Purchase Order Terms and Conditions – Services

Purchase Order Terms and Conditions – Services

These purchase order terms and conditions (“POTC”) are agreed between the entity (“Customer”) that wishes to purchase services and NextLabs, Inc. (“NextLabs”). This POTC is effective upon Acceptance by NextLabs of a purchase order (“PO”) issued by Customer to NextLabs (“Effective Date”) and is incorporated into such PO by reference. Transactions performed under the PO will be conducted in accordance with and be subject to the terms and conditions of this POTC.

SECTION 1

DEFINITIONS

For purposes of this POTC, each capitalized term shall have the respective meaning set forth in this Section 1 unless this POTC expressly provides otherwise.

“Acceptance” means written acceptance or acknowledgment by NextLabs of Customer’s PO via email.

“PO” means a valid and properly executed purchase order issued by Customer which incorporates the applicable NextLabs quotation.

“Services” means work performed by NextLabs for Customer pursuant to a PO. The schedule for Services will be agreed upon by the parties, subject to availability of NextLabs personnel.

SECTION 2

FEES, PAYMENT AND TAXES

a. Professional Fees. The professional fees for Services shall be in US Dollars and are calculated on a per project basis and other applicable charges current when the Services are performed.

b. Payment Schedule. Unless otherwise expressly specified in the applicable PO, NextLabs will invoice the total PO amount upon Acceptance by NextLabs. Payments for all invoices are due within thirty days of the invoice date and are non-refundable. NextLabs may assess a late charge of 1.5% per month for any overdue payments.

c. Expenses. Travel and other out-of-pocket expenses will be billed by NextLabs to Customer at actual cost incurred, but NextLabs will limit such expenses to reasonable amounts.

d. Taxes. NextLabs’ rates and other charges do not include taxes. If withholding or deduction is required, Customer shall pay such additional amounts so that the net amount of Professional Fees received by NextLabs will equal the amount NextLabs would have received if withholding or deduction had not been imposed. If NextLabs is required to pay any federal, state or local taxes (such as sales, use, excise, added value and similar taxes and all customs, duties or governmental impositions) based on the Services provided under this POTC, the taxes shall be billed to and paid by Customer. This shall not apply, however, to taxes based on NextLabs’ net income, which shall be NextLabs’ responsibility.

SECTION 3

INFRINGEMENT INDEMNITY

a. Infringement Indemnity. Each party (“Provider”) will defend and indemnify the other party (“Recipient”) against a claim that any information, design, specification, instruction, software, data or material furnished by the Provider (“Material”) and used by the Recipient for the Services infringes a copyright or trade secret provided that: (a) the Recipient notifies the Provider in writing within 30 days of the claim; (b) the Provider has sole control of the defense and all related settlement negotiations; and (c) the Recipient provides the Provider with the assistance, information and authority reasonably necessary to perform the above, although reasonable out-of-pocket expenses incurred by the Recipient in providing such assistance will be reimbursed by the Provider. THIS SECTION 3 STATES THE PARTIES’ ENTIRE LIABILITY AND EXCLUSIVE REMEDY FOR INFRINGEMENT.

b. Exceptions. The Provider shall have no liability for any claim of infringement resulting from: (a) the Recipient’s use of a superseded or altered release of some or all of the Material if infringement would have been avoided by the use of a subsequent unaltered release of the Material which is provided to the Recipient; or (b) any information, design, specification, instruction, software, data or material not furnished by the Provider.

c. Options. In the event that some or all of the Material is held or is believed by the Provider to infringe, the Provider shall have the option, at its expense, (a) to modify the Material to be non-infringing; (b) to obtain for the Recipient a license to continue using the Material; or (c) to require return of the infringing Material and all rights thereto from the Recipient. If NextLabs is the Provider and such return materially affects Customer’s ability to meet its obligations under the relevant PO, then Customer may, at its option and upon 30 days prior written notice to NextLabs, terminate the PO and be entitled to recover the fees paid by Customer for that portion of the Material. If Customer is the Provider and such return materially affects NextLabs’ ability to meet its obligations under the relevant PO, then NextLabs may, at its option and upon 30 days prior written notice to Customer, terminate the PO and Customer shall pay NextLabs for the Services rendered through the date of termination on a “time and materials” or “percent of completion” basis, as applicable, in addition to any penalty fees indicated in the PO.

SECTION 4

WARRANTY, EXCLUSIVE REMEDY AND DISCLAIMER

a. Warranty. NextLabs will perform the Services in a professional manner conforming to generally accepted industry standards. Customer must report any deficiencies in the Services to NextLabs in writing within 30 days of performance of the Services to receive warranty remedies.

b. Exclusive Remedy. For any breach of the warranty set forth in Section 4(a), Customer’s sole remedy, and NextLabs’ entire liability, shall be the re-performance of the Services. If NextLabs is unable to re-perform the Services as warranted, Customer shall be entitled to recover the fees paid to NextLabs for the deficient Services.

c. Disclaimer. Other than the warranty set forth in Section 4(a), NextLabs makes no other warranties or representations, express or implied, by operation of law or otherwise, with respect to any Services supplied under this POTC. NextLabs expressly disclaims any warranty of non-infringement, merchantability, or fitness for a particular purpose.

SECTION 5

SOFTWARE LICENSE

a. License to Software. The Services provided under this POTC may be in support of Customer’s license to use computer software programs, owned or distributed by NextLabs, under a separate software license agreement. The software license agreement shall govern all use by Customer of such programs. Neither this POTC nor any PO includes the grant of any license or any other rights for such programs. Any Services acquired from NextLabs will be bid separately from any such program license, and Customer may acquire the Services or such program licenses without acquiring the other.

b. Code and Other Products. NextLabs will own any code, data, ideas, components, designs, utilities, templates, concepts, analysis, methods, techniques, algorithms, formulas, technical information, know-how, specifications reports and other products developed or invented by NextLabs in connection with providing NextLabs’ Services under this POTC (“Techniques and Component Elements”), and NextLabs shall retain all copyright, patent, and other intellectual property rights therein. Without limiting the rights it has retained, NextLabs shall have the right to create or develop derivative works of, or other works which may be similar to, the deliverables that NextLabs has developed or created through the use of the Techniques and Component Elements. However, Customer will have a royalty-free, non-exclusive right to use Services that are provided to Customer in conjunction with software provided by NextLabs under a separate software license agreement. NextLabs will not deliver any source code to Customer under this POTC. In no event shall Customer decompile, disassemble, reverse translate or otherwise derive source code from the Services or create any derivative works of the Services.

SECTION 6

TERM AND TERMINATION

a. Term. The term of this POTC will commence on the Effective Date and shall remain in effect until terminated in accordance with this POTC.

b. Termination for Convenience. Either party may terminate this POTC at any time by providing the other party with written notice. However, any PO outstanding at the time of termination shall continue to be governed by this POTC as if it had not been terminated.

c. Termination for Cause. A party may terminate a PO if the other party is in material breach of the PO and has not cured the breach within 30 days of written notice specifying the breach. Consent to extend the cure period shall not be unreasonably withheld, so long as the breaching party has commenced cure during the 30-day notice period and pursues cure of the breach in good faith.

d. Effect of Termination. Termination of this POTC and/or any PO shall not limit either party from pursuing any other remedies available to it, including injunctive relief, nor shall termination relieve Customer of its obligation to pay all charges that accrued prior to such termination, and any penalty fees as indicated in the applicable PO. The parties’ rights and obligations under Sections 2(b), (c) and (d), 3, and 7 shall survive termination of this POTC and/or any PO.

SECTION 7

GENERAL PROVISIONS

a. Confidential Information. The parties may provide to one another information that is confidential (“Confidential Information”). Confidential Information shall include the terms and pricing under this POTC and all information identified by the parties at the time of disclosure as confidential. Confidential Information shall not include information which: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on disclosure; (d) is independently developed by the other party; or (e) is disclosed by operation of law. The parties agree to hold each other’s Confidential Information in confidence while the Services are being performed and for a period of three years thereafter.

b. Limitation of Liability. Neither party will be liable to the other party for any indirect, special, incidental, or consequential damages (including lost profits) sustained or incurred in connection with this POTC, regardless of the form of action or legal or equitable theory and whether or not such damages are foreseeable. NextLabs’ liability for damages hereunder shall in no event exceed the amount of fees paid by Customer under the applicable PO. The provisions of this Section 7(b) allocate the risks under this POTC between NextLabs and Customer. NextLabs’ pricing reflects this allocation of risk and the limitation of liability specified herein.

c. Assignment and Subcontractors. Customer may not assign this POTC without NextLabs’ prior written consent, but NextLabs will not unreasonably withhold its consent. NextLabs may subcontract all or any portion of the work to be performed by it under this POTC but shall retain responsibility for the work subcontracted. This POTC shall inure to the benefit of, and shall be binding upon, both NextLabs and Customer, and their respective heirs, legal representatives and permitted assigns.

d. Relationship Between the Parties. NextLabs is an independent contractor, and nothing in this POTC shall be construed to create a partnership, joint venture, or agency relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as employment-related taxes. Each party will maintain appropriate worker’s compensation for its employees as well as general liability insurance.

e. NextLabs Employees. NextLabs will try to honor Customer’s requests regarding the assignment of NextLabs employees to Customer’s project, but NextLabs reserves exclusively the right to determine the assignment of NextLabs employees. Customer agrees, during the period of the Services and for one year thereafter, not to solicit any NextLabs employee or contractor for employment directly or indirectly that was involved in providing the Services.

f. Cooperation. Customer acknowledges that the timely provision of and access to office accommodations, facilities, equipment, assistance, cooperation, complete and accurate information and data from its officers, agents and employees, and suitably configured computer products are essential to performance of any Services, and that NextLabs’ ability to complete any Services may be dependent upon these things. If the relevant requirements, project plans, schedule, specifications, scope, design, software, hardware, or system environment or architecture are changed by Customer or any other person, NextLabs shall not be responsible for the change unless Customer and NextLabs specifically consent to the change, scheduling and additional charges, if any, in writing.

g. Force Majeure. If either party is prevented from performing any portion of the POTC by causes beyond its control, including, without limitation, labor disputes, civil commotion, war, governmental regulations or controls, casualty, inability to obtain materials or services or acts of God, such defaulting party will be excused from performance for the period of the delay and for a reasonable time thereafter.

h. Governing Law. This POTC is entered into in the State of California, U.S.A., and this POTC shall be governed by and construed in accordance with the laws of the State of California, U.S.A., without reference to its conflicts of law provisions. Any dispute regarding this POTC shall be subject to the exclusive jurisdiction of the California state courts in and for San Mateo County, California (or, if there is exclusive federal jurisdiction, the United States District Court for the Northern District of California), and the parties agree to submit to the personal and exclusive jurisdiction and venue of these courts.

i. Waiver. The waiver by either party of a breach of or a default under any provision of this POTC, shall not be construed as a waiver of any subsequent breach of the same or any other provision of the POTC, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.

j. Notice. Unless otherwise agreed to by the parties, all notices required under this POTC will be deemed effective when received and made in writing by either (i) registered mail or certified mail, return receipt requested, (ii) overnight mail or express courier, in each case addressed and sent to the address indicated on the Cover Sheet and to the attention of the party executing the POTC or that person’s successor, or (iii) by telephone facsimile transfer appropriately directed to the attention of the party executing the POTC or that person’s successor.

k. Severability. If any provision of this POTC is held to be invalid or unenforceable, all other provisions of this POTC will remain in force.

l. Export Administration. Each party agrees to comply with all relevant export laws and regulations of the United States to assure that neither any software deliverable, if any, nor any direct product thereof is (a) exported, directly or indirectly, in violation of the export laws, or (b) used for any purposes prohibited by the export laws, including without limitation, nuclear, chemical or biological weapons proliferation.

m. Entire POTC. This POTC, upon Acceptance of the PO by NextLabs, constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior or contemporaneous proposals or agreements whether oral or written, and all communications between the parties relating to the subject matter of this POTC and all past courses of dealing or industry custom. It is expressly agreed that any conflicting terms and conditions of a Customer purchase order shall be superseded by the terms and conditions of this POTC. This POTC will not be supplemented or modified by any course of dealing in usage of trade. No amendment or modification of any provision of this POTC shall be effective unless in writing and signed by a duly authorized signatory of NextLabs and Customer.