate from or different than these Terms or the terms  that appear on the face of the Order. InductEV reserves the right to return all invoices or  related documents submitted incorrectly. Payment terms will commence upon the receipt  and input of a correct invoice or ASN into InductEV’s invoicing system. Any payment by  InductEV of a nonconforming invoice is not an acceptance of any non-conforming  elements or terms on such invoice. 

D. InductEV shall not be liable to Supplier for any delay in payment, or any other damages,  resulting from Supplier’s failure to comply with InductEV’s shipping and invoicing  requirements. 

12. SET-OFF, RECOUPMENT 

A. In addition to any right of set-off or recoupment provided by law, all amounts due to  Supplier will be considered net of indebtedness of Supplier and its subsidiaries and  affiliates to InductEV and its subsidiaries and affiliates. InductEV shall have the right to  set-off against or recoup from any payment or other obligation owed to Supplier, in whole  or in part, any amounts due to InductEV or its affiliates or subsidiaries from Supplier or its  affiliates or subsidiaries. InductEV will provide Supplier with a statement describing any  offset or recoupment taken by InductEV if requested by the Supplier.

B. If an obligation of Supplier or any of its subsidiaries or affiliates to InductEV or any of its  subsidiaries or affiliates is disputed, contingent or unliquidated, InductEV or any of its  subsidiaries or affiliates may defer payment of all or any portion of the amount due until  such obligation is resolved. Without limiting the generality of the foregoing and by way  of example only, in the event of a bankruptcy of Supplier, if all of the Orders between  InductEV and Supplier have not been assumed, then InductEV may defer payment to  Supplier, via an administrative hold or otherwise, for Goods and Services against potential  rejection and other damages. 

13. WARRANTIES 

A. “Warranty Period” shall mean, for each of the Goods or Services provided, the time  period beginning on the later of the day of first use of the Goods or Services by InductEV or acceptance by InductEV, and continuing until the later of: (i) 48 months; (ii) the period  provided under applicable law; or (iii) the new product warranty period offered by  InductEV’s customer or its customer in the country in which the products incorporating  the Goods or Services are sold. Supplier may contact InductEV’s representative for  information regarding those countries in which products incorporating the Goods and  Services will be sold. 

B. Supplier expressly warrants and guarantees to InductEV that, for the duration of the  Warranty Period, the Goods and the Services, including any special tools, dies, jigs,  fixtures, patterns, machinery and equipment, that are delivered or provided to InductEV for the performance of the Order and/or are or become the property of InductEV shall: (i)  conform to all drawings, specifications, samples and other descriptions furnished, specified  or adopted by InductEV; (ii) comply with all applicable laws, regulations, rules, codes and  standards of the jurisdictions in which the Goods or the Services, and the products  containing the Goods and Services, are to be sold, including without limitation the National  Traffic an Motor Vehicle Safety Act, United States motor vehicle safety standards and  European Union Directive 2000/53/EC; (iii) be merchantable; (iv) be free from any defects  in design, to the extent furnished by Supplier or any of its subcontractors, agents or  suppliers, even if the design has been approved by InductEV; (v) be free from any defects  in materials and workmanship; (vi) be fit, sufficient and suitable for the particular purposes for which InductEV intends to use the Goods or the Services, including, but not limited to, the specified performance in the component, system, subsystem and product location and  the environment in which they are or may be expected to perform; (vii) be free of all liens,  claims and encumbrances whatsoever. For the purposes of clause vi above; (vii) all  Services shall be performed in a competent, workmanlike manner; (viii) the Goods shall  be manufactured, and the Services performed, in accordance with all applicable federal,  state, and local laws, regulations, industry standards or other standards, labeling,  transporting, licensing approval or certification requirements in the United States or any  other country where the Goods and Services will be sold or used; and (ix) Supplier has  complied with QS 9000, ISO 14001, IATF 16949, PPAP, APQP, and end of life vehicle  reporting and other requirements, as well as international softwood standards, including  USDA Regulations on Wood Packaging Material Imports, in fulfilling this Order and all  other Orders. Supplier acknowledges that Supplier knows the particular purpose for which  InductEV intends to use the Goods or the Services. Supplier further expressly warrants  that, unless otherwise expressly stated in the Order, the Goods are manufactured entirely  with new materials and none of the Goods is, in whole or any part, governmental or  commercial surplus or used, remanufactured, reconditioned or of such age or condition so  as to impair its fitness, usefulness or safety. The warranties in this subparagraph, together with other warranties set forth in these Terms, are referred to as the “Supplier’s  Warranties.” 

C. It is the intent of both Supplier and InductEV that the warranty obligations and other  requirements InductEV has to its end customer shall flow through InductEV to Supplier to  the extent that they do not conflict with the terms of the Order. To the extent that Supplier  does not meet the applicable warranty obligations and requirements of InductEV’s  customer, Supplier agrees, notwithstanding any such conflict, to indemnify and hold  harmless InductEV from any and all claims and demands from InductEV’s customer  relating to any actual or alleged problem or issue with the Goods or Services sold by  Supplier under any Order or the manner in which Supplier has supplied such Goods and  Services under the Order. 

D. The Supplier’s Warranties are available to, and for the benefit of, InductEV, its subsidiaries  and affiliates, their respective successors and assigns, and end-users of products containing  the Goods or the Services. 

E. Supplier shall indemnify and hold InductEV and its their respective representatives,  employees, agents, customers, invitees, subsidiaries, affiliates, successors and assigns,  harmless from and against all liabilities, claims, demands, losses, costs, damages and  expenses of any nature or kind (including consequential and special damages, personal  injury, property damages, lost profits, recall or other field service action costs, production  interruption costs, inspection, handling and reworking charges, professional and other legal  fees, and other costs associated with InductEV’s administrative time, labor and materials)  arising from or as a result of: (i) any breach the Supplier’s Warranties; and (ii) any other  acts, omissions or negligence of Supplier or of any of its subcontractors or suppliers in  connection with Supplier’s performance of its obligations under the Order. No limitations  on InductEV’s rights or remedies in any of Supplier’s documents shall operate to reduce  or exclude such indemnification. 

F. In the event that InductEV voluntarily or pursuant to a government mandate, makes an  offer to owners of vehicles (or other finished products) in which the Goods and Services,  or any parts, components or systems incorporating the Goods and Services, are installed to  provide remedial action to address a defect or condition that relates to motor vehicle safety  or reliability or the failure of the product in which the Goods or Services are incorporated  to comply with any applicable law, safety standard or guideline, whether in connection  with a recall campaign or other customer satisfaction or corrective service action (a  “Remedial Action”), the Warranty Period shall continue for such time period as may be  dictated by InductEV or the federal, state, local or foreign government where the Goods  and Services are used or provided and Supplier shall fully comply with the requirements  of this Order. 

G. Notwithstanding the expiration of the Warranty Period, Supplier shall nonetheless be liable  for costs and damages associated with any Remedial Action to the extent that such  Remedial Action is based upon a reasonable determination (including by use of statistical  analysis or other sampling methodology) that the Goods and Services fail to conform to  the warranties set forth in the Order. Where applicable, Supplier shall pay all reasonable  expenses associated with determining whether a Remedial Action involving the Goods and  Services is necessary. InductEV and Supplier agree that any Remedial Action involving  the Goods and Services shall be treated separately and distinctly from similar Remedial  Actions of other goods of Supplier; provided that such separate and distinct treatment is lawful and Supplier shall in no event fail to provide at least the same protection to InductEV on such Goods and Services as Supplier provides to its other customers in connection with  such similar Remedial Actions. 

14. DEFECTIVE OR NON-CONFORMING GOODS OR SERVICES 

If any of the Goods or the Services fail to meet the Supplier’s Warranties, in addition to all other  rights and remedies available by contract and applicable law: 

A. InductEV shall have the right, in addition to exercising all other rights InductEV may have  under the Uniform Commercial Code and any other applicable statutes or law, to take the  following actions, at InductEV’s option: (i) retain the defective Goods and Services in  whole or in part with an appropriate adjustment in the price for the Goods and Services;  (ii) require Supplier to repair or replace the defective Goods and Services in whole or in  part at Supplier’s sole expense, including all shipping, transportation, and installation costs;  (iii) correct or replace the defective Goods and Services with similar items and recover the  total cost relating thereto from Supplier, including the cost of product recalls; or (iv) reject  the defective Goods and Services. 

B. Supplier shall, upon notice thereof from InductEV at any time, promptly repair, replace or  otherwise satisfactorily deal with the same in a manner acceptable to InductEV, all at  Supplier’s expense and without limiting or affecting InductEV’s other rights or remedies  available hereunder or at law. The rights and remedies reserved to InductEV will be  cumulative with and in addition to all other or legal equitable remedies. Supplier will  reimburse InductEV for any incidental, consequential or other damages – including lost  profits – caused or required by Supplier’s breach of Supplier’s Warranties or by defective  or non-conforming Goods, including without limitation costs expenses and losses incurred  directly or indirectly by InductEV: (i) in inspecting, storing, sorting, reworking, repairing  or replacing such Goods; (ii) resulting from production interruptions; (iii) conducting or  participating at recall campaigns, field service actions or other corrective service actions;  or (iv) resulting from personal injury, including death, of property damage caused by such  Goods. The Supplier’s Warranties shall also apply to such repaired, replaced or otherwise  satisfactorily dealt with the Goods or the Services. 

C. Without limiting or affecting InductEV’s other rights or remedies available hereunder or  at law, cancel the Order as to the particular Goods or Services and/or cancel the then  remaining balance of the Order. 

D. After notice to Supplier, all defective or non-conforming Goods shall be held at Supplier’s  risk. InductEV may, and at Supplier’s direction shall, return such defective or non conforming Goods to Supplier at Supplier’s risk, and Supplier shall promptly pay, upon  InductEV’s demand, all transportation and other applicable charges, both to and from the  original destination. 

E. Any payment made by InductEV for defective or non-conforming Goods or Services shall  be refunded by Supplier, except to the extent that Supplier promptly replaces or corrects  the same at Supplier’s expense. 

15. INSPECTION AND QUALITY CONTROL

A. InductEV shall have the right (but not the obligation) to inspect, to review work progress,  and to test all Goods and Services, special tooling, materials and workmanship to the extent  practicable at all times and places during the period of manufacture. If any Goods and  Services are defective in material or workmanship or otherwise not in conformity with the  requirements of any Order, InductEV shall have the right, notwithstanding payment, any  prior inspection or test, custom or usage of trade, either to reject them or to require their  correction by and/or at the expense of Supplier promptly after notice. 

B. Supplier will conform to the quality control and other standards and inspection systems of  InductEV and (as applicable) its customers, including without limitation quality control  policies, ISO 9001:2000 or ISO/TS 16949:2002 quality certification and ISO 14001  environmental certification including registration. Supplier will also participate in supplier  quality and development programs of InductEV. Supplier agrees to meet the full  requirements of industry Production Part Approval Processes (PPAP) as specified by  InductEV and agrees to present this information to InductEV upon request, at the level  requested. Supplier shall ensure that all and any of its sub-contractors are contractually  bound to comply with the terms of this Paragraph. 

16. INTELLECTUAL PROPERTY 

A. All Goods and Services, including, but not limited to, any idea, invention, concept, design,  prototype, product configuration, process, technique, procedure, system, plan, model,  program, software or code, data, specification, drawings, diagram, flow chart,  documentation, or the like that are created in the course of performing any Order and any  associated intellectual property rights therein are the sole and exclusive property of  InductEV. Supplier agrees that all works of authorship created by Supplier in connection  with each Order are “works made for hire” on behalf of InductEV as that term is used in  connection with the U.S. Copyright Act. The term “intellectual property” as used herein  means all patents, patent applications, patentable subject matter, copyrights, copyrightable  subject matter, work of authorship, derivative works, trademark, trade name, trade dress,  trade secrets, know-how, and any other subject matter, material, or information that is  considered by InductEV to be proprietary or confidential and/or that otherwise qualifies  for protection under any law providing or creating intellectual property rights, including  the Uniform Trade Secrets Act.  

B. Supplier hereby assigns to InductEV ownership of all right, title, and interest in the Goods  and Services, and any associated intellectual property, and further agrees to cooperate with  InductEV and to assist in the preparation and execution of all documents relating to any  effort by or on behalf of InductEV to apply for, obtain, maintain, transfer, or enforce any  intellectual property right related to the Goods and Services at the request and expense of  InductEV.  

C. Supplier expressly warrants that the Goods and Services shall not incorporate any  intellectual property (including copyright, patent, trade secret, mask work, or trademark  rights) of any third party, and further agrees that Supplier shall not disclose to InductEV any confidential information, including any trade secrets, of any third party. 

D. Supplier shall indemnify, defend and hold InductEV, and InductEV’s affiliated companies  harmless from and against all liabilities, costs, damages, claims and expenses (including  court costs and legal expenses and any settlement of such claim or action) incurred by  InductEV in respect of any claim or action brought by InductEV’s customer infringe the intellectual property rights of such third party. Notwithstanding the foregoing, Supplier  shall not be liable to the extent that the infringement results from the manufacture of the  Goods in solely accordance with designs received from InductEV and Supplier taking the  level of care that is customary in the industry could not have known that following these instructions would result in an infringement of a third party’s intellectual property right.  

E. In the event of a claim of infringement of any third party rights that is communicated to  Supplier, Supplier shall take the needed steps to insure for InductEV a non-infringing  source of supply, which may involve securing the needed licenses (if any), redesign of the  product (subject to any agreed requirements and qualification obligations), or other steps  Supplier deems necessary to ensure that a non-infringing product is delivered to InductEV. 

17. LICENSE 

A. In the event that the Goods or Services incorporate any background intellectual property  owned by Supplier, or any third-party intellectual property, Supplier shall specify any and  all intellectual property rights known or becoming known to him, which are used in the  design or manufacture of, or which otherwise affect or relate to the Goods or the Services. 

B. Supplier grants to InductEV an irrevocable, non-exclusive, royalty-free, worldwide license  with the right to grant sublicenses to affiliates to use any technical information, know how,  copyrights, and patents, or other intellectual property owned or controlled by Supplier or  its affiliates to make, have made, use, sell, and import any Goods or Services provided by  Supplier under an Order. Such license shall be effective from the first delivery under the  Order.  

18. CONFIDENTIALITY AND NON-DISCLOSURE 

A. Supplier acknowledges and agrees that it will be obligated to maintain the secrecy and  confidentiality of all information disclosed by InductEV to Supplier during the course of  work under any Order (“Confidential Information”), including, but not limited to, any  information regarding InductEV business or its customers, the existence and terms of any  Order, and any drawings, specifications, or other documents prepared by either party in  connection with any Order. Supplier agrees that it will not disclose Confidential  Information to or use Confidential Information with or for the benefit of itself or any third party without prior written authorization from InductEV. Supplier also agrees to adopt  measures to protect the secrecy and confidentiality of Confidential Information that are  reasonable under the circumstances. Confidential Information shall not include any  information that (i) was in the possession of Supplier before receipt from InductEV; (ii) is  or becomes available to the public through no fault of Supplier; or (iii) is received by  Supplier in good faith from a third party having no duty of confidentiality to InductEV.  The burden of proofing for such aforementioned exception shall be borne by the Supplier. 

B. The obligations of Supplier with respect to Confidential Information shall remain in effect  during the time that any Confidential Information is considered by InductEV to be secret  or confidential or otherwise qualify for protection under the Uniform Trade Secrets Act.  At the request of InductEV, Supplier will return to InductEV all materials (in any form)  that include, incorporate, or otherwise Confidential Information of InductEV.

C. Unless otherwise agreed in writing, all information provided by Supplier to InductEV in  connection with an Order shall be disclosed on a non-confidential basis, and InductEV shall have no duty to maintain the secrecy or confidentiality of such information. 

19. COMPLIANCE WITH LAWS 

A. Supplier and any Goods or Services supplied by Supplier, shall comply with all applicable  laws, including rules, regulations, orders, conventions, ordinances and standards, including  without limitation (i) in relation to the manufacture, labelling, transport, import, export,  licensing, approval of certification of the Goods or Services, and (ii) laws relating to  environmental matters, hiring, wages, hours and conditions of employment, international  prohibitions on child labor, subcontractor selection, discrimination, occupational health or  safety and motor vehicle safety. 

B. All materials used by Supplier in the Goods or Services or their manufacture will satisfy  current governmental and safety constraints on restricted, toxic and hazardous materials as  well as environmental, electrical and electromagnetic considerations that apply to the  country of manufacture, sale or destination. 

20. INSURANCE 

A. Supplier shall procure and maintain at its sole expense insurances with reputable and  financially responsible insurance companies, which adequately cover Supplier’s liability  against InductEV and third parties. InductEV, in its sole discretion, may determine the  sufficiency of such insurance coverage. InductEV is entitled to require certain insurance  coverages and amounts to be taken out by Supplier. Supplier shall provide to InductEV certificates of such insurances and renewals thereof signed by the issuing company or agent  or other information respecting such insurance at any time promptly upon InductEV’s  request. 

B. InductEV’s examination of, or failure to request or demand any evidence of insurance  hereunder, shall not constitute a waiver of any requirement of this Paragraph and the  existence of any insurance shall not limit Supplier’s obligation under any provision hereof. 

21. TERMINATION FOR CONVENIENCE UPON NOTICE 

A. In addition to any other rights of InductEV to cancel or terminate the Order, InductEV may,  at its option and in its sole discretion, terminate all or any part of the Order at any time and  for any reason, and notwithstanding the existence of any event of Force Majeure, upon written notice to Supplier. Upon receipt of notice of termination, and unless otherwise  directed by InductEV, Supplier will: (i) promptly terminate all work under the Order on  the effective date of termination; (ii) transfer title and deliver to InductEV the finished  Goods, the work in process, and the parts and materials that Supplier reasonably produced  or acquired according to quantities ordered by InductEV and that Supplier cannot use in  producing goods for itself or for others; (iii)verify and settle any claims by subcontractors  for actual costs incurred directly as a result of the termination and ensure the recovery of  materials in subcontractors’ possession; (iv) take actions reasonably necessary to protect  property in Supplier’s possession in which InductEV has an interest until disposal  instruction from InductEV has been received; and (v) upon InductEV’s request, cooperate  with InductEV in Transition Support (as subsequently defined in these Terms).

B. Upon termination by InductEV under this Section, InductEV will be obligated to pay only  the following amounts, without duplication: (i) the price for all finished Goods or Services  in the firm quantities ordered by InductEV that conform to the Order for which Supplier  has not been paid; and (ii) Supplier’s reasonable actual cost of merchantable and useable  work-in-process that, at InductEV’s election, is transferred to InductEV. 

C. Notwithstanding any other provision, InductEV will have no obligation for and will not be  required to pay Supplier, directly or on account of claims by Supplier’s subcontractors, for  loss of anticipated profit, capital expenditures, unabsorbed overhead, interest on claims,  product development and engineering costs, tooling, facilities and equipment  rearrangement costs or rental, unamortized capital or depreciation costs, finished goods,  work-in-process or raw materials that Supplier fabricates or procures in amounts exceeding  those authorized in the Releases, or general administrative burden charges from  termination of the Order, except as otherwise expressly agreed in a separate Order issued  by InductEV. InductEV’s obligation upon termination under this Section will not exceed  the obligation InductEV would have had to Supplier in the absence of termination. 

D. Supplier will furnish to InductEV, within one month after the date of termination, its  proven termination claim, which will consist exclusively of the items of InductEV’s  obligation to Supplier that are expressly permitted by this Paragraph 21. InductEV will  have no obligation for payment to Supplier under this Paragraph 21 if InductEV terminates  the Order or portion thereof because of a default or breach by Supplier, and any termination  shall be without prejudice to any claims which InductEV may have against Supplier.  

E. InductEV’s rights to terminate the Order as established in any applicable provision of these  Terms may be exercised by InductEV, without the need for judicial involvement or  declaration. 

22. TERMINATION UPON SUPPLIER’S DEFAULT OR CHANGE OF CONTROL 

A. InductEV may terminate the Order, in whole or in part, for default occasioned by  Supplier’s: (i) breach of any terms of the Order; (ii) failure to perform in accordance with  the requirements of the Order; or (iii) failure to make progress so as to endanger timely and  proper delivery of the Goods or completion of the Services and, in each such case, Supplier  does not correct such breach or failure within twenty (20) days (or such period of time  otherwise set forth in writing by InductEV or as InductEV may determine) after receipt of  written notice from InductEV specifying such breach or failure. Supplier shall be liable for  all costs, damages and expenses caused by or resulting from its default under the Order. 

B. InductEV may terminate the Order, in whole or in part, in the event of a change of control  of Supplier. For the purposes of the Order, a “change of control” includes: (i) any sale,  lease or exchange of a substantial portion of Supplier’s assets used in connection with  Supplier’s performance of its obligations under the Order; (ii) any sale or exchange of a  sufficient number of shares of Supplier, or of any affiliate that controls Supplier, to effect  a change in management of Supplier; or (iii) the execution of a voting or other agreement  of control in respect of Supplier, or of any affiliate that controls Supplier. Supplier shall  notify InductEV in writing within ten (10) days of any change of control of Supplier, and  InductEV may terminate the Order by giving written notice to Supplier at any time up to  sixty (60) days after InductEV’s receipt of Supplier’s notice of change of control.

C. Any termination under this Paragraph 22 shall be without liability to InductEV, except for  the Goods delivered or the Services performed by Supplier and accepted by InductEV. 

23. TERMINATION UPON INSOLVENCY 

Either party may terminate the Order, without liability to the other party: (i) in the event of the  insolvency, bankruptcy, reorganization, arrangement, receivership or liquidation by or against the  other party; (ii) in the event that the other party makes an assignment for the benefit of its creditors  or ceases to carry on business in the ordinary course; or (iii) if a receiver is appointed in respect of  the other party or all or part of its property (collectively, an “Insolvency Event”). In the event of  such termination, the other party shall be liable for all costs, damages and expenses suffered by the  party that terminates the Order. Any such termination shall not affect the entitlement of InductEV with respect to the InductEV Property. 

24. TRANSITION OF SUPPLY 

A. In connection with InductEV’s termination or non-renewal of the Order, or InductEV’s  other decision to source the Goods and/or the Services from any alternate supplier(s),  Supplier will cooperate with InductEV in the transition of supply of the Goods and/or the  Services, including the following: (i) Supplier will continue production and delivery of all  Goods and/or Services as ordered by InductEV, at the prices and other terms stated in the  Order, without premium or other condition, during the entire period reasonably needed by  InductEV to complete the transition to the alternate supplier(s), such that Supplier’s action  or inaction causes no interruption in InductEV’s ability to obtain the Goods and/or Services  as needed; (ii) at no cost to InductEV, Supplier will promptly provide all requested  information and documentation regarding and access to Supplier’s manufacturing process,  including on-site inspections, bill-of-material data, tooling and process detail and samples  of the Goods and/or Services and components; and (iii) subject to Supplier’s reasonable  capacity constraints, Supplier shall provide special overtime production, storage and/or  management of extra inventory of the Goods, extraordinary packaging and transportation  and other special services (collectively, “Transition Support”) as expressly requested by  InductEV in writing. 

B. If the transition of supply occurs for reasons other than InductEV’s termination of the Order  as stated in these Terms, InductEV shall, at the end of the transition period, pay the  reasonable, actual cost of Transition Support as requested by InductEV and incurred by  Supplier, provided that InductEV has approved Supplier’s estimate of such costs prior to  Supplier incurring such amounts. 

25. SERVICE AND REPLACEMENT PARTS 

A. Following termination of Supplier’s supply of the Goods to InductEV’s , for a period of  fifteen (15) years or for such other period of time as InductEV shall require in writing,  Supplier shall sell to InductEV 100% of InductEV’s requirements for Goods for use as  service or replacement parts at the prices then specified in the last Order for current model  production plus any actual net cost differential for required unique packaging, shipping and  handling. If a dispute arises between Supplier and InductEV regarding the price of service  or replacement parts under this paragraph, Supplier shall continue to supply InductEV’s requirements for service and replacement parts at the production prices set forth in the  Order pending resolution of such dispute.

B. Supplier shall impose corresponding obligations on its sub-suppliers in order to enable  Supplier to meet its obligations to InductEV for service and replacement parts. 

C. InductEV and InductEV’s affiliated companies shall be entitled to purchase Goods used as  service or replacement parts directly from Supplier’s sub-contractors or from any other  third party. 

D. Unless otherwise expressly agreed in writing by an authorized representative of InductEV or InductEV removes tooling from Supplier necessary for the production of service parts,  Supplier’s obligations under this Article 25 shall survive termination or expiration of the  Order for any reason. 

26. SUBCONTRACTS 

Supplier shall in general ensure that the terms of its contracts with its sub-suppliers and sub contractors provide InductEV with all of the rights specified in the Order and the Terms. 

27. ASSIGNMENT 

Each Order is issued to the Supplier in reliance upon Supplier’s personal performance of the duties  imposed. Supplier agrees not to, in whole or in part, assign this Order or delegate the performance  of its duties without the written consent of InductEV. Any such assignment or delegation without  the previous written consent of InductEV, shall be void and, at the option of InductEV, shall effect  a cancellation of this Order. Unless expressly agreed otherwise in writing by InductEV, any  consent by InductEV to an assignment shall not be deemed to waive InductEV’s rights against  Supplier under the Order or to relieve Supplier from its liability and obligations under the Order.  InductEV shall have the right to assign any benefit or obligation under this Order to any third party  upon notice to Supplier. 

28. REMEDIES 

A. The remedies reserved in the Order shall be cumulative and not alternative and may be  exercised separately or together, in any order or combination, and are in addition to any  other remedies provided for or allowed by law, at equity or otherwise. 

B. Supplier expressly acknowledges and agrees that any failure of Supplier to deliver the  Goods on the delivery dates and times as specified in the Order will cause irreparable harm  to InductEV and that InductEV shall be entitled to equitable relief, including injunction, in  such event. 

C. Any proceeding or action initiated by Supplier against InductEV for breach of contract or  any other act or omission (including tort) arising from or in any way related to the Order  must be commenced within one (1) year from the date the breach, act or omission giving  rise to Supplier’s claim occurs, regardless of Supplier’s knowledge of such breach, act or  omission or of its consequences. 

D. IN NO EVENT SHALL INDUCTEVEV BE LIABLE TO SUPPLIER FOR  ANTICIPATED PROFITS OR FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL  DAMAGES. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER  AGREE THAT:

i. WITH RESPECT TO A CLAIM ARISING OUT OF OR IN CONNECTION  WITH THE TERMINATION OF THIS AGREEMENT OR ANY ORDER,  SUPPLIER’S DAMAGES, IF ANY, SHALL BE LIMITED TO THE DAMAGES  SET FORTH IN THE TERMINATION CLAIMS PARAGRAPH OF THESE  TERMS; AND 

ii. WITH RESPECT TO ALL OTHER CLAIMS, SUPPLIER’S DAMAGES SHALL  BE LIMITED TO THE LESSER OF: (a) THE VALUE OF PRODUCTS  PURCHASED BY INDUCTEVEV FROM SUPPLIER IN THE THREE MONTHS IMMEDIATELY PRECEDING THE ALLEGED BREACH; OR (b)  CUMULATIVE DAMAGES OF $100,000 FOR ALL BREACHES OF ANY  ORDER. 

29. FORCE MAJEURE 

A. Any delay or failure of either party to perform its obligations will be excused if and to the  extent that the party is unable to perform specifically due to an unforeseeable event or  occurrence beyond its reasonable control and without its fault or negligence, such as: acts  of God; restrictions, prohibitions, priorities or allocations imposed or actions taken by a  governmental authority (whether valid or invalid); embargoes; fires; floods, earthquakes,  explosions; natural disasters; riots; wars; sabotage; inability to obtain power; or court  injunction or order (each, an event of “Force Majeure”). Written notice of such delay,  including the anticipated duration of the delay, must be given by the nonperforming party  within two (2) days of the Force Majeure event.  

B. Any delay or failure that Supplier can overcome through additional planning, efforts or  expenditures (including, but not limited to, the use of expedited shipping or overtime) shall  not be excused due to an event of Force Majeure. Supplier shall be obligated, at its own  expense, to undertake such measures as may be necessary to overcome any such failure or  delay. The change in cost or availability of materials or components based on market  conditions, supplier actions, or contract disputes or any labor strike or other labor  disruption applicable to Supplier or any of its subcontractors or suppliers, will not excuse  Supplier’s performance (under theories of force majeure, commercial impracticability or  otherwise), and Supplier assumes these risks. As soon as possible (but no more than one  full business day) after the occurrence, Supplier will provide written notice describing such  delay and assuring InductEV of the anticipated duration of the delay and the time that the  delay will be cured. 

C. During such delay or failure to perform by Supplier, InductEV may at its option: (i) purchase Goods from other sources and reduce its schedules to Supplier by such quantities,  without liability to Supplier; (ii) require Supplier to deliver to InductEV at InductEV’s  expense all finished Goods, work in process and parts and materials produced or acquired  for work under the Order; or (iii) have Supplier provide Goods or Services from other  sources in quantities and at a time requested by InductEV and at the price set forth in the  Order. In addition, Supplier at its expense will take all necessary actions to ensure the  supply of Goods or Services to InductEV for a period of at least 30 days during any  anticipated labor disruption or resulting from the expiration of SUPPLIERS labor  contracts. Otherwise, InductEV may terminate the Order without liability and Supplier  shall reimburse InductEV for costs associated with the termination. 

D. If requested by InductEV, Supplier shall, within five (5) days of such request, provide  adequate assurance that the delay will not exceed such period of time as InductEV deems  appropriate. If the delay lasts more than the time period specified by InductEV, or Supplier does not provide adequate assurance that the delay will cease within such time period,  InductEV may, among its other remedies, immediately cancel this Order and all  outstanding Releases issued pursuant thereto, without liability.  

E. Supplier shall reimburse InductEV for any increase in price or costs of any nature that  InductEV incurs or is required to pay to, or in connection with, a substitute supplier in  order to obtain the Goods and Services and to meet production requirements. Notwithstanding an event of Force Majeure, Supplier shall indemnify and hold InductEV harmless from any additional costs or liabilities incurred by InductEV resulting from an  event of Force Majeure of the Supplier, including but not limited to expedited shipping or  overtime charges, and debits or charges from InductEV’s customers. 

30. WAIVER 

Either party’s failure to insist on the performance by the other party of any Term or failure to  exercise any right or remedy reserved in the Order, or either party’s waiver of any breach or default  hereunder by the other party shall not, thereafter, waive any other terms, conditions, rights,  remedies, breaches or defaults, whether of the same or a similar type or not. 

31. MODIFICATIONS 

No modification of the Order, including any waiver of or addition to any of the Terms, shall be  binding upon InductEV, unless made in writing and signed by InductEV’s authorized  representative. 

32. TORT OBLIGATIONS 

InductEV’s rights and Supplier’s obligations under the Order shall not limit in any way whatsoever  Supplier’s common-law tort obligations or InductEV’s right to sue in tort in addition, or as an  alternative, to suing in contract. 

33. RELATIONSHIP OF THE PARTIES 

Supplier and InductEV are independent contracting Parties and nothing in the Order shall make  either party the agent or legal representative of the other for any purpose whatsoever, nor does the  Order grant either party any authority to assume or to create any obligation on behalf of or in the  name of the other. None of the persons engaged by Supplier in the performance of its obligations  under the Order shall be considered as employees of InductEV. 

34. SEVERABILITY 

If any provision of the Order is invalid or unenforceable under any statute, regulation, ordinance,  executive order or other rule of law, such provision shall be deemed reformed or deleted, as the  case may be, but only to the extent necessary to comply with such statute, regulation, ordinance,  order or rule, and the remaining provisions of the Order shall remain in full force and effect.

35. NOTICES 

Except as otherwise expressly stated in the Order, any notice given or other communication sent  under the Order shall be in writing and shall be properly delivered to its addressee by hand, prepaid  courier, registered mail, e-mail (receipt confirmed) or facsimile (receipt confirmed) at the  applicable address noted on the face of the Order. Any notice or communication given as provided  herein shall be deemed to have been received at the time of its delivery if delivered by hand, on the  business day following its dispatch if transmitted by courier, e-mail or facsimile or on the third  business day following its mailing if transmitted by registered mail. Either party may notify the  other party, in the manner provided for herein, of any change of address, for the purpose of giving  notices or sending communications under the Order. 

36. TOOLING AND OTHER InductEV PROPERTY 

A. Unless otherwise expressly stated in the Order, Supplier shall supply at its own expense all  materials, equipment, tools, jigs, dies, fixtures, patterns, drawings, specifications, samples  and facilities required to perform the Order (the “Supplier’s Property”). Supplier grants  InductEV an irrevocable option to take possession of and title to the Supplier’s Property  that is special for the production of the Goods, upon payment to Supplier of its net book  value less any amounts that InductEV has previously paid to Supplier for the cost of such  items; provided, however, that this option shall not apply if the Supplier’s Property is used  to produce goods that are the standard stock of Supplier or if a substantial quantity of  similar goods are being sold by Supplier to others. 

B. Notwithstanding any other provision, Supplier expressly acknowledges and agrees that: (i)  all materials, parts, components, assemblies, tools, jigs, dies, fixtures, patterns, drawings,  specifications and samples, including any replacements thereof and any special tooling  produced by Supplier for the performance of its obligations under the project (“Tooling”),  that are furnished to Supplier or specifically paid for, in whole or in part, by InductEV; and  (ii) all of the Goods that have been paid for, in whole or in part, by InductEV, whether or  not InductEV has exercised its rights of inspection in respect thereof shall be the property  of InductEV (all items in clauses (i) and (ii) above, collectively the “InductEV Property”).  

C. All InductEV Property shall be held by Supplier on a bailment basis and remain the  property of, with both title and the right of possession in, InductEV and without limitation  to any rights and remedies available hereunder or at law. At the InductEV’s request, the  Parties shall enter into a separate bailment agreement regarding InductEV´s Property. 

D. While the InductEV Property is within Supplier's custody or control and while in the  custody or control of Supplier’s, contractors or agents, Supplier will: (i) properly house  and maintain the InductEV’s Property on Supplier’s premises; (ii) not use the InductEV’s  Property for any purpose other than for performance under the Order; (iii) prominently  mark the InductEV’s Property as property of InductEV; (iv) refrain from commingling the  InductEV’s Property with the property of Supplier or with that of a third party; (v)  adequately insure the InductEV’s Property against loss or damage, including but not  limited to maintaining full fire and extended coverage insurance for replacement value and  naming InductEV as an additional insured; (vi) take reasonable steps to ensure that the  InductEV’s Property does not become subject to any liens or other claims; and (vii) not  move the InductEV’s Property to another location whether owned by Supplier or a third  party, without the prior written consent of InductEV. InductEV will have the right to enter Supplier’s premises at reasonable times to inspect the InductEV’s Property and Supplier’s  records pertaining thereto. Supplier expressly waives and releases, and agrees not to file  or otherwise assert or prosecute or suffer to permit any statutory, equitable or other liens,  including but not limited to equitable or other liens, including but not limited to any molder  liens, tool liens, builder liens and the like, that Supplier has or might have on or in  connection with the InductEV’s Property for all work, including but not limited to,  designing, manufacturing, improving, maintaining, servicing, using, assembling,  fabricating or developing the InductEV’s Property. 

E. Supplier shall promptly notify InductEV of the location of the InductEV Property, if any  are located at any place other than Supplier's facility. Unless otherwise expressly stated,  Supplier shall maintain accounting and property control records for the InductEV Property  in accordance with sound industrial practices. Supplier undertakes, at Supplier's expense,  to maintain the InductEV Property in good condition and to repair within the lifetime  and/or until the agreed output quantity has been reached, and shall replace any of the  InductEV Property if, as and when necessary or reasonably required. InductEV does not  provide any warranties with respect to the InductEV Property. Upon completion or  termination of the project, Supplier shall retain on a bailment basis for InductEV, as  aforesaid, the InductEV Property still then in the physical possession of Supplier, at  Supplier's expense, until disposition directions are received from InductEV.  

F. Supplier shall use the InductEV Property solely for the purpose of performing its  obligations under the project. InductEV Property, while in Supplier’s custody or control  and while in the custody or control of Supplier’s subsuppliers, contractors or agents, shall  be marked and adequately identified as the InductEV Property, and to the extent possible,  will be isolated from Supplier’s property. 

G. Upon receipt of InductEV’s demand or disposition directions, Supplier shall, at InductEV’s  expense, immediately prepare the InductEV Property for shipment and shall deliver it to  such locations as may be specified by InductEV. InductEV Property shall be in no less than  the same condition as originally received by Supplier, reasonable wear and tear excepted.  If InductEV so requests, Supplier shall grant InductEV access to Supplier's premises during  normal working hours for the purpose of inspecting or removing the InductEV Property. 

H. Supplier expressly waives and releases, and agrees not to file or otherwise assert or  prosecute or suffer to permit any statutory, equitable or other liens, including but not  limited to equitable or other liens, including but not limited to any molder liens, tool liens,  builder liens and the like, that Supplier has or might have on or in connection with the  InductEV’s Property for all work, including but not limited to, designing, manufacturing,  improving, maintaining, servicing, using, assembling, fabricating or developing  InductEV’s Property. Supplier hereby agrees to indemnify, defend and hold harmless  InductEV from and against any loss, liabilities, costs, expenses, suits, actions, claims and  all other obligations and proceedings, including without limitation all attorney’s fees and  all other cost of litigation that are in any way related to releasing, terminating or otherwise  removing all such liens placed on the InductEV’s Property. Supplier will assign to  InductEV any claims Supplier has against third parties with respect to InductEV’s Property. 

I. Supplier acknowledges and agrees that: (i) InductEV may not be the manufacturer of the  InductEV’s Property nor the manufacturer’s agent nor a dealer therein; (ii) InductEV is  bailing the InductEV’s Property to Supplier for Supplier’s benefit; and (iii) Supplier has  inspected the InductEV’s Property and is satisfied that the InductEV’s Property is suitable and fit for its purposes; and (iv) InductEV HAS NOT MADE AND DOES NOT MAKE  ANY WARRANTY OR REPRESENTATION WHATSOEVER, EITHER EXPRESS OR  IMPLIED, AS TO THE FITNESS, CONDITION, MERCHANTABILITY, DESIGN OR  OPERATION OF THE InductEV’S PROPERTY OR ITS FITNESS FOR ANY  PARTICULAR PURPOSE. InductEV shall not be liable to Supplier for any loss, damage,  injury or expense of any kind or nature caused, directly or indirectly, by the InductEV’s  Property, including, without limitation, its use or maintenance, or its repair, service or  adjustment, or by any interruption of service or for any loss of business whatsoever or  howsoever caused, including, without limitation any anticipatory damages, loss of profits  or any other indirect, special or consequential damages. Supplier shall assume all risk of  death or injury to persons or damage to property arising from use of the InductEV’s  Property. 

J. Supplier authorizes InductEV to file a UCC-1 financing statement or similar document  with the appropriate filing authority to give notice of InductEV’s ownership interest in the  InductEV’s Property. Failure to file a financing statement will not alter or amend  InductEV’s ownership rights to the InductEV’s Property Supplier shall provide InductEV,  upon InductEV’s request, with a written inventory of all InductEV’s Property. 

37. RIGHTS TO AUDIT, ENTRY, RECLAMATION, AND INSPECTION 

A. InductEV shall have the right at any reasonable time to examine all relevant documents,  records, materials, equipment, tooling and Goods in the possession or under the control of  Supplier relating to any of Supplier’s obligations under an Order. Supplier agrees to  reasonably cooperate in any such audit request by InductEV. 

B. InductEV shall have the right to enter Supplier’s facility during normal business hours or,  in the event of a Supplier shutdown, at reasonable times, to inspect the facility, Goods or  Services, materials and any property of InductEV covered by each Order. InductEV’s  inspection of the Goods or Services, whether during manufacture, prior to delivery or  within a reasonable time after delivery, shall not constitute acceptance of any work in  process or finished Goods or Services. 

C. Without the necessity of a court order, InductEV may enter upon Supplier’s premises and  remove property belonging to InductEV, including, without limitation, InductEV’s Property and other goods, inventory or Supplier’s Property that has been or is agreed to be  sold to InductEV under the Order.  

38. INDEMNIFICATION 

A. Supplier shall indemnify and hold harmless InductEV and its affiliated companies, their  directors, officers, employees, invitees, agents and customers (“Indemnitees”) from and  against all liability, demands, claims, losses, costs, actions, judgments, fines, penalties,  damages and expenses, including reasonable attorney’s fees (collectively, “Liabilities”)  incurred by Indemnitees by reason of or on account of any breach of this Order, warranty  claims, product recall claims, product liability claims, injuries to persons, including death,  or damage to property caused by Supplier, its employees, agents, subcontractors, or in any  way attributable to the performance of Supplier, its employees, agents, or invitees;  provided, however, that Supplier’s obligation to indemnify Indemnitees shall not apply to  any Liabilities solely arising from InductEV’s negligence. Supplier waives the application  of the doctrine of comparative negligence and other doctrines that may otherwise allocate the liability covered by Supplier’s indemnity. This indemnification obligation shall be in  addition to Supplier’s warranty obligations. 

B. Within a reasonable time of becoming aware of any actual or potential Liabilities,  InductEV shall notify Supplier. Supplier, at InductEV’s option and at Supplier’s expense,  will undertake defense of such actual or potential Liabilities through counsel approved by  InductEV. Provided, however, that Supplier shall first obtain authorization from InductEV before settlement is made of the actual or potential Liabilities if the terms of such settlement  could materially adversely affect InductEV, including any terms which admits the  existence of a defect in Goods and Services or a failure of InductEV to fully and faithfully  perform its obligations. In the alternative, InductEV may elect to undertake defense of  such Liabilities to the extent it is asserted against InductEV, and Supplier shall reimburse  InductEV on a monthly basis for all expenses, attorney fees, and other costs incurred by  InductEV. 

39. BATTLE OF THE FORMS NOT APPLICABLE 

The Parties have agreed and it is their intent that the battle of the forms as described in Section 2- 207 of the Uniform Commercial Code shall not apply to these Terms or to any invoice or acceptance  form from InductEV relating to these Terms. It is the Parties’ understanding that these Terms shall  exclusively control the relationship of the Parties, even in the event of any discrepancy between  any invoice or acceptance form sent by Supplier to InductEV. 

40. GOVERNING LAW AND JURISDICTION 

A. The terms of any Order (including these Terms) shall be governed by and construed in  accordance with the laws of the State of Pennsylvania. The applicability of the United  Nations Convention for the Sale of Goods (CISG) is hereby expressly excluded. Subject to  subparagraph 40.B below, Supplier consents to the exclusive jurisdiction of the appropriate  state court in Chester County, Pennsylvania, or, if original jurisdiction can be established,  of the federal court in the U.S. District Court for the Eastern District of Pennsylvania, if  such jurisdiction is selected by InductEV, for any legal or equitable action or proceeding  arising out of, or in connection with, each Order. Supplier expressly waives any and all  objections to venue in such courts and waives the right to a trial by jury of any claims or  defenses of Seller in connection with any litigation, directly or indirectly, arising out of or  relating to a Purchase Order and all transactions thereunder. Notwithstanding the  foregoing, InductEV may initiate an action in jurisdiction in which it deems appropriate  and in which jurisdiction exists. 

B. InductEV may, upon written notice to Supplier, require that any dispute be submitted to be  fully and finally determined through binding arbitration with the American Arbitration  Association (“AAA”), under the then current rules and procedures of the AAA. Unless  otherwise agreed by the parties, the Arbitration will be conducted in Pennsylvania, in  English, before a single arbitration. The decision of the arbitrator shall be final and shall  be binding on all parties and any party may apply for enforcement of any arbitral award in  the appropriate courts.  

41. LABOR DISPUTES 

Supplier shall notify InductEV in writing of any actual or potential labor dispute delaying or  threatening to delay timely performance of this Order. Supplier shall notify InductEV in writing six (6) months in advance of the expiration of any current labor contracts. Supplier shall deliver a  supply of finished Goods or Services at least thirty (30) days prior to the expiration of any such  labor contract, in quantities and for storage at sites designated by InductEV. 

42. DATA SECURITY 

For purposes of this Section, “InductEV Data” means all data, content, material, Confidential  Information and other information provided by InductEV to Supplier or otherwise transmitted to  Supplier for use in connection with this Order. Supplier will maintain and enforce information and  data privacy and security procedures with respect to its access, use and storage of all InductEV 

Data that: (a) are at least equal to industry standards taking into consideration the sensitivity of the  relevant InductEV Data, and the nature and scope of the Goods and Services to be provided; (b)  are in accordance with InductEV’s reasonable security requirements; (c) comply with all applicable  international, foreign, federal, state and local laws, statutes, rules, orders and regulations; and (d)  provide reasonably appropriate administrative, technical, and physical safeguards to protect against  accidental or unlawful destruction, loss, alteration or unauthorized disclosure, access or use of  InductEV Data. Without limiting the generality of the foregoing, Supplier will take all reasonable  measures to secure and defend its location and equipment against anyone who may seek, without  authorization, to modify or access Supplier systems or the information found therein without  consent. 

43. ELECTRONIC COMMUNICATIONS 

Supplier shall comply with any method of electronic communication specified by InductEV,  including requirements for electronic funds transfer, Order transmission, production Releases,  electronic signature, and communication. 

44. CONSULTING 

To the extent that this is an Order which includes services or consulting services, Supplier hereby  assigns to InductEV all rights, title and interest in and to any and all ideas, inventions,  improvements, materials, copyrightable material, drawings, documents or the like, conceived or made by Supplier as a result of or relating to work done or services performed for InductEV pursuant to this Order. Such assignment includes all proprietary rights appurtenant thereto, and  Supplier will execute any documents necessary to confirm such assignment.