Except for the licenses expressly granted in this Section 9(b), no party acquires any right, title or interest in the other party’s Background IP. Vendor hereby grants to Buyer a worldwide, irrevocable, non-exclusive, perpetual, paid-up and royalty free license for any Products or deliverables provided as part of the Services that include software or other intellectual property, including any Vendor Background IP incorporated therein, for Buyer’s business purposes. Vendor assigns and passes through to Buyer all of the third-party manufacturers’ and licensors’ warranties and indemnities for the Products and any such deliverables.

10.Warranties.

(a)General Warranty. Vendor represents and warrants to Buyer that: (i) it has full rights and authority to enter into and perform according to the Purchase Order, and its performance hereunder will not violate any agreement or obligation between it and any third party; (ii) the Products and the Services will conform to the description and applicable requirements, drawings, manufacturing data, data sheets, and standards stated or referenced in the Purchase Order and the applicable Specifications; (iii) it will perform the Services under the Purchase Order with the degree of high professional skill and sound practice and judgment which is normally exercised by recognized professionals with respect to services of a similar nature in accordance with generally recognized industry standards; (iv) neither the Products nor any tangible or intangible items delivered as a result of the Services do or will infringe or misappropriate any third party’s patent or other intellectual property rights; (v) neither the Products nor any tangible or intangible items delivered as a result of the Services do or will contain any virus or other contaminant, or disabling devices including, but not limited to, codes, commands or instructions that may be used to access, alter, delete, damage or disable the Items, or any hardware, software, devices, networks, systems, or other property of Buyer or its customers; and (vi) it has the rights and all necessary licenses and consents to deliver the Products and Services (including any associated tangible or intangible items provided in connection therewith), as contemplated herein.

(b)Product Warranty. Without limiting the generality of Section 10(a), Vendor warrants that for the Warranty Period (as defined herein), all Products will: (i) be free from any defects in workmanship, material and design; (ii) conform to the applicable Specifications; (iii) be fit for their intended purpose and operate as intended; (iv) be merchantable; and (v) be free and clear of all liens, security interests or other encumbrances (“Product Warranty”). Unless otherwise defined in the Purchase Order, the “Warranty Period” for Products shall be a period of one (1) year from the Delivery Date or installation date of such Products, whichever occurs later. These warranties survive any delivery, inspection, acceptance or payment of or for the Products by Buyer.

 If, during the Warranty Period, Buyer gives Vendor notice of noncompliance pursuant to this Section 10(b), Vendor shall, at its own cost and expense, and at Buyer’s option, promptly replace or repair the defective or nonconforming Products (or parts thereof) to Vendorand the delivery of repaired or replacement Products (or parts thereof) to Buyer. Buyer will have no liability for any Products (or parts thereof) returned hereunder, and Vendor will bear all liability, responsibility, and expenses for them. If Vendor fails to correct defects in or replace nonconforming Products (or parts thereof) promptly, Buyer, after reasonable notice to Vendor, may make such corrections or replace such Products (or parts thereof) and charge Vendor for the cost incurred.

(c) Compliance Warranties. (i) Vendor represents, warrants, and agrees that it has complied, and will comply, with all laws, rules, regulations, and ordinances, proclamations, demands, directives, executive orders, or other requirements of the municipal, state, and federal governments and all subdivisions thereof which now govern or may hereafter govern the manufacture, sale, or delivery of the Products or performance of the Services contemplated by the Purchase Order, including, but not limited to environmental, health and safety laws, including laws restricting heavy metal content; employment and labor laws, including laws regarding child labor and human trafficking (and all reporting requirements of employment and labor laws, which reports Vendor will make available to Buyer on request); the U.S. Export Administration Regulations, the U.S. Department of Treasury’s Office of Foreign Assets Control sanctions programs, and end-user, end-use and destination restrictions by the U.S. and other governments as they apply to the Products and Services ordered hereunder; and any other applicable laws.

(ii) Vendor shall at all times comply with Buyer’s quality assurance requirements and shall remain responsible for quality assurance with respect to all Products and Services. Without limiting the foregoing, to the extent the Purchase Order relates to the purchase of any food, drug, cosmetic, medical device, or pesticide, or substance the intended use of which results or may reasonably be expected to result, directly or indirectly, in its becoming a component or otherwise affecting the characteristics of any food (including substances intended for use in producing, manufacturing, packing, processing, preparing, treating, packaging, transporting, or holding food), drug, cosmetic, medical device, or pesticide, Vendor hereby represents and warrants that: (i) the Products comprising each shipment made by Vendor to or on the order of Buyer, (a) are not adulterated or misbranded within the meaning of the Federal Food, Drug, and Cosmetic Act (the “FDCA”), and (b) do not contain an article that is prohibited, under the applicable provisions of the FDCA, from being introduced into interstate commerce; (ii) each chemical substance contained in the Products is on the inventory of chemical substances compiled and published by the Environmental Protection Agency (“EPA”) pursuant to the Toxic Substances Control Act (“TSCA”); (iii) the Products are in conformance with the requirements of all applicable laws and regulations including, but not limited to, the laws administered or issued by the Drug Enforcement Agency (e.g., the Controlled Substance Act), the U.S. Food and Drug Administration (“FDA”) (e.g., the FDCA and the Fair Packaging and Labeling Act), the Federal Insecticide, Fungicide, and Rodenticide Act, and all similar federal, state, or local codes, regulations, rules, and orders relevant to Buyer’s resale, re-packaging, manufacturing, or use of such Products; and (iv) it shall obtain all necessary approvals from the FDA, EPA,

Department of Agriculture and any similar governmental authorities of foreign jurisdictions with respect to the manufacture, sale, or delivery of the Products or performance of the Services contemplated hereunder.

The warranties set forth in this Section 10 are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer’s discovery of the noncompliance of the Products or Services with the foregoing warranties.

11. Limitation of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY LAW: (I) IN NO EVENT WILL BUYER’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS PURCHASE ORDER (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, MISREPRESENTATION, INFRINGEMENT OR OTHER CONTRACT OR TORT CLAIMS) EXCEED THE TOTAL FEES PAID BY BUYER TO VENDOR DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; AND (II) IN NO EVENT SHALL BUYER BE LIABLE FOR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS PURCHASE ORDER EVEN IF INFORMED OF THE POSSIBILITY THEREOF IN ADVANCE.

The Parties agree that the limitations of liability set forth in this Section 11 will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The Parties acknowledge that the prices have been set and these Terms and the Purchase Order have been entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.

12. Confidential Information.

(a) Confidentiality. Vendor shall not, without first obtaining the written consent of Buyer, in any manner disclose or publish the fact that Vendor has contracted to furnish Buyer the Products or Services herein ordered. In connection with these Terms or a Purchase Order, Buyer may disclose to Vendor, through observation or otherwise, Confidential Information (as defined below). During the term of these Terms and thereafter, until all such Confidential Information becomes publicly known or made generally available through no action or inaction of Vendor, Vendor (i) may not disclose Confidential Information to any third party without the prior written approval of Buyer; (ii) must restrict its use of Confidential Information to the intended purpose of the Purchase Order; and (iii) must limit dissemination of Confidential Information within its own organization to only those individuals who require disclosure for performance of their duties and who are bound to confidentiality obligations at least as protective as those contained herein. Vendor shall exercise the same degree of care for the Confidential Information of Buyer as it uses to protect its own confidential information, but in any event, not less than reasonable care. The phrase “Confidential Information” shall mean all information concerning Buyer unless specifically identified as “non-confidential,” including, but not limited to, all of Buyer’s confidential or proprietary information, trade secrets, data, know-how, formulas, designs, drawings, photographs, documentation, forms of software or electronic media, equipment, processes, ideas, methods, concepts, facilities, construction plans and specifications, research, development, and business and financial information. At Buyer’s request, all tangible Confidential Information possessed by Vendor, including, but not limited to, all copies, translations, interpretations and adaptations thereof must be returned immediately to Buyer. Notwithstanding the restrictions set forth above, if Vendor is required by law to disclose any Confidential Information, Vendor may make the required disclosure, provided that prior to making any such disclosure, Vendor shall provide Buyer with: (i) written notice of the proposed disclosure in order to provide Buyer with sufficient opportunity to seek a protective order or other similar order preventing or limiting the proposed disclosure; and (ii) reasonable assistance in seeking such protective order or other similar order.

(b) Security. Vendor represents and warrants that it has adequate and appropriate technical, physical, and organizational controls to ensure the confidentiality, privacy, security and integrity, availability and resilience of Buyer Confidential Information and to protect against unauthorized access to or use of Buyer Confidential Information (including, without limitation, where such information is transmitted over a network) that could result in the loss, corruption, destruction, unauthorized use, modification, or disclosure of or interference with Confidential Information, or the substantial harm or inconvenience to Buyer (each a “Security Incident”). Such technical and organizational controls shall also prevent, detect, respond and mitigate a Security Incident. Vendor shall have and maintain industry standard or better certifications and audits procedures. Vendor acknowledges and agrees that Buyer shall have the right to require additional reasonable protections related to the confidentiality, privacy and security of Confidential Information in connection with the Purchase Order or any renewal or amendment thereof, and Vendor shall agree to such additional reasonable protections as Buyer may reasonably require.

13. Termination.

(a) Term. Each Purchase Order shall commence upon Vendor’s acceptance of the Purchase Order and shall continue through Buyer’s acceptance of such Services or Products, as may be further specified in the Purchase Order. These Terms shall remain in effect for so long as any Purchase Order is in effect.

(b) Termination. (i) By Vendor. Vendor may terminate these Terms or any Purchase Order, in whole or in part, immediately upon notice to Buyer if: (i) Buyer materially breaches these Terms or the terms and conditions set forth in a Purchase Order, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach; or (ii) Buyer becomes insolvent or otherwise makes an assignment for the benefit of creditors, commits an act of bankruptcy or files or has filed against it a petition in bankruptcy or reorganization proceedings. (ii) By Buyer. In addition to Buyer’s termination rights set forth elsewhere herein, Buyer may terminate these Terms or any Purchase Order, in whole or in part, in its sole discretion: (i) upon fifteen (15) days prior written notice to Vendor for any reason; (ii) immediately upon written notice to Vendor if Vendor breaches these Terms or any Purchase Order; (iii) if reasonable grounds for insecurity arise with respect to Vendor’s performance and Vendor fails to furnish adequate assurances within five (5) days after written demand by Buyer for such assurance; or (iv) immediately upon written notice to Vendor if Vendor becomes insolvent or otherwise makes an assignment for the benefit of creditors, commits an act of bankruptcy or files or has filed against it a petition in bankruptcy or reorganization proceedings. During any notice period, Vendor shall cease to provide the cancelled Services or Products, as the case may be, to Buyer as soon as commercially practicable after receiving such notice.

(c) Effect of Termination/Expiration. Upon termination or expiration of these Terms or any Purchase Order: (i) Buyer shall be entitled to the ownership, possession, use and license of any and all work in process under any Purchase Order to which it is entitled pursuant to Section 9; (ii) Vendor shall invoice Buyer for all outstanding fees and expenses incurred for Services satisfactorily performed and/or Products delivered under each Purchase Order through and including the date of any such termination or expiration; and (iii) Vendor shall return all Confidential Information to Buyer, or destroy all Confidential Information and certify to Buyer its compliance with this obligation. In addition, the following Sections shall survive any termination or expiration of a Purchase Order or these Terms: 1, 6, 9-12, 13(c), and 14-23.

14. Insurance.

Vendor shall ensure that it has, and shall maintain in place for a period of time not less than two (2) years after the date of the last sale of Products or Services covered by the Purchase Order, adequate general liability insurance and as relevant, professional liability, product liability and/or other insurance and shall provide satisfactory evidence at Buyer’s request.

15. Indemnification.

(a) Indemnity. To the fullest extent permitted by applicable laws, Vendor hereby agrees to defend, indemnify, and hold harmless Buyer, its affiliates (and their respective directors, officers, employees, agents, successors and assigns) (each, an “Indemnified Party”) from and against any and all claims, liabilities of every kind, including liability based on contributory, vicarious, or any other doctrine of secondary liability, or character, (collectively, “Losses”) arising out of or relating to any and all claims, liabilities, liens, demands, obligations, actions, proceedings, suits, causes of action of every kind (regardless of whether or not such Losses are caused in part by a party indemnified hereunder) arising out of or related to: demands, damages, judgments, awards, settlements, expenses, or losses, including costs of litigation and reasonable attorneys’ fees, arising, directly or indirectly, from: (i) a breach by Vendor of the representations, warranties, covenants, and any other provisions set forth in these Terms or a Purchase Order Terms and Conditions, including, but not limited to, any confidentiality, privacy and/or security obligation stated in Section 12 and the obligations to comply with laws; (ii) any claim charging that Vendor’s provision or Buyer’s purchase or use of the Products or Services provided under these Terms or a Purchase Order constitutes misappropriation or infringement of any intellectual property rights or breach of a confidential relationship; (iii) injury to or death of any person or damage to any property resulting from and/or caused by Vendor or its personnel in connection with the Vendor’s performance or nonperformance of Vendor’s obligations under these Terms or a Purchase Order; or (iv) the negligence or willful misconduct of Vendor or its personnel. If the Products or Services, or the use of such Products or Services, are held to constitute an infringement or misappropriation and their sale or use is enjoined, Vendor shall, at Vendor’s expense and option, either procure for Buyer the right to continue to use such Products or Services, or replace the same with equivalent non-infringing Products or Services, or modify the same so they become equivalent non-infringing Products or Services; except that if the foregoing is not commercially practicable or upon request by Buyer, Vendor shall refund to Buyer all fees paid by Buyer under the applicable Purchase Order for such Products or Services and those Products or Services that are dependent thereon.

(b) Process. Vendor shall keep the applicable Indemnified Party fully informed concerning the status of any litigation, negotiations or settlements of any claim, demand or action for which the Indemnified Party seeks indemnification hereunder. The Indemnified Party shall be entitled, at its own expense, to participate in any such litigation, negotiations and settlements with counsel of its own choosing. Vendor shall not have the right to settle any claim without the prior written consent of the Indemnified Party. This Section 15 shall not be construed to limit or exclude any other claims or remedies at law or in equity that an Indemnified Party may assert.

16. Force Majeure. Neither party shall be responsible for its failure to perform due to causes beyond its reasonable control such as acts of God, fire, theft, war, riot, embargoes or acts of civil or military authorities. If delivery is to be delayed by such contingencies, Vendor shall immediately notify Buyer in writing and Buyer may either (i) extend time of performance, or (ii) cancel the uncompleted portion of the Purchase Order at no cost to Buyer.

17. Trademarks and Press Releases.

Vendor will not in any way use or reference Buyer’s name or any trademark, including without limitation, as part of Vendor’s company or business name or any domain name, or any trade dress of Buyer except with the prior written permission of Buyer, which may be withheld in Buyer’s sole and absolute discretion. No news release, advertisement, public announcement, denial or confirmation of same, of any kind regarding any part of the subject matter of the Purchase Order shall be made without the prior written approval of Buyer, which may be withheld in Buyer’s sole and absolute discretion.

18. Governing Law.

The Purchase Order, including, for the avoidance of doubt, these Terms and all exhibits and/or attachments hereto and thereto, will be governed by, and interpreted and enforced in accordance with, the laws of the State of California without reference to the principles of conflicts of laws. The parties expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods or any other international convention governing sales of goods.

19. Arbitration.

Any dispute or claim arising out of or in connection with a Purchase Order or these Terms will be finally settled by confidential binding arbitration, conducted in English, held in San Mateo County, California, in accordance with the rules of the American Arbitration Association by one arbitrator appointed in accordance with said rules. The arbitrator shall apply California law, without reference to rules of conflicts of law or rules of statutory arbitration, to the resolution of any dispute. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The decision of the arbitrator will be final and binding upon the parties, and may not be appealed. Notwithstanding the foregoing, the parties may apply to any court of competent jurisdiction for preliminary or interim equitable relief, or to compel arbitration in accordance with this paragraph, without breach of this arbitration provision. The fees and expenses of the arbitrator will be divided equally between the parties unless otherwise ordered by the arbitrator.

20. Assignment; Subcontracting.

Vendor shall not delegate any of its obligations hereunder and may not transfer or assign any right or interest under the Purchase Order, including these Terms, without Buyer’s prior written consent; any such attempted assignment or delegation will be void. Without limiting the generality of the foregoing, Vendor shall not subcontract any performance of the Services without Buyer’s prior written consent. Buyer may freely assign these Terms or any Purchase Order; provided that Buyer will provide Vendor with notice of any such assignment.

21. Records.

Vendor shall keep appropriate records (including in respect of ingredients, components and quality control of Products) for no less than five (5) years; or seven (7) years for financial information. Vendor shall at all times upon reasonable notice, allow Buyer to enter, access, inspect and audit all information, documentation and records related to the Products and Services.

22. Notices.

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

23.Miscellaneous.

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

The Purchase Order, including these Terms, is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the Purchase Order.

In the event of an inconsistency in the face of the Purchase Order, any statements of work/work orders or Specifications that are attached to and/or referenced in the Purchase Order, and these Terms, unless otherwise provided herein, the inconsistency will be resolved by giving precedence in the following order: (i) these Terms, (ii) the Purchase Order face sheet; (iii) the applicable statement of work/work order, and (iv) the applicable Specifications.

The parties have expressly required that the Purchase Order, and all documents and notices relating thereto, including these Terms, be drafted in English. If where Vendor is based the official language is not English, the parties may agree to append to these Terms a translation of the Terms in the local language. In the event of any conflict between the English and the local language version of these Terms (or part hereof), the parties agree that the English version shall prevail.

If any term or provision of these Terms or a Purchase Order is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of the Terms or Purchase Order, or invalidate or render unenforceable such term or provision in any other jurisdiction.

No waiver by Buyer of any of the provisions of these Terms or a Purchase Order is effective unless explicitly set forth in writing and signed by Buyer. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from these Terms or a Purchase Order operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

No change, modification, or revision to the Purchase Order, including these Terms, shall be effective unless in writing and signed by Buyer’s duly authorized purchasing representative or officer.

The Purchase Order may be executed in counterparts, including execution by facsimile, pdf, or other electronic transmission, which, when taken together, will be deemed to constitute one and the same agreement.