IRON OX, INC.
PURCHASE ORDER TERMS AND CONDITIONS

1. Applicability.
(a) These Purchase Order Terms and Conditions (“Terms”) govern any purchase order, statement or work, or similar ordering document (“Order”), between Iron Ox, Inc. (together with its subsidiaries, “Iron Ox”) and the supplier identified in the applicable Purchase Order (“Supplier”) for products specified in the Order (“Products”) as well as any deliverables or services specified in the Purchase Order (collectively, the “Work”). These Terms govern and are incorporated by reference into each Order between the parties. The Order does not constitute a firm offer within the meaning of Section 2205 of the California Commercial Code, and may be revoked at any time prior to acceptance. The Order, including any documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the Order, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the Order. The Order expressly limits Supplier’s acceptance to the terms of the Order. These Terms prevail over any terms or conditions contained in any other documentation and expressly exclude any of Supplier’s general terms and conditions of sale or any other terms issued by Supplier in connection with the Order. These Terms shall also apply to any orders made by Iron Ox from Supplier over the internet or by any other electronic means.
(b) These Terms apply to any repaired or replacement Products provided by Supplier hereunder.
(c) Iron Ox is not obligated to any requirements, minimum purchase or future purchase obligations under the Order.
(d) Iron Ox and Supplier may enter into one or more statements of work to provide additional detail including but not limited to specifications, timelines, milestones or other terms related to the Work (each a “SOW”). Each SOW must be signed by each of Iron Ox and Supplier.

2. Acceptance. Orders will be deemed to be accepted by Supplier upon: (a) Supplier’s affirmative acceptance of the Order, (b) Supplier’s failure to respond to the Order within five (5) business days after receipt thereof, or (c) commencement of performance or delivery pursuant to the Order.

3. Delivery Date. Supplier shall deliver the Products in the quantities and on the date(s) specified on the face of the Order or as otherwise agreed in writing by the parties (the “Delivery Date”). Timely delivery of the Products is of the essence. Supplier shall notify Iron Ox immediately of any circumstance which may delay timely performance of the Order, but such notice shall not excuse non-performance by Supplier nor affect Supplier’s liability. If necessary to meet the Delivery Date, Supplier shall ship Products by air freight or other expedient means acceptable to Iron Ox, and Supplier shall pay the cost of freight for such expedited shipment over the cost of the specified mode of transportation. If Supplier fails to deliver the Products in full on the Delivery Date, Iron Ox may terminate the Order immediately by providing written notice to Supplier and Supplier shall indemnify Iron Ox against any losses, claims, damages, and reasonable costs and expenses directly attributable to Supplier’s failure to deliver the Products on the Delivery Date. Iron Ox has the right to return any Products delivered prior to the Delivery Date at Supplier’s expense and Supplier shall redeliver such Products on the Delivery Date.

4. Quantity. If Supplier delivers more or less than the quantity of Products ordered, Iron Ox may reject all or any of the Products. Any such rejected Products shall be returned to Supplier at Supplier’s risk and expense. If Iron Ox does not reject the Products and instead accepts the delivery of Products at the increased or reduced quantity, the Price for the Products shall be adjusted on a pro-rata basis. Iron Ox may upon ten calendar days’ notice to Supplier, if prior to the date of shipment, request a change in the quantity of Products to be delivered under the Order, and Supplier shall comply with such changes.

5. Delivery Location. All Products shall be delivered to the address specified on the face of the Order (the “Delivery Location”) between 8:00 a.m. and 4:00 p.m. Monday through Friday (and not at any time on Saturdays, Sundays or holidays), or as otherwise instructed by Iron Ox.

6. Shipping Terms. Delivery shall be made DDP (Delivery Duty Paid) Iron Ox’s dock at the Delivery Location (in accordance with Incoterms 2010), unless otherwise specified on the face of the Order and Supplier will be responsible for arranging and related costs and charges for all necessary transportation, packaging, insurance, customs, duties, and export/import clearance and documentation (“Logistics”). Supplier shall give written notice of shipment to Iron Ox when the Products are delivered to a carrier for transportation. Supplier shall provide Iron Ox all shipping documents, including the commercial invoice, packing list, air waybill/bill of lading and any other documents necessary to release the Products to Iron Ox within five business days after Supplier delivers the Products to the transportation carrier. The Order number must appear on all shipping documents, shipping labels, bills of lading, air waybills, invoices, correspondence and any other documents pertaining to the Order. All Products shall be suitably classified to assure lowest transportation rates consistent with full protection against loss and damage in transit and to meet the carrier’s requirements.

7. Title, Risk of Loss and Insurance. Title passes to Iron Ox upon delivery of the Products to the Delivery Location. Supplier bears all risk of loss or damage to the Products until delivery of the Products to the Delivery Location. Supplier shall insure all shipments for the full value of the Products for the benefit of Iron Ox.

8. Packaging. All Products shall be packed for shipment according to Iron Ox’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Products are delivered in undamaged condition. Supplier must provide Iron Ox prior written notice if it requires Iron Ox to return any packaging material. Any return of such packaging material shall be made at Supplier’s expense.

9. Conduct of Personnel. While at any Iron Ox location, Supplier’s personnel, agents, and subcontractors shall comply with all reasonable requests, standard rules, and regulations of Iron Ox communicated to Supplier regarding personal and professional conduct, including without limitation any security, privacy, or food safety requirements, and shall otherwise conduct themselves in a businesslike manner.

10. Sub-Providers. Supplier may not subcontract any of its rights or obligations under the Order without Iron Ox’s prior written consent. If Iron Ox consents to the use of a subcontractor, Supplier will: (i) guarantee and will remain liable for the performance of all subcontracted obligations; (ii) indemnify Iron Ox for all damages and costs of any kind, subject to the limitations in Section 18 (General Indemnification), incurred by Iron Ox or any third party and caused by the acts and omissions of Supplier’s subcontractors and (iii) make all payments to its subcontractors. Supplier unconditionally hereby warrants, represents and covenants to Iron Ox that all subcontractors, suppliers, laborers and other providers that have supplied labor, materials and/or equipment to Supplier in connection with this Agreement either have been paid, or will have been timely paid, in full for such labor, materials and/or equipment. If Supplier fails to timely pay a subcontractor for work performed, Iron Ox will have the right, but not the obligation, to pay the subcontractor and offset any amount due to Supplier by any amount paid to the subcontractor. Supplier will defend, indemnify and hold Iron Ox harmless for all damages and costs of any kind, without limitation, incurred by Iron Ox and caused by Supplier’s failure to pay a subcontractor.

11. Inspection and Rejection of Nonconforming Products. Iron Ox has the right to inspect the Products on or after the Delivery Date. Iron Ox, at its sole option, may inspect all or a sample of the Products, and may reject all or any portion of the Products if it determines the Products are nonconforming or defective. Payment with respect to the Products shall not constitute acceptance. If Iron Ox rejects any portion of the Products, Iron Ox has the right to: (a) rescind the Order in its entirety; (b) accept the Products at a reasonable mutually agreed reduced price; or (c) reject the Products and require replacement of the rejected Products. If Iron Ox requires replacement of the Products, Supplier shall, at its expense, promptly replace the nonconforming Products and pay for all related expenses, including, but not limited to, storage, transportation charges for the return of the defective Products and the delivery of replacement Products. If Supplier fails to timely deliver replacement Products, Iron Ox may replace them with Products from a third party and charge Supplier the cost thereof and terminate the Order for cause pursuant to Section 23. Any inspection or other action by Iron Ox under this Section 11 shall not reduce or otherwise affect Supplier’s obligations under the Order, and Iron Ox shall have the right to conduct further inspections after Supplier has carried out its remedial actions.

12. Price. The price of the Products is the price stated in the Order (the “Price”). If no price is included in the Order, the Price shall be the price set out in Supplier’s published price list in force as of the date of the Order, unless otherwise agreed by the parties in writing. Unless otherwise specified on the face of the Order, the Price includes all packaging, transportation costs to the Delivery Location, insurance, customs duties, fees and applicable taxes, including, but not limited to, all sales, use or excise taxes; and Supplier shall be solely responsible for paying all such amounts. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Iron Ox. Supplier shall pay all required royalties and license fees and shall procure at its cost, as required, the appropriate proprietary rights, licenses, agreements, and permissions for Iron Ox to fully utilize the Work including equipment and materials, methods, processes, software, and systems.

14. Most Favored Pricing. Supplier represents and warrants that the price for the Products is the lowest price charged by Supplier to any of its external customers for similar volumes of similar Products. If Supplier charges any other customer a lower price, Supplier must apply that price to all Products under the Order. If Supplier fails to meet the lower price, Iron Ox, at its option, may terminate the Order without liability pursuant to Section 23.

15. Payment Terms. Supplier shall issue an invoice to Iron Ox on or any time after the completion of delivery and only in accordance with the Terms. Supplier must submit invoices by email to ap@ironox.com. Unless otherwise provided on the face of the Order, Iron Ox shall pay all properly invoiced and undisputed amounts due to Supplier within 30 days after Iron Ox’s receipt of such invoice Iron Ox shall have no obligation to pay any incorrect, incomplete or out of compliance invoice. Prior to any payment, Iron Ox may require Supplier to release all liens and claims in a form reasonably acceptable to Iron Ox. If a Purchase Order expressly requires Iron Ox to make any payments for Products before title to such Products pass to Iron Ox, then Supplier hereby grants a security interest in such Products to Iron Ox as security for Supplier’s obligations hereunder, and shall take all steps requested by Iron Ox to perfect such security interest.

16. Set-off. Without prejudice to any other right or remedy it may have, Iron Ox reserves the right to set off at any time any amount owing to it by Supplier against any amount payable by Iron Ox to Supplier, including but not limited to the following: (i) any defects or deficiencies in the Work; (ii) any unpermitted liens or other encumbrances filed by Supplier or any of its subcontractors, suppliers, laborers, or materialmen; (iii) Supplier’s failure to maintain the insurance coverages required hereunder; (iv) any event or circumstance for which Iron Ox is entitled to indemnification under these Terms; (v) damages for which Supplier is responsible under these Terms; or (vi) any other claims that Iron Ox may have against Supplier under these Terms.

17. Representations and Warranties. In addition to Supplier’s standard manufacturer or product warranties, Supplier warrants to Iron Ox that all Products will: (a) be free from any defects in workmanship, material and design; (b) conform to applicable specifications, drawings, designs, samples and other requirements specified by Iron Ox; (c) be fit for their intended purpose and operate as intended; (d) be merchantable; (e) comply with all applicable laws, codes and regulations as published by any national or statewide association or group; (f) be free and clear of all liens, security interests or other encumbrances; and (g) not infringe or misappropriate any third party’s patent or other intellectual property rights. In addition to satisfying any and all specifications attached to the Order or set forth on the face of the Order, including, but not limited to any specifications, samples, or formula provided to Supplier, Supplier expressly warrants that the Work provided satisfies or exceeds all applicable legal requirements established by federal or state law, and/or applicable engineering, environmental or material standards, including, but not limited to, any recognized standards with respect to quality and fitness. Supplier shall provide Products that conform to or exceed any formula, specifications, samples and data which are incorporated herein or which were provided to Supplier by Iron Ox. These warranties survive any delivery, inspection, acceptance or payment of or for the Products by Iron Ox. These warranties are cumulative and in addition to any other warranty provided by law or equity. If Iron Ox gives Supplier notice of noncompliance with this Section 17, Supplier shall, at its own cost and expense, promptly replace or repair the defective or nonconforming Products and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming Products to Supplier and the delivery of repaired or replacement Products to Iron Ox. Supplier transfers to Iron Ox, only to the extent transferable, the warranty, if any, given by the manufacturer of any Products supplied under this Agreement that were not manufactured by Supplier. Such manufacturer’s warranty period shall be longer or equal to Supplier’s manufactured warranty. Iron Ox reserves the right to modify the specifications at any time. Supplier shall advise Iron Ox of any cost changes resulting from the modified specifications, and Impossible shall have the right to accept such cost changes or terminate the Order.

18. General Indemnification. Supplier shall defend, indemnify and hold harmless Iron Ox, its affiliates, successors or assigns and their respective directors, officers, shareholders and employees (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with (a) the Products purchased from Supplier, (b) acts, omissions or failures to act by Supplier, its subcontractors, agents or employees, in connection with the performance or non-performance of this Agreement, or (c) or Supplier’s negligence, willful misconduct or breach of the Terms, except due to gross negligence of Iron Ox. Supplier shall not enter into any settlement without Iron Ox’s or Indemnitee’s prior written consent.

19. Use of Name. Except as required by law or with Iron Ox’s prior written consent, Supplier will not (i) disclose the existence, the terms and conditions or the subject matter of the Order or the existence of a relationship with Iron Ox or (ii) use Iron Ox’s or its affiliates’ or licensors’ corporate names, trademarks, service marks, logos or other identifiers. In no event shall Supplier or its employees, agents or subcontractors represent themselves as employees or agents of Iron Ox.

20. Intellectual Property Indemnification. Supplier shall, at its expense, defend, indemnify and hold harmless Iron Ox and any Indemnitee against any and all Losses arising out of or in connection with any claim that Iron Ox’s or Indemnitee’s use or possession of the Products infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. In no event shall Supplier enter into any settlement without Iron Ox’s or Indemnitee’s prior written consent.

21. Insurance. Supplier shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than $2 million with financially sound and reputable insurers. Upon Iron Ox’s request, Supplier shall provide Iron Ox with a certificate of insurance from Supplier’s insurer evidencing the insurance coverage specified in the Order. The certificate of insurance shall name Iron Ox as an additional insured. Supplier shall provide Iron Ox with thirty days’ advance written notice in the event of a cancellation or material change in Supplier’s insurance policy. Except where prohibited by law, Supplier shall require its insurer to waive all rights of subrogation against Iron Ox’s insurers and Iron Ox or the Indemnitees.

22. Compliance with Law and Suppliers Code of Conduct. Supplier shall be in compliance with and shall comply with all applicable laws, regulations and ordinances. Supplier shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Order. In addition, Supplier represents and warrants that, in the production and sale of Products to be delivered pursuant hereto, Supplier has complied with all applicable federal, state, and municipal laws and regulations, including, without limitation, (a) all such laws and regulations pertaining to health, safety and environmental standards, (b) all such laws and regulations pertaining to design, manufacture, testing, labeling, and transportation of such Products, and (c) all such laws and regulations pertaining to affirmative action, nondiscrimination, and equal opportunity. Supplier will comply with Iron Ox’s Supplier Code of Conduct as in effect from time to time. Supplier will provide such assurances and documentation as Iron Ox may from time to time reasonably request to verify compliance with this Section, and Iron Ox may, from time to time and upon advance written notice, review Supplier’s books and records and inspect Supplier’s facilities to audit such compliance. Upon written notice by Iron Ox of a determination that Supplier has failed to comply with any of its obligations in this Section, Supplier will take immediate action to correct such noncompliance; provided, any such notice or any request to correct any noncompliance will not waive, limit, delay or otherwise adversely affect any of Iron Ox’s rights and remedies under the Order.

23. Termination. Iron Ox may terminate, cancel, or suspend the Order, in whole or in part, at any time with or without cause for undelivered Products upon written notice to Supplier. In addition to any remedies that may be provided under these Terms, Iron Ox may terminate, cancel or suspend the Order with immediate effect upon written notice to the Supplier, either before or after the acceptance of the Products, if Supplier has not performed or complied with any of these Terms, in whole or in part. If the Supplier becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then Iron Ox may terminate the Order upon written notice to Supplier. If Iron Ox terminates the Order for any reason, Supplier’s sole and exclusive remedy is payment for the Work received and accepted by Iron Ox prior to the termination.

24. Waiver. No waiver by any party of any of the provisions of the Order shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Order, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Order shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

25. Intellectual Property; Confidential Information. Supplier acknowledges that Iron Ox’s brand and all of its associated and derivative intellectual property and commercially sensitive information, including its formulas, specifications, trade dress, processes, techniques, and/or any other intellectual property or proprietary information associated with the goods and services provided to Iron Ox under the Order, are solely owned by Iron Ox, and nothing in the Order grants any express or implied right thereto or waiver by Iron Ox thereof. Unless otherwise agreed in writing, all inventions, discoveries and improvements made, conceived or reduced to practice by Supplier in connection with its performance under the Order are hereby and shall remain the sole property of Iron Ox. All non-public, confidential or proprietary information of Iron Ox, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Iron Ox to Supplier, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the Order is confidential, solely for the use of Supplier’s obligations in performing the Order and may not be disclosed to any third party, unless authorized by Iron Ox in writing (“Confidential Information”). Upon Iron Ox’s request, Supplier shall promptly return all documents and other materials received from Iron Ox. Iron Ox shall be entitled to seek injunctive relief for any violation of this Section 26. This Section 26 shall not apply to information that is: (a) in the public domain; (b) known to the Supplier at the time of disclosure; or (c) rightfully obtained by the Supplier on a non-confidential basis from a third party. If Iron Ox and Supplier have entered into a confidentiality agreement which covers disclosure of Confidential Information between the parties (“NDA”), the NDA shall be incorporated by reference herein and the term of the NDA shall be automatically extended until all Work under the Order is completed.

26. Limitation of Iron Ox’s Liability. IRON OX’S ENTIRE LIABILITY TO SUPPLIER OR ANY THIRD PARTY, IF ANY, FOR ANY CLAIMS, DEMANDS, CAUSES OF ACTION, ARISING IN TORT, CONTRACT, OR OTHERWISE, INCLUDING WITH RESPECT TO ANY STATUTORY CLAIM, IS LIMITED SOLELY TO THE PRICE ACTUALLY PAID BY IRON OX UNDER THESE TERMS. NOTWITHSTANDING THE FOREGOING LIMITATION, IRON OX SHALL NOT BE LIABLE TO SUPPLIER FOR SPECIAL, INDIRECT, ECONOMIC, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING UNDER THESE TERMS, OR OTHERWISE, WITH RESPECT TO THE SALE, PURCHASE, OR USE OF THE PRODUCTS, INCLUDING ANY LOST REVENUE OR PROFITS, BUSINESS INTERRUPTION OR DAMAGE TO BUSINESS REPUTATION, REGARDLESS OF THE THEORY UPON WHICH ANY CLAIM MAY BE BASED, INCLUDING, WITHOUT LIMITATION, TORT, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, PRODUCT LIABILITY OR ANY STATUTORY CAUSE OF ACTION.

29. Access to Records. Iron Ox shall have access to and the right to examine any directly pertinent books, documents, papers, and records of Supplier involving transactions related to this Agreement until the expiration of three (3) years after final payment hereunder. Supplier agrees to keep and maintain such records for such period of time.

31. Attorneys’ Fees. In the event it becomes necessary for Iron Ox to enforce these Terms, or to defend or prosecute any litigation arising out of or as a result of these Terms, or in connection with the sale of the Products to Iron Ox by Supplier, Iron Ox shall be entitled to recover from Supplier, in addition to any other relief granted, reasonable attorneys’ fees, expert fees, costs and expenses of litigation to the extent Iron Ox is the substantially prevailing party.

32. Assignment. Supplier shall not assign, transfer, delegate or subcontract any of its rights or obligations under the Order without the prior written consent of Iron Ox. Any purported assignment or delegation in violation of this Section 32 shall be null and void. No assignment or delegation shall relieve the Supplier of any of its obligations hereunder. Iron Ox may at any time assign, transfer or subcontract any or all of its rights or obligations under the Order without Supplier’s prior written consent.

33. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in the Order 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. No relationship of exclusivity shall be construed from the Order.

34. No Third-Party Beneficiaries. The Order 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 these Terms.

35. Governing Law; Dispute Resolution. All matters arising out of or relating to the Order shall be governed by and construed in accordance with the laws of the State of California. The parties expressly waive the application of the United Nations Convention for the International Sale of Goods. Any controversy or claim arising out of or relating to the Order, or any breach thereof, shall be adjudicated in the state and federal courts sitting in the State of California.

36. Cumulative Remedies. The rights and remedies under the Order are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.

37. Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the 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), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in the Order, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section 37.

39. Amendment and Modification. No change to the Order is binding upon Iron Ox unless it is in writing, specifically states that it amends the Order and is signed by an authorized representative of Iron Ox.

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

41. Survival. Provisions of the Order which by their nature should apply beyond their terms will remain in force after any termination or expiration of the Order including, but not limited to, the following provisions: Set-off, Warranties, General Indemnification, Confidential Information, Intellectual Property, General Indemnification, Intellectual Property Indemnification, Insurance, Compliance with Laws, Governing Law, Dispute Resolution, and Survival.