SPEAR POWER SYSTEMS, INC.

STANDARD TERMS AND CONDITIONS FOR SALE OF PRODUCTS AND SERVICES (March 2022)

The following terms and conditions shall apply to the sale of Products and Services by Spear Power Systems, Inc. (“Seller”).

These terms and conditions (hereafter “Terms”) may be modified at the Estimate/Proposal/Quotation (hereafter “Proposal”) or Contract/Order level. In the incident of conflict, the Terms included at the Proposal or Contract/Order level will take precedence.

1. COMPLETE TERMS. Quotations provided by Spear Power Systems, Inc., a wholly owned subsidiary of Sensata Technologies (“Spear” or “Seller”) are governed by these Terms and Conditions for Sale of Products and Services (“Terms”). This is an offer conditioned upon the Buyer’s acceptance of these Terms, together with any attachments, exhibits, specifications, drawings, notes, instructions and other information, and incorporation of the same in the Buyer’s contract/purchase order (hereafter referred to as ‘contract’). Further, in the event of a conflict between these terms and conditions, and the Buyer’s contract/ purchase order terms, the conflict shall be resolved prior to the Seller’s acceptance of the contract.

2. DEFINITIONS.

“Background Intellectual Property” means all intellectual property rights owned or controlled by a Party prior to the Effective Date of the Contract. Intellectual property rights include, by way of example, patents, patent applications, know-how, trade secrets and other confidential information, copyrights and trademarks.

"Buyer" means the legal entity purchasing Products and/or Services pursuant to the Contract and these Standard Terms and Conditions of Sale.

“Confidential Information” shall mean all of Seller’s proprietary information, whether disclosed in oral, written, or electronic format, which includes but is not limited to, data, financial information, technical information, business strategies, designs, specifications, tests, reports, sample products or materials, manufacturing information, or any other information which Seller provides to Buyer.

"Contract" means either (1) a contract agreement signed by both parties, (2) a purchase order signed by Buyer and accepted by Seller in writing, (3) a phone order with follow-up email that conveys the order and acknowledges receipt and acceptance of these Terms and Conditions together with these Terms and Conditions, Seller's final quotation (which may be referred to by reference), and the agreed scope(s) of work.

"Contract Price" means the agreed price stated in the Contract for the sale of Products and Services, including adjustments (if any) in accordance with the terms of the Contract.

"Hazardous Materials" means any toxic or hazardous substance, hazardous material, dangerous or hazardous waste, dangerous good, radioactive material, petroleum or petroleum-derived products or by-products, or any other chemical, substance, material or emission, that is regulated, listed or controlled pursuant to any national, state, provincial, or local law, statute, ordinance, directive, regulation or other legal requirement of the United States ("U.S.") or the country of the Site.

"Insolvent/Bankrupt" means that a party is insolvent, makes an assignment for the benefit of its creditors, has a receiver or trustee appointed for it or any of its assets, or files or has filed against it a proceeding under any bankruptcy, insolvency dissolution or liquidation laws.

“Normal Wear and Tear” means the expected decline in condition of equipment due to its normal use for the purpose intended.

"Products" means the equipment, parts, materials, supplies, software, and other goods Seller has agreed to supply to Buyer under the Contract. All items are Commercial Items/Commercial Services as defined in Federal Acquisition Regulation, 2.101 and Part 12.

"Seller" means the legal entity providing Product or performing Services under the terms of the Contract.

"Services" means the services Seller has agreed to perform for Buyer under the terms of the Contract.

"Site" means the premises where Products are used or Services are performed, including Buyer’s premises, but not including Seller's premises from which it performs Services.

"Terms and Conditions" means these "Terms and Conditions for Sale of Products and Services," including any relevant addenda, together with any modifications or additional provisions specifically stated in Seller's final quotation or specifically agreed upon by Seller in writing.

3. SELLER’S CONVEYANCE OF PRODUCT.

Seller will convey the Product with good title, free from any lawful lien or encumbrance
Seller will supply Buyer with current safety data sheets (SDS) upon request

4. RESPONSIBLE PRACTICES. Buyer will:

be solely responsible for determining the suitability of Seller’s Product in Buyer’s applications prior to use;
familiarize itself and strictly comply with any Product literature, information and instructions Seller provides, including without limitation the SDS for each product;
adopt and follow safe and appropriate handling, storage, transportation, use, treatment and disposal practices with respect to the Products, and the containers thereof, including such special care and practices as Buyer’s use of the Products requires including, without limitation, all such practices required by federal, state and local government statutes, rules, regulations or ordinances;
provide appropriate warnings to, and instruct, its employees, independent contractors, agents and customers of the precautions and safe use practices required in connection with the unloading, handling, storage, use, treatment, transportation and disposal of the Product, and the containers thereof, including without limitation information contained in Seller’s most current SDS;
proper disposal of battery cells, battery systems and all other materials provided by the Seller;
comply with applicable health, safety, security and environmental laws; and
take action necessary to avoid dangers to persons, property or the environment.

The Buyer absolves the Seller of all liability related to the Buyer’s specification and use of the Products supplied by the Seller.

5. CONTRACT. Performance will commence upon Seller’s formal acceptance of Buyer’s contract. Performance will be in accordance with these Spear Terms and Conditions and those terms and conditions accepted in the Contract. At a minimum, the Contract shall identify the item(s) to be provided by Seller, unit quantities, part numbers, descriptions, applicable prices, method of shipment and requested delivery dates, as well as any flow-down terms that may be required by the U.S. Government. Contracts can be submitted via email, fax or mail. Email is the preferred media. Seller will acknowledge Contract and provide notice of conflicts within 3 business days of receipt.

6. PROPOSAL OF PRICE/TERMS. All written proposal of Product, price and terms (“Proposal”) made by the Seller will be valid for a period of ninety (90) calendar days after conveyance, unless otherwise stated in the accompanying proposal document. Product, prices and terms are not subject to verbal changes or other agreements unless approved in writing by the Seller. Buyer shall have no right to access Seller’s cost or pricing data, or other books or records.

7. CUSTOM-MADE PRODUCTS. Buyer will indemnify and hold Seller harmless for all patent infringement and other intellectual property claims asserted against Seller related solely to the specific features in the products manufactured to the Buyer’s design or specification, or for the features in the products specially designed by Seller to meet Buyer’s requirements. Additionally, Buyer cannot cancel or return any such custom-made products, save for returns done in accordance with the terms and conditions herein due to defective material or workmanship. For avoidance of doubt, Seller will indemnify and hold Buyer harmless for all patent infringement and other intellectual property claims asserted against Buyer related to Seller’s products.

8. TAXES, FEES AND DUTIES.

8.1. Products are sold as FOB Origin/EXWORKS Seller’s facility unless otherwise indicated in the Proposal. With that, Buyer is responsible for all applicable export/import taxes, fees and duties regardless of shipping means.

8.2. Prices do not include any taxes, including importation or customs taxes, now or hereafter enacted, applicable to the Goods sold under any applicable Contract. Taxes will be added by the Seller to the sales price where Seller’s invoices the same to comply with law and will be paid by Buyer unless Buyer provides the Seller with a proper tax exemption certificate. Notwithstanding anything else in the Contract, in the event a government entity imposes Tariffs, duties or taxes on the Goods which were not contemplated by the Seller, then the Seller reserves the right at its sole discretion to pass such additional costs to Buyer.

9. ACCEPTANCE OF GOODS. Goods shall be deemed accepted by any of the following actions of the Buyer: (1) the absence of a particularized rejection of the Product after a reasonable opportunity to inspect the Product; (ii) where Buyer does any act inconsistent with Seller’s ownership of the Product; (iii) where Buyer has expressly accepted or paid for the Product; or (iv) where Buyer has accepted part of the Product, the acceptance is an acceptance of all the Goods. In the absence of the foregoing, Product shall be deemed accepted by Buyer thirty (30) days following delivery of the Product to Buyer.

10. TERMS OF PAYMENT.

10.1. Terms of payment shall be net thirty (30) days from date of invoice. Where Seller has extended credit to Buyer, Seller reserves the right to modify the amount of credit or terms of payment, or revoke Buyer’s credit at any time. If the Products are delivered in installments, Buyer shall pay separately for each installment. Payment shall be made for the Products without regard to whether Buyer has made or may make any inspection of the Products. If shipments are delayed by Buyer beyond the agreed upon delivery date, payments are due thirty (30) days after the previously agreed to delivery date. Any Products held beyond the agreed to delivery date by Seller at the request of Buyer, shall be held at Buyer’s risk of loss and expense.

10.2. Payment shall be rendered upon Buyer’s receipt of products/milestone payment conditions identified in the Order. If Buyer fails to pay any sum owed hereunder when due, interest shall accrue to Seller’s credit on such sum at the rate of 1 ½% compounded per month, or the highest rate allow by law, whichever is lower. If Seller, in its sole discretion, finds it necessary to employ an attorney and/or collection agent to collect any past due sum owed hereunder, it may collect, in addition to other sum owed hereunder, all applicable attorneys/agent’s fees and costs.

10.3. Credit cards accepted by Seller are MasterCard, Visa and American Express. A 3% processing charge will be added to the balance due for credit card transactions. COD orders will not be permitted.

10.4. Seller is not required to commence or continue its performance unless and until any required payment security is received, operative and in effect and all applicable Milestone/Progress Payments have been received. For each day of delay in receiving Milestone/Progress Payments or acceptable payment security, Seller shall be entitled to a matching extension of the schedule.

10.5. If at any time Seller reasonably determines that Buyer's financial condition or payment history does not justify continuation of Seller's performance, Seller shall be entitled to “make whole” payment or otherwise restructure payments, request additional forms of payment security, suspend its performance or terminate the Contract.

11. CHANGES. Each party may at any time propose changes in the schedule or scope of the contract. Seller is not obligated to proceed with any change until both parties agree upon such change to the contract in writing. Contract change shall describe the changes in scope and schedule, and the resulting changes in price, delivery and other provisions, terms and conditions, as agreed to.

12. CANCELLATION. Buyer may cancel/terminate an order for the convenience of the Buyer. Seller shall, to the extent possible, immediately stop work once a cancellation/termination notice has been received. Buyer shall pay Seller for any work in progress and for all materials and supplies ordered, plus associated indirect costs and profit. In the event a Termination Liability Schedule is included in the contract, the terms of the Termination Liability will prevail.

13. INSPECTION. Buyer shall promptly, and in any event prior to use, inspect Product for any damage to packaging, shortage or non-conformance in the provided Product. All claims for damage to packaging, shortage or non-conformance which could reasonably be discoverable in the course of such investigation shall be waived unless Buyer notifies Seller in accordance with Article 25.

14. INDEMNITY. Each Party shall indemnify and hold the other Party harmless for all claims, damages and related costs, including reasonable legal fees and costs, arising out of the Party’s noncompliance with any of its commitments under these Terms

15. FORCE MAJEURE / EXCUSED PERFORMANCE.

15.1. Performance is excused when:

15.1.1. There is any contingency beyond the reasonable control of the Seller, including war or hostilities, acts of God, accident, fire, explosion, public protest, breakage of equipment, pandemic, acts of terrorism, activity of a governmental authority (including without limitation the passage of legislation or the failure to grant an export license), shortages of labor or labor difficulties, shortages of materials which interferes with Seller’s production, supply, transportation or consumption practice; or

15.1.2. Seller is unable to obtain raw materials, power or energy on terms Seller deems commercially acceptable; or,

15.1.3. Seller is unable to arrange for transportation on terms Seller deems commercially acceptable.

15.2. During times when performance is excused, all quantities of affected Product/Services set forth in Buyer’s contract will be eliminated without liability and Seller will allocate its supplies of materials and product among their various uses in any manner that is fair and reasonable.

15.3. Seller will not be obligated to obtain materials, intermediates or product from other sources or to allocate materials, intermediates or product from Seller's internal use.

15.4. The foregoing provision shall in no event relieve Buyer of its obligation to timely pay in full a product invoice.

16. TITLE, DELIVERY AND RISK OF LOSS.

16.1. All shipments of Goods shall be delivered Ex Works (EXW) Seller’s plant, unless otherwise provided in the Contract. Title, risk of loss, and damage to Goods shall pass to Buyer upon Seller’s delivery of the Goods to Seller’s dock, and any loss or damage thereafter shall not relieve Buyer from any obligation hereunder.

16.2. Buyer shall be liable for costs of insurance and transportation and for all import duties, taxes and any other expenses incurred, or licenses or clearance required at port of entry and destination. Seller may deliver Goods in installments. Shipping dates are approximate only. Seller shall not be liable for any loss or expense, whether by way of contract or tort, (consequential or otherwise) incurred by Buyer if Seller fails to meet the specified estimated delivery schedule because of unavoidable delays in production or any other delays.

17. RETURNS. No product may be returned without a Return Material Authorization (RMA) signed by Seller. Returned products must show the RMA number and the RMA number must be included on the bill of lading.

18. CHOICE OF LAW. This Contract will be governed by Delaware law without reference to its principles of conflict of laws. Additionally, Seller and Buyer hereby submit to the exclusive jurisdiction, for any lawsuit arising out this Contract, in any State or Federal court in the state of Delaware, USA.

19. EXPORTS CONTROL. Both parties agree to obtain any necessary export license or other documentation prior to the exportation or re-exportation of any product, technical data, software or software source code covered under these Standard Terms and Conditions of Sale and any applicable Contract, or any direct product of such technical data, software or software source. Accordingly, neither party shall sell, export, re-export, transfer, divert or otherwise dispose of any such product, technical data, software or software source code directly or indirectly to any person, firm, entity, country or countries prohibited by U.S. or applicable non-U.S. laws. Each party shall secure, at its own expense, such licenses and export and import documents as are necessary for each respective party to fulfill its obligations under these Standard Terms and Conditions of Sale and any applicable Contract.

20. ASSIGNMENT. The rights and obligations under these Standard Terms and Conditions of Sale or under any applicable Contract shall not be assigned or transferred by the Buyer without the prior written consent of the Seller. Any assignment or attempted assignment, whether by voluntary act or operation of law, shall be null and void, unless it is approved in writing by the Seller.

21. LEGAL COMPLIANCE. Buyer, at all times, shall comply with all applicable federal, state and local laws and regulations, as well as laws and regulations of the country/providence/location the Product is provided to.

22. WARRANTY.

THE FOLLOWING STANDARD WARRANTIES ARE IN LIEU OF ANY AND ALL OTHER WARRANTIES WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SELLER’S SOLE AND EXCLUSIVE LIABILITY FOR ANY BREACH OF WARRANTY SHALL BE (AT SELLER’S OPTION) TO REPAIR OR REPLACE THE GOODS, OR REFUND OF THE PURCHASE PRICE OF GOODS PAID BY BUYER.

22.1. Seller warrants to Buyer for the Warranty Periods that Products shall: 1) be free from defects in workmanship and materials; 2) conform to Seller’s written specifications and drawings; and (3) that at the time of delivery, Seller has title to the Products free and clear of any and all liens and encumbrances (the “Warranty”). This warranty may be modified as indicated in the terms of the contract. In the event of a conflict between this Article 21 and the terms of a contract, the terms of the contract shall prevail.

22.2. Warranty Period. The Warranty for Products shall expire one (1) year from date of delivery to the Buyer’s site identified in the contract. The warranty for Services shall expire one (1) year after performance of the Service.

22.3. The Warranty and Warranty Periods as hereinabove set forth shall not be enlarged, diminished or affected by, and no obligation or liability shall arise or grow out of Seller’s rendering of technical advice or service in connection with Buyer’s order of the Products subject to these Standard Terms and Conditions of Sale. If the Products furnished by Seller fail to conform to the Warranty as set forth above, Seller’s sole and exclusive liability shall be (at Seller’s option) to repair, replace or credit Buyer’s account for any such Products which are returned by Buyer during the applicable Warranty Period, provided that (i) Seller is promptly notified in writing upon discovery by Buyer that such Products failed to conform to the Warranty, with a detailed explanation of any alleged nonconformity, (ii) such Products are returned, at Buyer’s expense to Seller, F.O.B. Seller’s plant, and (iii) Seller’s examination of such Products shall disclose to Seller’s satisfaction that such alleged nonconformities actually exist and were not caused by accident, misuse, neglect, alteration, improper installation, unauthorized repair, improper testing or by any other means beyond the control of Seller. If such Products are determined, in Seller’s sole discretion, to be nonconforming, Seller shall reimburse Buyer for the transportation charges paid by Buyer for the return of said Products. If Seller elects to repair or replace such Products, Seller shall have a commercially reasonable time to make such repairs or replace such Products. If Seller, in its sole discretion, determines that the alleged nonconformity does not fall within the Warranty as set forth above, Buyer shall reimburse Seller for all cost associated with Seller’s inspection of the Products.

22.4. Buyer shall cooperate in Seller’s exploration of the fault by providing details (pictures, notes, etc.) of the deficient Product. Warranty repair, replacement or re-performance by Seller shall not extend or renew the applicable warranty period. Buyer shall obtain Seller's agreement on the specifications of any tests it plans to conduct to determine whether a non-conformance exists.

22.5. Buyer shall make the Product available to the Seller (including removal and replacement of systems, structures or other parts of Buyer's facility), de-installation, decontamination, re-installation of the Product.

22.6. The warranties and remedies are conditioned upon (a) proper storage, installation, use, operation, and maintenance of Products, (b) Buyer keeping accurate and complete records of operation, maintenance and storage during the warranty period and providing Seller access to those records, and (c) modification or repair of Products or Services only as authorized by Seller in writing. Failure to meet any such conditions renders the warranty null and void. Seller is not responsible for normal wear and tear.

22.7. This Article 21 provides the exclusive remedies for all claims based on failure of or defect in Products or Services, regardless of when the failure or defect arises, and whether a claim, however described, is based on contract, warranty, indemnity, tort/extra-contractual liability (including negligence), strict liability or otherwise. The warranties provided in this Article 21 are exclusive and are in lieu of all other warranties, conditions and guarantees whether written, oral, implied or statutory. NO IMPLIED OR STATUTORY WARRANTY, OR WARRANTY OR CONDITION OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE APPLIES.

23. INDEMNITY. Buyer agrees to indemnify and hold Seller, its agents, contractors, consultants, employees, officers, directors, and its insurers harmless from all claims, losses, suits, judgments, awards, costs or expenses whether arising in tort or contract, including Attorney’s fees, expenses and costs, arising out of the (i) application of Products to Buyer’s designs and/or products, or Seller’s assistance in the application of Products, (ii) negligent acts or omissions of Buyer or its employees, or (iii) Buyer’s breach of this Agreement.

24. LIMITATION OF LIABILITIES.

Notwithstanding anything to the contrary contained in the Contract or any attachments thereto, Seller’s total aggregate liability for any and all claims, costs, expenses, penalties, or damages arising under the Contract, shall in no event exceed the total purchase price of the Products giving rise to the claim, received by Seller under the applicable Contract (the “Limitation of Liability”). For the sake of clarity, any claims arising from or relating to the Warranty, shall be excluded from the Limitation of Liability and shall be subject to the terms and remedies set forth in Article 22. Warranty hereof. FURTHERMORE, IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, COLLATERAL, EXEMPLARY, INCIDENTAL, LOSS PROFITS, LOSS OF REVENUE, ECONOMIC LOSSES, OR CONSEQUENTIAL DAMAGES OR LOSSES OF ANY KIND, REGARDLESS OF WHETHER ARISING FROM BREACH OF CONTRACT, WARRANTY, TORT, OR OTHERWISE.

Buyer assumes all risks and liabilities resulting from the use of the Product referenced in the Contract.

25. NOTICE OF CLAIMS. Within 10 calendar days after customer learns, or should reasonably have learned, of any claim with respect to Product, customer will inform Seller in writing of the claim or the claim is waived. This Article shall not extend the warranty period in article 21.

26. INTELLECTUAL PROPERTY.

26.1. The sale of Goods to Buyer under the Agreement shall not grant, convey, or confer upon Buyer or any third party, a license or any right whether express or implied, to Sensata owned patents, trademarks, copyrights, know how, trade secrets, work product, proprietary information, or any other Sensata owned intellectual property.

26.2. Seller shall defend and indemnify Buyer against any claim by a non-affiliated third party (a "Claim") alleging that Products or Services furnished under this Contract infringe a patent in effect in the U.S., an EU member state, or any copyright or trademark registered in the US or EU member state or country, provided that Buyer (a) promptly notifies Seller in writing of the Claim, (b) makes no admission of liability and does not take any position adverse to Seller, (c) gives Seller sole authority to control defense and settlement of the Claim, and (d) provides Seller with full disclosure and reasonable assistance as required to defend the Claim. Seller will reimburse Buyer or Customer for out-of-pocket expenses related to reasonable assistance as required to defend the Claim.

26.3. Seller shall have no obligation or liability with respect to any Claim based upon(a) Products or Services that have been modified, or revised, (b) the combination of any Products or Services with other products or services when such combination is a basis of the alleged infringement, (c) failure of Buyer to implement any update provided by Seller that would have prevented the Claim, (d) unauthorized use of Products or Services, or (e) Products or Services made or performed to Buyer's specifications. This paragraph does not relieve Seller of responsibility to defend and indemnify Buyer for any portion in the Claim that is related to Seller’s non-modified or non-revised Products or Services.

26.4. Should any Product or Service, or any portion thereof, become the subject of a Claim, Seller may at its option (a) procure for Buyer the right to continue using the Product or Service, or applicable portion thereof, (b) modify or replace it in whole or in part to make it non-infringing, or (c) failing (a) or (b), take back infringing Products or Services and refund the price received by Seller attributable to the infringing Products or Services.

26.5. Each party shall retain ownership of all Confidential Information and intellectual property it had prior to the Contract. All new intellectual property conceived or created by Seller in the performance of this Contract, whether alone or with any contribution from Buyer, that is related to the Seller’s background intellectual property, shall be owned exclusively by Seller. All new intellectual property conceived or created by Buyer in the performance of this Contract, whether alone or with any contribution from Seller, that is related to the Buyer’s background intellectual property, shall be owned exclusively by Buyer. Seller and Buyer agrees to deliver assignment documentation as necessary to achieve those results. Buyer’s background intellectual property shall be specifically identified in the Contract.

27. CONFIDENTIAL INFORMATION. Buyer shall not disclose Confidential Information to any third parties unless Buyer receives Seller’s express written consent to the contrary. Buyer shall use Confidential Information solely for purposes related to the applicable Agreement and for the mutual benefit of the parties. Buyer may only disclose Confidential Information to those employees, directors, or officers of Buyer who have a need to know the Confidential Information for purposes relating to the applicable Agreement. Such employees of Buyer shall be obligated to execute an agreement that requires such person to treat and protect Confidential Information in a manner that is consistent with this provision. Obligations under this provision shall continue until such Confidential Information is publicly known and available through no act or omission of Buyer. Upon termination or expiration of any Agreement subject to these Standard Terms and Conditions of Sale, or upon request of Seller, Buyer shall destroy or return all Confidential Information to Seller.

28. SELLER TERMINATION AND CANCELLATION. Seller may at any time and upon written notice to Buyer, terminate all or part of the Agreement for its convenience, without any liability whatsoever to Seller. Buyer shall be liable for all Goods delivered to Buyer prior to the termination of the Contract.

29. NON-WAIVER OF DEFAULT AND COLLECTION RIGHTS. In the event of any default by Buyer, Seller may invoke any remedy provided by law or by the terms herein stated and may decline to make further shipments. If Seller elects to continue to make shipments, Seller’s actions shall not constitute a waiver of any default by Buyer or in any way affect Seller’s legal remedies for any such default. In the event Seller resorts to a third party or to litigation in order to collect amounts due Seller, Buyer agrees to pay costs of collection for amount owed to Seller, including, but not limited to, attorney’s fees, court costs, and interest in the amount of 1% per month (12% per annum) or the maximum amount allowed by applicable law, whichever is greater, from the date the amount is due.

30. RELEASE OF INFORMATION. Buyer shall in no event, without the prior written consent of Seller, publicly announce or otherwise disclose the existence of any Agreement or any relationship between Buyer and Seller or release any publicity regarding the same. This provision shall survive the expiration, termination or cancellation of any applicable Agreement.

31. US GOVERNMENT CONTRACTS

31.1. This Article 30 applies only if the Contract is for the direct or indirect sale to any agency of the U.S. government and/or is funded in whole or in part by any agency of the U.S. government.

31.2. Seller acknowledges that Buyer has the obligation to flow down the specific FAR paragraphs from the government contract. Seller shall be responsible solely for compliance with terms and conditions flowed down and accepted by the Seller. In the event that Seller has concerns regarding the clauses being flowed down, Seller shall notify the Buyer of its concern and resolve prior to acceptance of the Contract.

31.3. Buyer agrees that all Products and Services provided by Seller meet the definition of "commercial-off-the-shelf" ("COTS") or "commercial item" as those terms are defined in Federal Acquisition Regulation ("FAR") 2.101 and Part 12. To the extent the Buy American Act, Trade Agreements Act, or other domestic preference requirements are applicable to this Contract, the country of origin of Products is unknown unless otherwise specifically stated by Seller in this Contract. Buyer agrees any Services offered by Seller are exempt from the Service Contract Act of 1965 (FAR 52.222-41). Buyer represents and agrees that this Contract is not funded in whole or in part by American Recovery Reinvestment Act funds unless otherwise specifically stated in the Contract. The version of any applicable FAR clause listed in this Article 25 shall be the one in effect on the effective date of this Contract.

31.4. If Buyer is an agency of the U.S. Government, then as permitted by FAR 12.302, Buyer agrees that all paragraphs of FAR 52.212-4 (except those listed in 12.302(b)) are replaced with these Terms and Conditions. Buyer further agrees the subparagraphs of FAR 52.212-5 apply only to the extent applicable for sale of COTS and/or commercial items and as appropriate for the Contract Price.

31.5. If Buyer is procuring the Products or Services as a contractor, or subcontractor at any tier, on behalf of any agency of the U.S. Government, then Buyer agrees that FAR 52.212-5(e) or 52.244-6 (whichever is applicable) applies only to the extent applicable for sale of COTS and/or commercial items and as appropriate for the Contract Price.

32. VALIDITY. Any failure of Seller to enforce at any time, or for any period of time, any of the provisions set forth herein, shall not constitute a waiver of such provisions or in any way affect the validity of these Standard Terms and Conditions of Sale.

33. COMPLIANCE WITH ANTI-CORRUPTION AND ANTI-BRIBERY LAWS

33.1. Buyer represents and warrants to Seller that: Buyer, and to its best knowledge, its partners, officers, directors, employees, agents, and anyone acting on its behalf (collectively, the “Representatives”) are in compliance with all applicable anti-bribery and anti-corruption laws, including the US Foreign Corrupt Practices Act and the UK Bribery Act 2010 (collectively, the “Anti-Bribery Laws”).

33.2. Neither Buyer, nor to its best knowledge, any of its Representatives has, directly or indirectly, offered, paid, promised, or authorized the giving of money or anything of value to any:

Government Official;
person or entity; or
other person or entity while knowing or having reason to believe that some portion or all of the payment or thing of value will be offered, given, or promised, directly or indirectly, to a Government Official or another person or entity; for the purpose of:
- influencing any act or decision of such Government Official or such person or entity in his/her or its official capacity, including a decision to do, omit, or fail to do any act in violation of his/her or its lawful duties or proper performance of functions; or
- inducing such Government Official or such person or entity to use his/her or its influence or position with any Government Entity or other person or entity to influence any act or decision; in order to obtain or retain business for, direct business to, or secure an improper advantage for Seller or Buyer.

33.3 Neither Buyer, nor to its best knowledge, any of its Representatives has a personal, business, or other relationship or association with any Government Official or Close Family Member of any Government Official who may have responsibility for or oversight of any business activities of Buyer, or any of its Subsidiaries, other than any relationships or associations that have been disclosed in writing to Seller

33.4 Neither Buyer, nor to its best knowledge, any of its Representatives is or has been the subject of any investigation, inquiry, or enforcement proceeding by any court, governmental, administrative, or regulatory body, or customer regarding any violation or alleged violation of any Anti-Bribery Laws.

33.5 Definitions

“Close Family Member” means (i) the individual’s spouse; (ii) the individual’s and the spouse’s grandparents, parents, siblings, children, nieces, nephews, aunts, uncles, and first cousins; (iii) the spouse of any persons listed in subcategories (i) and (ii); and (iv) any other person who shares the same household with the individual.
“Government Entity” means (i) any national, state, regional, or local government (including, in each case, any agency, department, or subdivision of such government); (ii) any political party; (iii) any entity or business that is owned or controlled by any of those bodies listed in subcategory (i) or (ii); or (iv) any international organization, such as the United Nations or the World Bank.
“Government Official” means (i) any director, officer, employee, agent, or representative (including anyone elected, nominated, or appointed to be a director, officer, employee, agent, or representative) of any Government Entity, or anyone otherwise acting in an official capacity on behalf of a Government Entity; (ii) any political party, political party official, or political party employee; (iii) any candidate for public or political office; (iv) any royal or ruling family member; or (v) any agent or representative of any of those persons listed in subcategories (i) through (iv).

34. COMPLIANCE WITH DATA PROTECTION. From time-to-time Seller may transfer data acquired from Buyer for the purpose of carrying out the performance of an Agreement with any member of its group (which means subsidiaries, ultimate holding company and subsidiaries worldwide). The data collected may be transferred to, and stored at, a destination outside the European Economic Area (“EEA”). It may also be processed by staff operating outside the EEA who work for Seller. By Buyer submitting data, Buyer agrees to this transfer, storing or processing. Seller will take reasonable steps necessary to ensure that Buyer’s data is treated securely and in accordance with the practices contained in Regulation (EU) 2016/679.

35. AFFIRMATIVE ACTION. Buyer and any of its subcontractors shall abide by the requirements of 41 CFR §§60-1.4(a), 60-300.5(a) and 60-741.5(a) as applicable. These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability.

36. SEVERABILITY OF TERMS. A finding that any phrase, clause or provision of these Standard Terms and Conditions of Sale or any applicable Agreement is invalid or unenforceable in any jurisdiction will not affect the validity or enforceability of any other phrase, clause or provision of these Standard Terms and Conditions of Sale.

37. MODIFICATION. No addition to, or modification of any provision herein shall be binding upon Seller unless made in writing and signed by a duly authorized representative of Seller.

38. ORDER OF PRECEDENCE. If there are any inconsistencies or conflicts between the Standard Terms and Conditions of Sale and the terms on any applicable Agreement, precedence shall be given to the Standard Terms and Conditions of Sale unless the parties agree in writing to the contrary