Sales Terms and Conditions

These Standard Sales Terms and Conditions (the “Standard Terms”) are incorporated by reference, and apply to (a) all proposals, quotations, invoices and similar documentation submitted by Harbinger Motors Inc. and its affiliated companies (collectively, “Harbinger”) to purchaser (“Purchaser”); (b) all purchase orders, acknowledgments, request for quotation, or other similar documentation received by Harbinger from Purchaser; and (c) all sales of goods (which may include, without limitation, stripped chassis, complete and incomplete vehicles, step vans, HC Series Cabs, auxiliary power systems, parts, components, and accessories), and services sold by Harbinger (collectively, “Products”) to Purchaser. Products shall not include fleet management, analytics and advanced driver assistance system (“ADAS”) data services which are governed separately by the Harbinger Fleet Data Services Subscription Agreement. Harbinger and Purchaser may be referred to collectively as the “Parties” and individually as a “Party”. Capitalized terms used without definition shall have the meaning given to them in the Agreement or Appendix 1 attached hereto.

Offer

These Standard Terms and all other applicable agreements, including sales contracts and quotations (and any amendments thereto) issued by Harbinger, collectively constitute the Agreement between the Parties. Harbinger’s quotations represent an offer by Harbinger to sell the Products to Purchaser. The Agreement does not constitute Harbinger’s acceptance of any offer or proposal by Purchaser, whether in Purchaser’s purchase order, acknowledgment, request for quotation, or otherwise.

Acceptance

The Agreement, including these Standard Terms and Harbinger’s quotation(s), are accepted by Purchaser via any of: (a) written acceptance (including electronically) of these Standard Terms or any quotation or other document issued by Harbinger referencing these terms; (b) issuing a purchase order to Harbinger for the Products; (c) accepting all or part of any Products; or (d) any other conduct of Purchaser that recognizes the existence of a contract regarding the Products. Acceptance is limited to the terms of the Agreement. Any terms and conditions which modify, supplement, or alter these Standard Terms, including without limitation any terms referenced in any purchase order or other document issued by Purchaser, are not binding on Harbinger, and such terms and conditions are expressly rejected and replaced by these Standard Terms.

Warranties and disclaimers

EXCEPT FOR THE EXPRESS WARRANTIES DENOTED HEREIN, AND IN HARBINGER’S WARRANTY GUIDE APPLICABLE TO THE SPECIFIC PRODUCT (AS IN EFFECT ON THE DATE OF THIS AGREEMENT), HARBINGER MAKES NO OTHER EXPRESS OR IMPLIED WARRANTY, AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES OTHERWISE ARISING BY LAW, CUSTOM, USAGE, TRADE PRACTICE, COURSE OF DEALING, OR COURSE OF PERFORMANCE. Any representations as to performance and other matters not expressly specified in writing in the Agreement, e.g., on Harbinger’s website or communicated orally, are to be considered for illustrative purposes only and do not constitute a warranty. Should the Product incorporate any third-party components, Harbinger shall assign to Purchaser all applicable third-party manufacturer warranties to the extent permitted. If a warranty cannot be assigned, Purchaser shall be deemed a third party beneficiary entitled to enforce it directly. If only Harbinger can legally enforce a warranty, Harbinger shall take reasonable actions to do so on the Purchaser’s behalf upon receiving a written request.

Purchaser assumes all risk and liability resulting from use of the Products by Purchaser or any other user of the Products, including without limitation Purchaser’s end customer (if applicable), whether alone or in combination with any other goods, services, or software. Harbinger has no responsibility to determine the adequacy or skills of the Purchaser’s staff or any other matter. No warranties of Harbinger apply in the event of any of the following by any person other than Harbinger or its employees, agents, or subcontractors: (i) failure to comply with any operational or maintenance guidelines or requirements, including Harbinger’s Owner’s Manual; (ii) physical abuse of the Products or acts of vandalism; (iii) alterations, modifications, additions, or repairs which may adversely affect the condition or operation of the Products; (iv) accidents or damage resulting from fire, water, wind, hail, lightning, electrical surge or failure, earthquake, theft, or similar causes not contributed to by the sole negligence of Harbinger or its employees, agents, or subcontractors; (v) any failures due to any inaccurate or incomplete information provided by or on behalf of Purchaser or another party; or (vi) any failures due to normal wear and tear, normal maintenance, and unknown causes. Perishable and consumable items are further excluded from all warranties. Any network connectivity issues, or gaps in service, are not covered by Harbinger’s warranties. Harbinger does not warrant that it or the Products are in compliance with any entity, organization, or industry standards, guidelines, or procedures, or any requirements of any safety or environmental code or regulation beyond the specific express warranties in the Agreement. Purchaser represents and warrants that all information provided to Harbinger and its representatives is accurate and complete. Harbinger warrants to Purchaser, subject to the disclaimers and limitations of the Agreement, that Products will be free from defects in workmanship at the time of delivery and will in material respects meet the Specifications expressly agreed to by Harbinger in its quotation. Harbinger warrants that Products will be delivered with good title, free and clear of any material liens or defects to title.

Quantity; delivery; title and risk of loss or damage

Purchaser is obligated to buy, and Harbinger is obligated to sell, the Products in the quantities specified in Harbinger’s quotations, and invoices. Harbinger may make delivery of Products in installments. Each installment of Products to be delivered is considered a separate sale and Purchaser must timely pay Harbinger the price for each installment which is delivered, as set forth on the quotation. Any failure by Purchaser to pay (in whole or in part) for a Product or an installment or other amount when such payment is due shall be a Breach of the Agreement by Purchaser. Purchaser acknowledges and agrees that there is no guarantee by Harbinger of the actual delivery date, as all delivery and other dates for Harbinger’s performance are estimates only. As such, Harbinger will not be in Breach of the Agreement, or liable to Purchaser, because of delays or failure to deliver any Product to Purchaser. Delay in delivery of any Product does not relieve Purchaser of its obligations to accept such delivery or any future deliveries of Products. If a delay is due to Purchaser, payment is due and payable in accordance with Harbinger’s invoices, and Harbinger may at its option hold the Products at the place of manufacture or elsewhere through a third party at Purchaser’s sole risk and expense. If Harbinger is unable to accommodate Purchaser by holding such Products, Purchaser must accept shipment immediately or arrange for transport to an alternative delivery location. Harbinger will notify Purchaser when Products are expected to be ready for delivery and Purchaser agrees to schedule and take delivery of the Products within ten (10) business days of such dates, unless otherwise agreed in writing by the Parties.

Harbinger is not obligated to deliver Products to locations to which delivery or sale would require changes to the Specifications or to the Agreement unless Harbinger agrees to the changes in writing and Purchaser remains responsible for all related costs and expenses. Notwithstanding anything to the contrary in the Agreement, delivery locations for the Products must be in states or provinces in the United States or Canada where Harbinger is licensed to sell Products, and Purchaser acknowledges and agrees that Products can only be delivered and sold in the United States and Canada.

The Agreement is a shipment contract, and Harbinger will arrange for the shipping of the Products via a third-party carrier. Unless otherwise detailed in the applicable Harbinger quotation, delivery of a Product to Purchaser will occur, and risk of loss or damage of or to the Product shall pass to Purchaser, (i) at the time of carrier’s delivery of the Product to the location for delivery specified in the applicable quotation (or as otherwise agreed in writing between the Parties), or (ii) if no location is specified (in the applicable quotation [or a written agreement between the Parties]), then at and upon Harbinger’s tender of the Product to a carrier for shipment. Notwithstanding delivery and transfer of risk of loss or damage, title to the Product shall be deemed to pass from Harbinger to Purchaser, and the sale of the Product shall occur, at the place (and time) where Harbinger tenders(ered) the Product to a carrier for shipment; provided that, if Harbinger determines that the foregoing is restricted by applicable law (e.g., the tender occurs in a state where Harbinger is not licensed to make a sale), title to the Product shall pass to Purchaser, and the sale of the Product from Harbinger to Purchaser shall occur, in a state chosen by Harbinger where Harbinger is not so restricted, including without limitation, a state in which Harbinger is licensed to sell Products to persons or entities who are not authorized Harbinger dealers or where Harbinger is not required to have a license to sell Products to persons or entities who are not authorized Harbinger dealers. For each Product sold by Harbinger to Purchaser, Harbinger shall have a security interest in the Product until Purchaser has paid Harbinger the full purchase price of the Product.

Payment terms; price

Purchaser shall pay each invoice pursuant to the terms noted on the quotation, and if nothing is specified therein, then upon the date of invoice by Harbinger but in all events prior to shipment of the Products from Harbinger unless otherwise specified in the quotation. The price for the Products is fixed and payable in U.S. dollars. The price does not include design or validation costs. Prices do not include taxes. Purchaser must pay all applicable taxes, such as any manufacturer’s tax, occupation tax, use tax, sales tax, excise tax, GST, value added tax, duty, custom, export and import tariffs, inspection or testing fee, and any other tax, fee, interest, and charge imposed by any domestic, foreign, federal, state, or local governmental authority on or in connection with the Parties’ transaction that Purchaser is required to pay pursuant to federal and state law in connection with the Agreement, which amounts shall be added to the price, may be invoiced separately, and paid by Purchaser in addition to the price of the Products. Purchaser is responsible for all charges, costs, and expenses related to any freight, shipping, handling, packaging, storage, insurance, demurrage, and transportation of the Products or similar charges, except to the extent otherwise set forth on the quotation.

In the event Purchaser paid a deposit fee to Harbinger for the Products, Harbinger may apply the preorder payment (or applicable portion) towards the price. Notwithstanding anything to the contrary, Harbinger makes no representation or guarantee regarding Purchaser’s eligibility for any potential incentives, rebates, or tax credits.

Packaging

Packages (if applicable) will be marked per the carrier’s instructions, and Harbinger will furnish packing lists that Purchaser reasonably advises to Harbinger are necessary to enable Purchaser’s agent to prepare documents required for export shipment. Harbinger will generally follow such instructions, provided that Harbinger may pack and ship the Products in its discretion. Purchaser shall timely provide Harbinger with all information, documentation, assistance, and any other items requested by Harbinger for proper classification of the Products and each shipment to secure the most expeditious clearance. Purchaser shall indemnify Harbinger for any damages, interest, and penalties arising from any false or inaccurate statement.

Security agreement and insurance

In addition to any security interest granted by the UCC or other law, to secure all obligations of Purchaser to Harbinger, whether or not arising under the Agreement, Purchaser hereby grants Harbinger a perfected purchase money security interest in all Products until full payment of the Products have been received by Harbinger. In the event Purchaser Breaches the Agreement, Harbinger shall have all rights and remedies of a secured creditor under the UCC. In case of a Breach by Purchaser, Purchaser irrevocably appoints Harbinger as its agent to obtain possession of the Products and related documents. Harbinger may install and activate procedures or devices to make the Products non-operative upon Purchaser’s Breach.

Until Harbinger has received full payment of the purchase price and all amounts payable under the Agreement, Purchaser shall maintain customary and reasonable insurance covering all Products and risks related thereto. Purchaser will immediately advise Harbinger in writing of any damage to, or seizure of, any Products the price of which has not been paid in full to Harbinger.

Changes to product or shipping

Harbinger may at any time make changes to Product Specifications prior to delivery. Purchaser may request in writing changes to the Products and shipping instructions. Harbinger is not obligated to perform requested changes, however if Harbinger implements any changes in relation to Purchaser’s request, Harbinger may increase the price as compensation to Harbinger.

Confidentiality

Except as otherwise provided in the Agreement, a Party receiving Confidential Information will take all reasonable precautions to prevent disclosure of the Confidential Information to others, and will use such Confidential Information only for the purpose of performance under the Agreement. Each Party agrees to protect the other Party’s Confidential Information with the same degree of care used to protect its own Confidential Information, but no less than a reasonable degree of care, and to restrict disclosure of such Confidential Information to those persons that have a need to know or use the Confidential Information and that are bound by an agreement of confidentiality at least as protective as this section.

Exceptions. The restrictions on the use and disclosure of Confidential Information will not apply if the Confidential Information is (i) in the public domain through no fault of the receiving Party; (ii) known to the receiving Party prior to disclosure by the disclosing Party; (iii) disclosed with the prior written consent of the disclosing Party; (iv) independently developed by the receiving Party; (v) lawfully disclosed to the receiving Party by a third party under conditions permitting such disclosure; or (vi) required by applicable law, regulation or governmental order to be disclosed, but only to the extent so required to be disclosed, and with prompt written notice to the disclosing Party so that the disclosing Party may seek an appropriate protective order or provide a redacted version of the Confidential Information, including of the Agreement, for disclosure.

Permitted Disclosures. Each Party may disclose Confidential Information, including the terms of the Agreement, (i) in confidence to: (a) legal counsel; (b) accountants and bankers for the purposes of securing financing; (c) insurers solely for the purposes of securing insurance and in settling any claim or loss; (ii) in confidence, in connection with the due diligence investigation of a merger, acquisition or similar transaction; or (iii) in connection with the enforcement of the Agreement.

Survival. The provisions of this section will survive for a period of five (5) years following the termination or expiration of the Agreement.

Intellectual property

Any Intellectual Property owned or licensed by Harbinger and used by Harbinger in relation to the Agreement will remain the exclusive property of Harbinger. Nothing in the Agreement will be deemed to grant Purchaser any license or any other rights in such Intellectual Property. Any design, invention or feature, whether patentable or not, trademark, or other information developed by Harbinger or Purchaser in relation to the Products will remain the sole and exclusive property of Harbinger, whether or not Harbinger charges for design, research, development, testing, or other items or services. Harbinger is under no obligation to refrain from using any information or unpatented disclosures which may pass to it from Purchaser in relation to the Agreement. Harbinger is not obligated to furnish detailed or working drawings, engineering calculations, computer programs, or other information for any Products or part thereof.

If designs or Specifications are furnished by Purchaser, Purchaser warrants that they do not infringe on any patent or other Intellectual Property right and must indemnify and hold harmless Harbinger from any claims of infringement against Harbinger.

Notice

Purchaser must notify Harbinger of any alleged defect, nonconformity, or breach of contract (“Defect”) in writing and with specificity immediately and in no event later than within thirty (30) calendar days of Purchaser’s discovery of any such potential issue. ALL DEFECTS, NON-CONFORMITIES, AND BREACHES OF CONTRACT WHICH ARE NOT SO SPECIFIED ARE WAIVED. Purchaser is limited to any available remedies specifically provided in the Agreement. Purchaser shall promptly provide Harbinger reasonable opportunity to examine and investigate any such allegation. Products cannot be deemed defective or non-conforming if Harbinger cannot duplicate the alleged failure. If the alleged failure can be duplicated by Harbinger, Harbinger will determine whether the failure is due to a Defect caused by Harbinger.

Recalls

In the event of a Product recall initiated by Harbinger due to a defect arising from the manufacturing process, Harbinger shall bear all costs associated with the recall, including notification to customers, Product retrieval, repair/replacement, and disposal, regardless of whether the recall is mandated by a regulatory agency or initiated voluntarily. Purchaser shall coordinate the recall process within its sales channels, including notifying customers who purchased the affected Products and facilitating the return of recalled Products to Harbinger, with all reasonable costs incurred by Purchaser for such actions to be reimbursed by Harbinger, provided such costs were approved in advance by Harbinger in writing.

Limitation of liability

GENERAL CAP: TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, EACH PARTY'S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT FOR ALL CLAIMS OF ANY KIND WILL NOT EXCEED THE AMOUNTS PAID OR PAYABLE BY PURCHASER TO HARBINGER UNDER THE AGREEMENT. THE GENERAL CAP WILL NOT APPLY TO LIABILITY FOR (I) FRAUD, WILLFUL MISCONDUCT, OR GROSS NEGLIGENCE, (II) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, OR (III) PURCHASER’S OBLIGATION TO PAY ANY UNDISPUTED FEES, INVOICES OR COSTS UNDER THIS AGREEMENT.

NO CONSEQUENTIAL DAMAGES: IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, FOR THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR LOST REVENUES OR PROFITS, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, HOWSOEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, EQUITY OR OTHERWISE, EXCEPT THAT THIS LIMITATION WILL NOT APPLY TO DAMAGES RESULTING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS OR INTELLECTUAL PROPERTY RIGHTS.

Force majeure

Harbinger shall not be liable or responsible to Purchaser, nor be deemed to have defaulted under or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement when and to the extent such failure or delay is caused by or results from acts beyond Harbinger’s reasonable control, including, without limitation, the following events: (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities, terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; (i) epidemic, pandemic or similar influenza or bacterial infection; (j) emergency state; (k) shortage of adequate medical supplies and equipment; (l) shortage of power or transportation facilities; and (m) other similar events beyond Harbinger’s reasonable control.

Termination

The Agreement, including Harbinger’s quotation, in whole or in part, may not be cancelled or altered by Purchaser except upon the Parties’ mutual written agreement, or by an amended quotation issued by Harbinger. In the event of a cancellation by Purchaser, Purchaser shall pay Harbinger: (i) the agreed unit prices for completed Products; and (ii) all other costs incurred or unavoidable by Harbinger before cancellation in support of the Agreement. Until Harbinger has received all cancellation charges, all cancelled Products shall remain Harbinger’s sole and exclusive property, regardless of the state of the Products’ completion.

Harbinger may terminate all or part of the Agreement at its sole discretion and at its convenience without any liability of Harbinger to Purchaser. Harbinger may also immediately terminate all or part of the Agreement if Harbinger discontinues a Product, feature, or option. In the case of any termination under the Agreement for Purchaser’s Breach, Harbinger shall keep all amounts received by Harbinger to date.

Governing law; disputes

The Agreement is governed by the laws of the State of California, without regard to principles of conflicts of laws. The U.N. Convention on Contracts for the International Sale of Goods is excluded. As a condition precedent to Purchaser’s filing of any action, the Parties agree to enter into mediation in good faith to resolve such dispute. Purchaser may not commence any action until ninety (90) calendar days of mediation (or longer if agreed by the Parties) has passed without resolution. Any action between the Parties arising under the Agreement shall, at Harbinger’s election, be resolved by a single arbitrator in binding arbitration under the Commercial Arbitration Rules and Mediation Procedures of the American Arbitration Association. The arbitration shall take place in Orange County, California, permit discovery as deemed reasonable by the arbitrator, and be conducted in English. Arbitrations are confidential and Purchaser may not disclose the existence of the arbitration or the nature of the action. The arbitrator’s award shall not be entered as a judgment in a court of law, unless Purchaser fails to voluntarily satisfy the arbitration award within sixty (60) calendar days after it has been rendered. If Harbinger does not elect arbitration, then Purchaser consents to the exclusive jurisdiction of the appropriate state court in Orange County, California, or if jurisdiction exists, in the federal court in the Central District of California, for any legal or equitable action arising out of the Agreement. Notwithstanding the foregoing, any action by Harbinger against Purchaser may be brought by Harbinger in any court with jurisdiction over Purchaser. Purchaser waives the right to a jury and to any objections to venue in such courts. PURCHASER AGREES THAT ANY CLAIM OR CAUSE OF ACTION WILL BE ADJUDICATED ON AN INDIVIDUAL BASIS AND WAIVES THE RIGHT TO PARTICIPATE IN A CLASS, COLLECTIVE, OR OTHER JOINT ACTION WITH RESPECT TO ANY CLAIM OR CAUSE OF ACTION. Either Party shall be entitled to reimbursement of its attorneys’ fees, costs, and expenses from the non-prevailing Party in any proceeding. Attorney fees shall mean the full and actual costs of any legal services performed in connection with the matters involved, calculated on the basis of the usual fees charged by the attorneys performing such services and, without limitation, the allocated costs of services of in-house counsel, and shall not be limited to "reasonable attorney's fees" as defined in any statute, case law, or rule of court.

Miscellaneous

i. Unpaid Amounts; Setoff.
If Purchaser fails to pay any invoice or other amount when due, or if at any time grounds for insecurity arise as to Purchaser’s performance of its payment or other obligations, or if Purchaser is a participant in a merger or other reorganization, then Harbinger may (a) require immediate payment in full or in advance, or otherwise modify the payment terms; (b) require a documentary letter of credit approved by a U.S. bank acceptable to Harbinger or other financial security for such payment or other obligations; and/or (c) terminate the Agreement upon notice to Purchaser.

All delays occasioned by acts of Purchaser shall be at Purchaser’s sole expense. Harbinger reserves the right to assess reasonable charges for its expenses resulting from such delays. All amounts not paid to Harbinger when due will incur a carrying charge of 1.5% per month to the extent allowed by law and otherwise at the highest written contract rate allowed by law. In addition to any right of setoff or recoupment provided to Harbinger by law, Harbinger may setoff and recoup against any amounts owed to Purchaser or its affiliates any amounts owed by Purchaser or its affiliates to Harbinger. Purchaser waives any right of setoff or recoupment and will pay all amounts owed to Harbinger when due regardless of any claim of Purchaser regarding warranties or other issues arising under the Agreement, tort, statute, or otherwise.

ii. Indemnification

a. Indemnification by Harbinger

Harbinger agrees to indemnify and hold harmless Purchaser, its affiliates, and its respective directors, officers, employees, contractors, representatives, invitees, and agents (“Purchaser Indemnitees”) from all liability for any and all claims, damages, losses, and expenses (including reasonable expert and attorney fees) under theories of tort, product liability, ordinary or gross negligence, warranty, contract, statute, or otherwise (“Losses”), during the Warranty Period, for bodily injury or property damage, to the extent that such Losses arise from or relate to any defect or failure to warn of a defect in design, manufacture or assembly of the Products by Harbinger; provided that (1) the defect could not reasonably have been discovered by Purchaser or its employees, agents, representative, or service providers during the inspection, preparation, upfit, repair or servicing of the Products and (2) that the event or occurrence leading to such Losses does not involve credible allegations of Purchaser’s or Purchaser Indemnitee’s misconduct, including but not limited to, improper or unsatisfactory service or repair, misrepresentation, or any claim of unfair or deceptive trade practices.

b. Indemnification by Purchaser

Purchaser agrees to indemnify and hold harmless Harbinger, its affiliates, and its respective directors, officers, employees, contractors, representatives, invitees, and agents (“Harbinger Indemnitees”) from all liability for any and all Losses, to the extent that such allegations arise from or relate to:

1. Purchaser’s failure to comply, in whole or in part, with any obligation assumed by Purchaser under this Agreement or at law;
2. Purchaser’s or its employee’s, agent’s, representative’s, or service provider’s negligent or improper inspection, preparation, upfit, repair or servicing of the Products or equipment as may be sold or serviced by Purchaser;
3. Purchaser’s alleged breach of any contract or warranty other than Harbinger’s breach of its warranties provided under these Standard Terms;
4. Purchaser’s alleged misleading statements, misrepresentations, or deceptive or unfair trade practices;
5. That the complaint does not involve allegations of liability premised upon Harbinger’s separate conduct or omissions.

c. Indemnification Procedures.

In the event a Party seeks indemnification, the indemnitee will promptly advise the indemnitor of any damage or injury incurred or the filing of any suit or any written or oral claim against it, provide the indemnitor with copies of all relevant documentation, and cooperate with the indemnitor and its insurer in every reasonable manner in making or defending against such claim. The indemnitee will not make any admission, or reach a compromise or settlement without the prior written approval of the indemnitor, which approval will not be unreasonably withheld or delayed. The indemnitor will assist in and will have the right to assume, when not contrary to the governing rules of procedure, the defense of any claim or suit or settlement thereof, pay all reasonable litigation and administrative costs and expenses, including reasonable attorney fees, incurred in connection with the defense of any such suit, and satisfy any judgments rendered by a court of competent jurisdiction in such suits and will make all settlement expenses. The indemnitee may participate in any defense at its own expense, using counsel reasonably acceptable to indemnitor, provided that there is no conflict of interest and that such participation does not otherwise adversely affect the conduct of the proceedings.

d. Notice of Injury or Damage.

Purchaser will notify Harbinger promptly, and in any event within thirty (30) calendar days, of any accident or malfunction involving Products which results in personal injury or damage to property and will cooperate fully with Harbinger in investigating to determine the cause of such accident or malfunction, including allowing Harbinger access to the Products and Purchaser’s reports regarding the Products for Harbinger’s inspection.

iii. Software.

Purchaser shall comply with any methods of software specified by Harbinger. The Products may require a flash/update to the latest software package upon delivery to Purchaser, post-upfit and before deployment on road.

iv. Post-Delivery Product Modifications.

Notwithstanding the transfer of title or risk of loss, following delivery of a Product to Purchaser or an upfitter, prior to final upfit of a vehicle Harbinger shall have the right to make repairs or modifications to the Product to ensure compliance with laws, correct for defects, or make such other changes or improvements as deemed reasonably appropriate.

v. Recording; Data; Consent:

Purchaser acknowledges and agrees that Harbinger may operate cameras, radar, and other telematics collection hardware in connection with the operation of the Products which, depending on the advanced driver assistance systems (“ADAS”) selected by Purchaser and installed in the Products, may capture and record live video footage, images, and other signals and data, which may include biometric video information, driver behavior, vehicle location, and other personal or private data (collectively, “Recordings”). Purchaser shall inform its employees, agents, subcontractors, and all other individuals who drive, use or otherwise operate the Products of the existence and operation of the Recordings, and inform each of the foregoing and any customer seeking to purchase Products (each a “User”), before such User uses any Product, of the Privacy Policy as may be provided and revised by Harbinger from time-to-time (the “Privacy Policy”) at at www.harbingermotors.com/legal/privacy. Purchaser shall indemnify, defend, and hold Harbinger harmless from and against any and all liabilities, Losses, damages, costs, fines, penalties, and expenses (including reasonable attorneys' fees) arising out of or related to Purchaser’s failure to inform each User of the latest Privacy Policy prior to such User’s use or operation of the Product.

vi. Advertising and Publicity.

Purchaser shall not discuss, disclose, advertise, market, or otherwise make known to third parties the existence of the Agreement or any information relating to the Agreement without Harbinger’s prior written consent. Purchaser shall not use or publicly display Harbinger’s name, trademarks, service marks, or logos without Harbinger’s prior written consent.

vii. Non-Disparagement.

Purchaser may not make any disparaging or derogatory statement with respect to Harbinger or its representatives or Harbinger’s products during the term of the Agreement and for five (5) years thereafter.

viii. Independent Contractor.

Purchaser and Harbinger are independent contracting parties. The Agreement will not be construed as creating any employment, agency, partnership, or joint venture relationship, or as permitting a Party to incur obligation on behalf of the other Party, or as making a Party the agent or representative of the other Party for any purpose.

ix. Severability.

If any term of the Agreement is invalid or unenforceable under applicable law, such term will be reformed or deleted, but only to the extent needed to comply with applicable law, and the remaining provisions of the Agreement will remain in full force and effect.

x. No Waiver.

Harbinger’s delay or failure to exercise any right or remedy, or its acceptance of a partial or delinquent payment, shall not constitute a waiver of any of Harbinger’s rights or Purchaser’s obligations under the Agreement, or a waiver of Harbinger’s right to declare an immediate or a subsequent Breach.

xi. Assignment.

Purchaser cannot, in whole or in part, assign the Agreement or delegate the performance of its duties without Harbinger’s written consent, and any attempt to do so shall be void abinitio. In the event of a proper assignment, the Agreement shall be binding upon and inure to the benefit of the Purchaser’s successors and assigns.

xii. No Third-Party Beneficiaries.

This Agreement is made solely and specifically among and for the benefit of Harbinger and Purchaser and their assigns subject to the express provisions hereof relating to Purchaser’s customer, and no other person will have any secondary or transferable rights, interest, or claims hereunder or be entitled to any benefits under or on account of this Agreement as a third-party beneficiary or otherwise.

xiii. No Dealership or Franchise Agreement.

The Agreement, including any Purchase Orders issued by Purchaser, is not intended to be, and shall not constitute, a dealer, franchise, or other similar type of agreement.

xiv. Government Regulations.

Purchaser may not use the Products, or engage in any transaction with respect to the Products, by way of resale, lease, shipment or otherwise, which violates any statue or regulation of the United States, or any other applicable laws. Harbinger may terminate any Agreement it believes was made in bad faith or toward resale of the Product (except by an authorized Harbinger reseller), in which case, payments made to date shall be kept by Harbinger. This includes orders facilitated or brokered by a third-party or where they may be registered in inappropriate countries, states, provinces or jurisdictions other than those expressly authorized by Harbinger.

xv. Duration.

Unless otherwise terminated in accordance with these Standard Terms, the Agreement will end after each of the Parties’ obligations under the Agreement have been fully performed.

xvi. Notices.

All notices, claims, and communications to Harbinger that are required or permitted under the Agreement shall be made in writing and sent by certified or registered mail, return receipt requested, and proper postage prepaid to the below address (or such other address provided by Harbinger to Purchaser) and shall be effective upon receipt by Harbinger in the form set forth in this section:

If to Harbinger:

Attn: Legal Department Harbinger Motors Inc.
12821 Knott Street
Garden Grove, CA 92841

With a copy to:

Attn: VP, Sales Harbinger Motors Inc.
12821 Knott Street
Garden Grove, CA 92841

xvii. Interpretation.

The words "include," "includes," and "including" are not limiting and will be deemed to be followed by the words "without limitation." The word "or" is not exclusive and the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to these Standard Terms as a whole unless the context requires otherwise. Unless the context requires otherwise, references to an agreement or other document means such agreement or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof. The Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument.

Appendix 1

“Agreement” means, the applicable quotations and sales contracts, invoices and similar documentation associated with the sale of goods or services by Harbinger to Purchaser, and including documentation incorporated therein.

“Breach” means, if Purchaser fails to fulfill their obligations as specified in the Agreement. The determination of the severity and materiality of a Breach are dependent on the circumstances and such determination shall be made at Harbinger’s sole discretion.

“Specifications” means, the applicable specifications provided by Harbinger that are specifically referenced or incorporated into the Agreement.

“Warranty Period” means, the applicable period(s) set forth in the Harbinger Limited Warranty Guide applicable to the specific Product that was in effect on the date of Harbinger’s delivery of such Product, and which is available on Harbinger’s customer technical support portal, or available upon request.

“Confidential Information” means, any confidential and/or proprietary information disclosed by or on behalf of a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) or its Representatives (defined below), either directly or indirectly in writing, orally or by inspection of tangible objects, including, without limitation, information regarding business, products, marketing, licensing or sales activities, policies, practices, emails, studies, reports, summaries, notes, analyses, strategies, targets, forecasts, investments, finances, revenue, pricing, costs, profits, software, samples, models, prototypes, hardware, research, designs, drawings, specifications, performance characteristics, source code, object code, formulas, algorithms, data, techniques, processes, inventions, trade secrets, testing strategies, customer information, third party confidential information, and/or other information of a similar nature which may be reasonably understood to be confidential. Confidential Information also includes information disclosed prior to the date of this Agreement that was indicated or can have reasonably been understood at the time to be confidential. The existence of this Agreement, identifying information regarding Harbinger, its employees, and its business objectives, and the nature of the proposed business relationship between the Parties shall be considered Confidential Information unless otherwise disclosed publicly or approved for public disclosure by Harbinger.

“Intellectual Property” means, without limitation: (i) inventions, discoveries, patents, patent applications and all related continuations, divisional, reissue, utility model, design and process patents, applications and registrations thereof, and certificates of invention; (ii) works, copyrights, registrations, and applications for registration thereof; (iii) computer software programs, data, and documentation;

(iv) trade secrets, confidential information, know-how, techniques, designs, prototypes, enhancements, improvements, work-in-progress, research, and development information; and (v) all other proprietary rights relating to the foregoing.