Gecko Purchasing Terms and Conditions

1.    Definitions.

The following capitalized terms have the meanings set forth below:

a. “Affiliate” means, with respect to an entity, any entity that controls, is controlled by or is under common control with that entity. For purposes of this definition, “control” means direct or indirect ownership of fifty percent (50%) or more of the shares of the entity entitled to vote in the election of directors (or, in the case of an entity that is not a corporation, for the election of the corresponding managing authority), whether through ownership of voting securities, by contract or otherwise.

b. “​Background IP​” means all Intellectual Property Rights (i) owned, made, conceived or reduced to practice by such party prior to the Effective Date or (ii) made, conceived or reduced to practice by such party during the Term of, but independent of and outside the scope of, these Terms.

c. “​Change of Control​” means (i) the consummation of a reorganization, merger or consolidation, or sale or other disposition of substantially all of the assets of a party, or (ii) the acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1933, as amended) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under such Act) of more than fifty percent (50%) of either (A) the then-outstanding shares of common stock of such party; or (B) the combined voting power of the then-outstanding voting securities of such party entitled to vote generally in the election of directors.

d. "Company" means the supplier providing Production Goods or Services to Gecko pursuant to a PO or SOW.

e. “​Development Deliverables​” means the specific materials, software, designs, devices, products or other deliverables that are provided by Company to Gecko as a result of performing the Services as specified in the applicable PO or SOW, including any components thereof.

f. “​Force Majeure​” ​means any event or delay that is caused, directly or indirectly, by fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil disorders, acts of public enemy, blockades, insurrections, pandemics, epidemics, or a similar cause beyond the reasonable control of a party, but specifically excluding: (i) strikes, labor stoppages or slowdowns, or other industrial disturbances; or (ii) lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials.

g. “Foreground IP" means any and all of the Intellectual Property Rights conceived, created, acquired, developed, derived from or based on development with respect to, or for incorporation into, the Products, that are either conceived, created, acquired, developed, derived from or based on development by Gecko alone, by Gecko and Company jointly or by Company alone as requested by Gecko in connection with these Terms or any PO or SOW.

h. “​Intellectual Property Rights​” means any and all current and future intellectual property rights throughout the world, whether existing under intellectual property, unfair competition or trade secret laws, or under statute or at common law or equity, including, but not limited to: (i) copyrights, trade secrets, trademarks, trade names, patents, inventions, designs, logos, database rights, code rights and trade dress, “moral rights,” mask works, rights of personality, publicity or privacy, and any other intellectual property and proprietary rights; (ii) any registration, application or right to apply for any of the rights referred to in this clause; (iii) any and all renewals, extensions and restorations thereof, now or hereafter in force and effect; and (iv) any and all other intellectual property rights, and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of the foregoing that may exist anywhere in the world, including without limitation, in the case of each of the foregoing, whether unregistered, registered or comprising an application for registration.

i. "Production Goods​” means the specific raw materials, software, designs, devices, products or other deliverables, including any Development Deliverables that are ordered by Gecko pursuant to a PO or SOW. 

j. “​Products​” means Production Goods or Development Deliverables, individually or collectively, as applicable.

k. “​Purchase Order​” or “PO” means Gecko’s purchase order issued to Company pursuant to a SOW or hereunder, which shall, among other things, specify items such as the Purchase Order number, quantity of Products ordered, price, method of shipment, place(s) of delivery, and delivery date(s).

l. “​Services​” means the services performed by Company for Gecko or in support of Products, including provision of engineering resources, production support, or other services, as described in the applicable PO or SOW. 

m. “​Specifications​” means the technical specifications and drawings set forth by Gecko or Company as referenced in the applicable Purchase Order or SOW, to which Company will manufacture Products.

n. “​Statement of Work​” or “​SOW​” means the description of the Services, including the Development Deliverables, project schedule, payment schedule, Specifications, acceptance criteria, and other information set forth in the applicable SOW.

o. “Terms and Conditions” or “Terms” means these Purchasing Terms and Conditions, and includes any PO or SOW issued pursuant to these Purchasing Terms and Conditions.

2.    FORMATION OF THE AGREEMENT

2.1.    Without limitation of anything contained herein, any additional, contrary, or different terms contained in any Company confirmation or any of Company’s invoices or other communications, and any other attempt to modify, supersede, supplement or otherwise alter these Terms, are deemed rejected by Gecko and will not modify these Terms or be binding on the parties unless such terms have been fully approved in a signed writing by authorized representatives of both parties. Each PO or SOW (if applicable and as may be amended) taken together with the incorporated terms of these Terms will be a separately enforceable agreement and may be entered into by Gecko or an Affiliate of Gecko, at Gecko’s discretion. If applicable, for the avoidance of doubt, if the Statement of Work provides that Company will design part or all of the Development Deliverables, then the parties will describe the design, testing and validation protocol for such Development Deliverables within such Statement of Work.    

2.2.    Gecko is not bound by and hereby expressly rejects Company’s general conditions of sale and any additional or different terms or provisions that may appear on any proposal, quotation, price list, acknowledgment, invoice, packing slip or the like used by Company. Course of performance, course of dealing, and usage of trade shall not be applied to modify these Purchasing Terms and Conditions.

3.    MANUFACTURING AND SUPPLY

3.1.    Capacity. Company will have a sufficient amount of capacity and availability to produce the Products for Gecko pursuant to a Purchase Order(s) or SOW.        

3.2.   Supply Shortages. In the event that Company’s ability to supply Products is insufficient to fill Gecko's outstanding Purchase Orders, or if the Company anticipates any shortage of supply (each, a “​Supply Shortage​”), it shall immediately notify Gecko of such Supply Shortage and its estimated duration. For the duration of the Supply Shortage, Company will use its best efforts to prioritize its allocation of available Products (or the available component(s) of Products causing the Supply Shortage) If any Supply Shortage continues for a period of more than fifteen (15) days after Gecko’s receipt of notice of the Supply Shortage, Gecko shall have the right, without liability hereunder, to terminate these Terms and/or any Purchase Order or SOW upon written notice to Company.

4.    PURCHASING, SHIPMENT AND LOGISTICS

4.1.    Purchase Orders​. Gecko will issue Purchase Orders to Company in written or electronic form. Company will supply the Products and all materials necessary to manufacture, process, pack and deliver the Products according to the Specifications at the price set forth on such Purchase Order, unless otherwise agreed upon by Gecko and Company. Further, time and quantities are of the essence under the Purchase Order. Company will immediately notify Gecko of any anticipated delay in meeting any delivery date. If Company does not comply with any of its delivery obligations under this Section 4.1, Gecko may, in Gecko’s sole discretion and at Company’s sole cost and expense, (i) approve a revised delivery date, (ii) require expedited or premium shipment, or (iii) cancel the applicable Purchase Order. All early deliveries, late deliveries, partial deliveries or excess deliveries will require written approval by Gecko.    

4.2.   Acceptance, Rejection, Adjustment and Cancellation of Purchase Orders​. If Company fails to issue a confirmation within five (5) days of receipt of a Purchase Order, or otherwise commences performance under such Purchase Order, Company will be deemed to have accepted the Purchase Order. Such acceptance is expressly limited to these Terms and the applicable Purchase Order, and any additional or different terms proposed by Company are automatically rejected, unless expressly agreed to in writing by Gecko. Gecko may withdraw or modify any Purchase Order prior to Company’s acceptance thereof. Company may not cancel any previously accepted Purchase Order hereunder. Gecko may, in its sole discretion reschedule the delivery date. All Product reschedules in excess of ten (10) business days require the mutual written consent of the parties. 

4.3.    Shipping and Delivery​. Gecko shall specify the required documents to be provided with each shipment of Products, including without limitation e.g. a Certificate of Conformance/Analysis. Company will notify Gecko at the time of shipment as to the quantity of Products shipped and the specific shipping information. Shipping quantities may not vary from those established by the applicable Purchase Order unless otherwise mutually agreed upon in writing by the parties. Company will ship the Products to the delivery address(es) set forth in the applicable Purchase Order. Gecko may instruct Company to deliver, at Gecko’s cost (if agreed upon in advance), all or a portion of Products ordered pursuant to a Purchase Order to non-Gecko locations.

4.4.    Title and Risk of Loss. Company will deliver the Products DDP to Gecko’s designated site. The Parties may revise this Section 4.4 upon mutual agreement on a project-by-project basis pursuant to an SOW or Purchase Order.

4.5.    Packaging and Labeling. Company shall securely and properly pack, label, and ship Products as instructed by Gecko and otherwise in accordance with applicable law and industry standards, and shall provide Gecko with shipment documentation showing the Purchase Order number, Company’s and/or Gecko’s applicable part number for the subject Products, the quantity of pieces in shipment, the number of cartons or containers in shipment, Company’s name, the bill of lading number, and the country of origin. Company will be responsible for all losses or damages caused or due to Company’s failure to package Products in accordance with this Section 4.5.

4.6.    Inspection Upon Delivery. Upon receipt of any delivery of Products, Gecko reserves the right to receive, inspect and test such Products, unless otherwise agreed upon by both parties in writing. If the Products are found to be defective in material or workmanship, do not conform to the Specifications set forth in corresponding SOW or otherwise do not meet the requirements set forth in any Purchase Order, including with respect to delivery location, part number and quantity, Gecko has the right to reject such Products. If Gecko rejects any Products under this Section 4.6, Gecko may, in its sole discretion, elect to (i) require the Company, at the Company’s sole cost and within ten (10) days after Gecko’s notice of rejection to Company, to replace the rejected Products at the location specified by Gecko (which may include the Company’s location, Gecko’s location or the location of a third party), (ii) within ten (10) days after Gecko’s notice of rejection by Company, repair the Products itself or have the Company or another third party repair the Products at the location specified by Gecko (which may include the Company’s location, Gecko’s location or the location of a third party), or (iii) retain the rejected Products. Gecko will have the right to inspect and test such replacement Products. For the avoidance of doubt, Gecko’s acceptance or rejection of Products under this Section 4.6 will not waive, limit or otherwise affect any of Gecko’s other rights or remedies under these Terms or pursuant to applicable law, including without limitation Company obligations with respect to any Product warranty or Company’s duty to indemnify, in each case, as set forth below.

5.    PAYMENT TERMS

5.1.    ​Prices​. Prices under these Terms are set forth in the applicable Purchase Order or SOW, as applicable. Prices are exclusive of taxes (federal, state and local excise, sales, use, VAT, duties, tariffs, transfer taxes and similar charges) unless otherwise agreed by Gecko and Company in writing. The Company is solely responsible for, all costs and expenses relating to customs, taxes, tariffs and duties, and any other similar financial contributions or obligations relating to the production, manufacture, sale, and delivery of the Products. Prices shall not be modified without the prior written consent of both parties. Company may not modify prices or issue surcharges without Gecko’s prior written consent. All amounts must be listed in US dollars.      

5.2.    ​Invoices​. Company’s invoice will be supported by an itemized description of the applicable Products or Services and the applicable amounts due. All payments will be made in US dollars, unless otherwise specified in the Purchase Order or SOW, and no interest will be paid on any overdue amounts.

5.3.    Payment​. Gecko will pay all undisputed amounts set forth in Company invoices (subject to applicable withholding taxes, if any) within thirty (30) days of Gecko’s receipt of the applicable invoice.

6.    INTELLECTUAL PROPERTY

6.1.    Background IP​. Except as may be otherwise set forth in these Terms or an SOW, each party is the sole and exclusive owner of, and retains all rights, title, and interest in and to, its Background IP (or, where applicable, the third-party from whom its right to use the Intellectual Property Rights has been derived). Gecko does not transfer to the Company any of its Background IP, and Company may not use any of Gecko’s Background IP other than to produce and supply Products to Gecko hereunder. Company shall specify all Company Background IP provided by or used by Company in connection to its performing of the Services under these Terms in each Statement of Work. 

6.2.    License. Each party shall grant or procure the grant of all such licenses to the other party to use any Intellectual Property Rights as are necessary to allow the other party to exercise its rights and perform its obligations under these Terms.    

7.    QUALITY

7.1.    Product Quality. Product shall be manufactured in compliance with all applicable laws and in conformance with the applicable Specifications, standards, drawings set forth by Company or Gecko as referenced in the applicable Purchase Order or SOW or otherwise agreed upon in writing by Gecko and Company. Furthermore, the Product shall meet the Product acceptance criteria that is mutually agreed to and specified in the applicable SOW, if applicable. 

7.2.    Change Notification. Changes proposed by Company, both material and process or software changes, which may affect form, fit, function, reliability, performance, or interface capability with Gecko’s Product must be submitted along with a written change notice, for Gecko’s prior review and written approval before change is implemented.

7.3.    Alert of Known Failure. Company will immediately alert Gecko of any non-conformance that would affect any past shipments or upcoming shipments. Company will provide full traceability of the non-conforming Product including, but not limited to: affected serial numbers, delivery dates, manufactured dates, and/or lot information. 

7.4.    Corrective and Preventive Actions (“CAPA”). Company shall apply its CAPA system to quality, or performance issues raised by Gecko or a Corrective Action Report (“CAR”) issued by Gecko related to Product non-conformances, Service(s) or audit findings. Company is required to use a structured root cause analysis approach when conducting and documenting corrective action responses. The Company shall establish and agree via the CAR process upon a corrective action timeline with Gecko.

8. REPRESENTATIONS AND WARRANTIES; DISCLAIMER

8.1.    Mutual Representations and Warranties​. Each party represents, covenants, and warrants to the other party that: 

a. it is duly organized, validly existing, and has full and adequate power and authority to enter into these Terms, to grant the rights granted to the other party hereunder and in any SOW and to perform its obligations hereunder and in any SOW and Purchase Order;

b. the execution, delivery, and performance of these Terms by such party and the performance by such party of the transactions contemplated in these Terms have been duly and validly authorized by all necessary action, corporate or otherwise, on its part, and these Terms constitutes the valid, legal, and binding obligation of such party; and

c. such party is not and will not be subject to any agreement or other constraint that does, would, or with the passage of time would prohibit or restrict such party’s right or ability to enter into or carry out its obligations hereunder.

8.2.    Company Representations and Warranties​. Company hereby represents, covenants, and warrants that:

a. the Services will be performed in a professional, good and workmanlike manner using reasonable care consistent with not less than the highest industry standards by Company having a level of skill in the area commensurate with the requirements of the SOW to be performed;

b. it has obtained all licenses, authorizations, approvals, consents, or permits required to conduct its business generally and to exercise its rights and perform its obligations under these Terms; and

c. it will comply with all applicable state, federal and local laws, ordinances, rules, codes, constitutions, treaties and regulations in the performance of Services and provision of the Products under these Terms and the applicable SOW and Purchase Order and will notify Gecko immediately if Company becomes the subject of a government audit or investigation.

8.3.    Gecko Representations and Warranties​. Gecko hereby represents and warrants that:

a. Gecko shall comply with all applicable ​state, federal and local laws and regulations ​in the carrying out of its obligations under these Terms or any applicable SOW and Purchase Order and will notify Company immediately if Gecko becomes the subject of a government audit or investigation related to the Products; and

b. Gecko shall operate the Product in accordance with the applicable Product Specifications.

8.4.    Product Warranty​. Company warrants to Gecko and any end users of the Products that:

a. unless otherwise provided for by applicable law, for a period of one (1) year from the date of invoice, the Products will:

i. conform, in all respects, to the Specifications, standards, drawings, samples, descriptions, quality requirements, performance requirements, statements of work, and fit, form and function requirements furnished, specified or approved by Gecko for the Products;

ii. conform with Gecko’s quality standards;

iii. be merchantable (as such term is defined in the UCC) and free from defects, latent or otherwise, in design (provided that Company is responsible for the design per the Purchase Order or SOW), materials, and workmanship;

iv. not infringe upon, violate or misappropriate the Intellectual Property Rights of any person;

v. comply with all applicable laws, orders, regulations, and standards in the United States of America and in Europe, in addition to certain other countries which the parties may agree to be listed in the Specifications from time to time based upon where the Products are to be used or sold.

b. each of the Products will be new and conveyed by Company to Gecko with good title, free and clear of all encumbrances.

c. Gecko’s approval of any design, drawing, material, process or specifications will not relieve Company of these Product warranties in this Section 8.4.

8.5.    Remedies for Non-Conforming Products​. Gecko’s remedy for Products that do not conform to the representations and warranties set forth in Section 8.4 of these Terms will be, at Gecko’s option and at Company’s sole cost and expense (including applicable shipping, administrative and labor costs), to:

a. reject the non-conforming Products and prepare for return to Company for diagnostic evaluation;

b. require Company to either repair or replace the nonconforming Products; and/or

c. require Company to implement at its expense containment, inspection, sorting, and other quality assurance procedures if Gecko reasonably determines that a substantial quantity of incoming Products does not conform to the warranties in Section 8.4 of these Terms.

Gecko will furnish the following information with any notice of nonconformity: (i) the nature of the defect or failure, if known; (ii) whether or not the returned Product is under warranty; and (iii) ship-to address for return of replacement or repaired Product.​ Company will be responsible for all return shipping costs of repaired or replacement units to Gecko​. Gecko may return defective Products, freight collect, after obtaining a return material authorization number from Company to be displayed on the shipping container and completing a failure report. ​Gecko shall bear all costs and expenses associated with Products that have been returned to Company for which Company and Gecko agree that there is no defect found. To the extent commercially reasonable, Gecko will provide Company with access to any available warranty data related to the Products and any available field-returned Products. Gecko will also provide Company with an opportunity to participate in any root cause analysis performed by Gecko or on its behalf concerning the Products. The rights and remedies set forth in these Terms are cumulative with, and in addition to, all other legal and equitable remedies, whether express, implied, statutory or at common law.

8.6.    Withdrawal or Recall of Products. If Gecko, any of Gecko’s customers or any governmental authority determines that any Products or any item contained within the Products sold to Gecko are defective and a recall campaign is necessary, Gecko will have the right to implement such recall campaign and return defective Products to the Company or destroy such Products, as determined by Gecko in its reasonable discretion, at Company’s sole cost and risk. If a recall campaign is implemented, at Gecko’s option and Company’s sole cost, Company shall promptly replace any defective Products and provide such replacement Products to Gecko or Gecko’s designee. The foregoing will apply even if the Product warranty and any other product warranty applicable to the Products have expired. Company will be liable for all of Gecko’s costs associated with any recall campaign if such recall campaign is based upon a reasonable determination that the Products fail to conform to the warranties set forth in these Terms. Where applicable, the Company shall pay all reasonable expenses associated with determining whether a recall campaign is necessary.

9.    CONFIDENTIAL INFORMATION

9.1.    Confidential Information​. Each party (the "​Receiving Party​") will retain in confidence the terms of these Terms and all other nonpublic information, technology, materials and know-how of the other party (the “​Disclosing Party​”) disclosed to or acquired by the Receiving Party pursuant to or in connection with these Terms, including without limitation confidential information and materials comprising or relating to Intellectual Property Rights, trade secrets, third-party confidential information, and other sensitive or proprietary information, that is either designated as proprietary or confidential or, by the nature of the circumstances surrounding disclosure, ought in good faith to be treated as proprietary or confidential ("​Confidential Information​"); provided that each party may disclose the terms and conditions of these Terms to its immediate legal and financial consultants in the ordinary course of its business. Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose other than to carry out the activities contemplated by these Terms. Receiving Party will protect the Confidential Information of the Disclosing Party, taking precautions at least as great as those taken to protect its own confidential information of a similar nature, but in no event less than reasonable precautions. Receiving Party will also notify the Disclosing Party promptly in writing in the event Receiving Party learns of any unauthorized use or disclosure of any of the Disclosing Party’s Confidential Information, and Receiving Party will cooperate in good faith to remedy such occurrence to the extent reasonably possible. Upon request of the Disclosing Party, Receiving Party will return to the Disclosing Party all materials, in any medium, that contain or reveal all or any part of any of the Disclosing Party’s Confidential Information.

9.2.    Exceptions​. The restrictions set forth in this paragraph will not apply to any information, technology, materials or know-how that: (i) was known by the Receiving Party without any obligation of confidentiality prior to disclosure thereof by the Disclosing Party; (ii) was in or entered the public domain through no fault of the Receiving Party; (iii) is disclosed to the Receiving Party by a third party legally entitled to make such disclosure without violation of any obligation of confidentiality; (iv) is independently developed by the Receiving Party without reference to any Confidential Information of the Disclosing Party; or (v) is authorized for disclosure to a third party at the direction of the Disclosing Party, provided that the foregoing exception will only apply to the third party specified by the Disclosing Party for that particular disclosure. In addition, notwithstanding Section 9.1, a Receiving Party may disclose the Disclosing Party’s Confidential Information if such disclosure is required by applicable laws or regulations, provided that the Receiving Party give the Disclosing Party advance written notice of such disclosure (to the extent legally permissible), reasonably cooperates with the Disclosing Party in seeking confidential treatment of such information, and only discloses that portion of information that, based on the reasonable advice of counsel, is legally required to be disclosed.

9.3.    Injunctive Relief​. Each party acknowledges that breach of this provision by it would result in irreparable harm to the other party, for which money damages would be an insufficient remedy, and therefore that the other party will be entitled to seek injunctive relief to enforce the provisions of this Section 9.     

10.    INFORMATION SECURITY

10.1.    Ownership of the Gecko Information shall remain with Gecko and its affiliates. Company may use the Gecko Information only for the performance of the Agreement and in accordance with Gecko’ instructions. 

10.2.    Company shall establish an information security management framework to initiate and control the implementation of security policies, standards, and procedures within Company organization to protect Gecko Information and assets relevant to the Agreement (including any systems). Such framework shall be operated in accordance with industry standards and shall at a minimum include protection against loss, deterioration, corruption, unauthorized alteration, and unauthorized access. Company shall protect Gecko Information and assets based on the principles of confidentiality, integrity, and availability.

11.    INDEMNIFICATION

11.1.    Company​. Company will indemnify, defend and hold Gecko, its Affiliates and its and their respective officers, directors, employees and agents harmless from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, fees and the costs of enforcing any right to indemnification under these Terms and the cost of pursuing any insurance providers (collectively, “Losses”) resulting from any third party claim arising out of or relating to: (i) any breach or alleged breach by Company of any material obligation, representation or warranty hereunder, including those set forth in any of the SOWs and Purchase Orders; (ii) any negligent or willful acts of Company, its Affiliates or its or their employees, agents or subcontractors; (iii) any defect or failure in the workmanship of any Product; (iv) any bodily injury, death of any person or damage to real or tangible personal property; or (v) any allegation that the Company’s Intellectual Property used in the design or production of the Products, or that is embodied in the Products, infringes any Intellectual Property Right of a third party.

11.2.    Gecko. Gecko will indemnify, defend, and hold Company and its officers, directors, employees and agents harmless from and against any and all Losses resulting from any third-party claims arising out of or relating to any negligent or more culpable act or omission of Gecko or any of its employees, agents or subcontractors (including any recklessness or willful misconduct) in connection with Gecko’s performance under these Terms.

11.3.    Procedure​. Each party will give the other party prompt written notice of any claim subject to indemnification, provided that a party’s failure to promptly notify the indemnifying party will not affect such party’s indemnification obligations except to the extent that indemnified party’s delay prejudices the indemnifying party’s ability to defend such claim. The indemnifying party will defend any claim with counsel of its own choosing and settle it as it deems appropriate, provided that the indemnifying party will not enter into any settlement that adversely affects the other party’s rights or requires any admission by the other party without such other party’s prior written consent. At the indemnifying party’s expense and request, the other party will reasonably cooperate with the indemnifying party in the defense and settlement of any claim subject to indemnification by the indemnifying party. At its discretion and expense, the indemnified party may participate in the defense, any appeals, and settlement with counsel of its own choosing. In the case of indemnity under Section 11.1(C), Company will cooperate with Gecko to identify and or remedy any defect, default, claim of defect or other problem or quality issue relating to the Products (and related systems and components).

12.    LIMITATIONS OF LIABILITY. EXCEPT FOR LIABILITY ARISING FROM OR RELATING TO ANY INDEMNIFICATION OBLIGATIONS, ANY BREACH OF CONFIDENTIALITY OBLIGATIONS, OR THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF EITHER PARTY, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES FOR ANY CLAIM ARISING UNDER THESE TERMS, OR ANY ADDENDUM HERETO REGARDLESS OF THE CAUSE OF ACTION AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.     

13.    SUSPENSION AND TERMINATION. Without prejudice to any other right or remedy available to Gecko under these Terms or at law, Gecko shall be entitled at its discretion to suspend or terminate the performance of its obligations under these Terms in whole or in part by means of written notice to Company in the event that: (i) Company files a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, assignment for the benefit or creditors or similar proceeding; (ii) Company becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding; (iii) Company ceases or threatens to cease to carry on business in the ordinary course; (iv) Company breaches any of its obligations under these Terms or Gecko, in its reasonable discretion, determines that Company cannot or shall not deliver the Production Goods or perform the Services as required; or (v) Company fails to provide adequate assurance of performance following request by Gecko.

14.    DISPUTE RESOLUTION AND GOVERNING LAW

14.1.    Dispute Resolution. Before initiating any legal claim or action (except with respect to equitable relief), the parties agree to attempt in good faith to settle any dispute, controversy, or claim arising out of or related to these Terms (collectively, a “​Dispute​”) through discussions which will be initiated upon written notice of a Dispute by either party to the other party. If the parties cannot come to a mutually agreeable resolution of the Dispute within ten (10) business days of one party’s receipt of written notice thereof, then such Dispute will be referred to members of the parties’ executive management (each such member a “​Representative​”) for resolution. If the parties’ Representatives have not reached a mutually agreeable resolution of the Dispute within ten (10) business days after their initial meeting, then either party may pursue its rights and remedies available at law or in equity.

14.2.    Governing Law/Venue. These Terms and all matters arising out of these Terms are governed by, and construed in accordance with, the laws of the Commonwealth of Pennsylvania, without giving effect to any conflict of laws provisions thereof that would result in the application of the laws of a different jurisdiction. Either party shall institute any legal suit, action, or proceeding arising out of these Terms in the federal or state courts in each case located in Allegheny County, Pennsylvania. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY: (I) CONSENTS AND SUBMITS TO THE JURISDICTION OF THE AFOREMENTIONED COURTS; AND (II) WAIVES ANY OBJECTION TO THAT CHOICE OF FORUM BASED ON VENUE OR TO THE EFFECT THAT THE FORUM IS NOT CONVENIENT. For avoidance of doubt, these Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly disclaimed.

15.    ANTI-CORRUPTION; EXPORT CONTROL; IMPORT COMPLIANCE

15.1.    Compliance with Law​. Each party will comply with all applicable United States, foreign and local laws and regulations, including, without limitation, anti-corruption laws, export controls, and import laws and regulations.

15.2.    Anti-Corruption/ Import / Export. Company understands and acknowledges that Gecko is committed to compliance with applicable anti-corruption, export control and import laws. Company represents, warrants, and covenants the following with respect to its Services provided and/or Products delivered to Gecko under the Agreement or otherwise:

a. Company will be responsible for securing any necessary export or import licenses, approval or authorizations for the export, re-export, transfer or import of any Products or Services. 

b. Company will not export, re-export, or transfer any Gecko product (including Products), technology or service to any individual or entity that is identified in the following: (i) Entity List, Bureau of Industry and Security, U.S. Department of Commerce; (ii) Denied Persons List, Bureau of Industry and Security, U.S. Department of Commerce; (iii) Unverified List, Bureau of Industry and Security, U.S. Department of Commerce; (iv) List of Debarred Parties, Directorate of Defense Trade Controls, U.S. Department of State; (v) List of Specially Designated Nationals & Blocked Persons, Office of Foreign Assets Control, U.S. Treasury Department; or (vi) the Foreign Sanctions Evader List, Office of Foreign Assets Control, U.S. Treasury Department; or (vii) any other Restricted or Denied Parties List administered by the U.S. Government.

c. Company will not: (i) export, reexport, or transfer any Gecko product or service to any country that is subject to an embargo by the U.S. Government (currently, Crimea, Cuba, Iran, North Korea, Sudan, and Syria) (collectively the “​Embargoed Countries​”); (ii) export, re-export, or transfer any Gecko product or service to any instrumentality, agent, entity, or individual that is acting on behalf of, or directly or indirectly owned or controlled by, any governmental entity of any Embargoed Country; or (iii) export, re-export or transfer any Gecko product or service to a national of an Embargoed Country.

d. Company will comply with all applicable anti-corruption laws, including the UK Bribery Act 2010 and the US Foreign Corrupt Practices Act 1977, and will not pay or give, offer or promise to pay or give, or authorize the promise, payment or giving directly or indirectly of any monies or anything of value to any person or firm, including those employed by or acting for or on behalf of any governmental customer, any government official or employee, any political party, any employee of ​any political party, any member of a ruling or royal family, or any candidate for political office for the purpose of inducing or rewarding any favorable action in any matter related to the subject of these Terms or the business of Gecko. Company further agrees to keep accurate books and records in relation to these Terms and that any payments that Company makes to third parties in connection with these Terms will be supported by written, complete and accurate invoices that will be maintained by Company for the duration of these Terms and made available to Gecko for inspection upon Gecko’s request. Company agrees to promptly report to Gecko any potential or actual violations of any anti-corruption laws relating to these Terms or the business of Gecko of which it obtains knowledge and cooperate in good faith with Gecko in investigating any such violation.

e. Company agrees to promptly report to Gecko: (i) any knowledge or reason to know of violations of any export control or import laws; (ii) any potential or actual violations of any anti-corruption laws relating to these Terms or the business of Gecko of which it obtains knowledge; or (iii) if Company or Company persons become the subject of any formal or informal investigation, prosecution, or government/judicial determination related to a possible violation of any application anti-corruption, export control, import or customs law or regulation.

f. Company will fully cooperate and cause Company persons to cooperate in good faith in Gecko’s review or investigation in relation to an actual or potential violation of applicable anti-corruption, export control, import or customs laws or regulations.

16.    Publicity.

16.1.    Insurance​. Prior to or concurrent with the execution of these Terms and upon the renewal of any policy, Company shall furnish to Gecko copies of insurance certificates evidencing that it maintains the coverages listed in Exhibit A or such greater coverage as required by law or regulation, with an insurance carrier or carriers having an A.M. Best rating of A- or better, or an equivalent rating by another rating agency. Coverages may be provided through a combination of primary and umbrella policies. The existence of insurance does not release Company of its obligations or liabilities under these Terms. All insurance required, except worker’s compensation, will name Gecko as defined herein as additional insured. Company agrees and its insurer shall agree that Company's policies will be primary without right of contribution from Gecko or its insurance policies. Company further agrees and its insurer shall agree (i) to waive its rights of subrogation against Gecko and (ii) that the insurance coverages will not be invalidated for any Gecko indemnitee by any action, inaction, or negligence of Company.

16.2.    Independent Contractor​. The relationship of Gecko and Company established by these Terms is that of independent contractors. No party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement, or undertaking with any third party without the express consent of such other party.

16.3.    Assignment. Except as otherwise provided herein, neither party may assign, transfer, or subcontract these Terms, in whole or in part, or delegate any of its duties hereunder, without the other party’s express, prior written consent. Gecko may assign, transfer, or subcontract these Terms, in whole or in part: (i) to Gecko’s Affiliates; or (ii) in connection with a Change of Control. Any attempted assignment in contravention of this provision will be null and void. No assignment or delegation shall relieve the assigning [or delegating party of any of its obligations hereunder unless the non-assigning or non-delegating party enters into a novation releasing the assigning or delegating party of its obligation under the Agreement. these Terms will be binding on all permitted assignees and successors in interest. A Change of Control by Company will be deemed an assignment for purposes of this Section 16.3. In addition, in the event that any entity that controls Company undergoes a Change of Control, Company will notify Gecko as soon as reasonably practicable under the circumstances. Additionally, notwithstanding anything to the contrary herein, Gecko may use its Affiliates, consultants, and contractors in connection with the performance of its obligations and exercise of its rights under these Terms, as long as those parties are subject to the same obligations as Gecko under these Terms.

16.4.    Waiver of Breach​. The waiver of any breach of any provision of these Terms will only be effective if it is in writing and signed by the party granting the waiver. A waiver of any breach will not constitute a waiver of any subsequent breach. A party’s failure to respond or act will not be considered a waiver.

16.5.    Severability​. If any provision of these Terms is invalid or unenforceable in any jurisdiction, the other provisions of these Terms will remain in full force and effect in such jurisdiction and will be liberally construed in order to effectuate the purpose and intent of these Terms, and the invalidity or unenforceability of any provision of these Terms in any jurisdiction will not affect the validity or enforceability of any such provision in any other jurisdiction.

16.6.    Force Majeure​. Neither party will be liable for any default or delay in the performance of its obligations under these Terms, including its obligations with respect to any SOW, if and to the extent: (i) the default or delay is caused, directly or indirectly, by a Force Majeure event; (ii) the non-performing party is without fault; and (iii) the default or delay could not have been prevented by reasonable precautions. In such event, the non-performing party is excused from further performance for as long as such circumstances prevail and the party continues to use its commercially reasonable efforts to recommence performance. Any party so delayed will notify the party in writing to whom performance is due and describe the circumstances causing the delay. In the event that the failure or delay remains uncured for a period of fifteen (15) days, the other party may thereafter terminate these Terms and/or any SOW or Purchase Order immediately on written notice to the non-performing party.

16.7.    Remedies​. No remedy conferred by any of the specific provisions of these Terms or available to a party is intended to be exclusive of any other remedy, and each and every remedy will be cumulative and in addition to every other remedy given hereunder, now or hereafter existing at law or in equity or by statute or otherwise. The election of one or more remedies by either party will not constitute a waiver of the right to pursue other available remedies.

16.8.    No Publicity or Promotion​. Except as otherwise set forth in any mutually agreed upon SOW hereto, neither party will directly or indirectly issue or permit the issuance of any press release, public statement or publicity regarding the other party or the Agreement without prior consideration with and written approval by such other party.

16.9.    No Third Party Beneficiaries​. The parties hereby disclaim any intent that their obligations under these Terms or any portion thereof benefit or can be relied upon by any third party.

16.10.    Entire Agreement/Amendments​. These Terms and the exhibits attached hereto contains the entire agreement of the parties regarding the subject matter described herein, and all other promises, representations, understandings, arrangements, and prior agreements related thereto are merged herein and superseded hereby. The provisions of these Terms may not be amended except by an agreement in writing signed by authorized representatives of both parties.

16.11.    Survival. Sections 1, 2, 9, 11, 12, 14, and 16 shall survive any expiration or termination of these Terms.