Flock Group, Inc. Standard Purchase Order Terms and Conditions

Flock Purchase Order Terms and Conditions (“Terms and Conditions”) govern the rights, remedies and obligations of Flock Group, Inc. or an entity controlled by Flock Group, Inc. or subject to common control with Flock Group, Inc. (“Flock”) and a Vendor (the “Vendor”) of items and materials, including products, hardware, software, furniture, equipment, and merchandise (“Products”) and services (“Services”) under purchase orders issued by Flock and agreements, engagement letters, statements of work, or other documents mutually executed by Flock and Vendor that refer to or incorporate these Terms and Conditions (each, an “Order Form”). These Terms and Conditions will be deemed accepted by: (i) Vendor’s commencement of performance; (ii) Vendor’s shipment of any items specified in an Order Form; and/or (iii) any other indication of Vendor’s agreement to an Order Form, whichever occurs first. Any terms, conditions or provisions of any Vendor quotation, confirmation, order acknowledgement, invoice, or other commercial document sent to Flock are hereby rejected and shall not constitute additional or modified terms. Any or all of such proposed terms will not operate as a rejection of this offer, but shall be deemed a proposed material alteration thereof, and this offer will be deemed accepted by Vendor without and not including such proposed terms. Notwithstanding the foregoing, if the parties have mutually executed a master services agreement, independent services agreement, purchase agreement, or any other definitive agreement (“Parent Agreement”) covering Products and Services, the terms of such Parent Agreement shall prevail over these Terms and Conditions. For the purposes of these Terms and Conditions, online terms or agreements that Flock accepts to login or access Products or Services, such as a software as a service, are not an agreement that has been “mutually executed” and will not replace, supplement or amend these Terms and Conditions in any way. Capitalized terms not defined herein will have meanings provided in the Order Form. 

1. Delivery. Vendor will expediently perform its obligations under the Order Form. Delivery of Products and Services shall be strictly in accordance with the schedule set forth in the Order Form. Any delays in shipment shall be reported immediately by Vendor to Flock. Flock reserves the right to cancel the Order Form, in whole or in part, if Vendor fails to make deliveries in accordance with its terms. Vendor will preserve, pack, package, and handle the Products so as to protect the Products from loss or damage and in accordance with industry best practices. Without limiting the foregoing, Vendor shall observe the requirements of any local laws and regulations relating to hazardous work, including, with respect to its accompanying information, packing, labeling, reporting, carriage, and disposal. Notwithstanding any prior inspections, Vendor maintains/bears all risk of loss, damage, or destruction until acceptance of Products or Services by Flock.
    
2. Payment. Flock will pay Vendor the price set forth in the Order Form in accordance with the payment terms specified therein upon the occurrence of the later of: (i) the delivery date; (ii) the date of Flock's acceptance of all Products or Services or any portion thereof; or (iii) Flock's receipt of a properly prepared invoice. A properly prepared invoice must include the Order Form number and, if required in the Order Form, Vendor’s certification of conformance of the Products or Services to the requirements. Upon Flock’s request, Vendor agrees to submit electronic invoices. The amounts to be paid by Flock to the Vendor do not include taxes. Flock will pay or reimburse Vendor for sales, use, value added taxes or any similar transaction taxes it owes due to an Order Form and which the law requires Vendor to collect from Flock. Flock has no liability for any taxes based on Vendor’s assets or income or for which Flock has an appropriate resale or other exemption. If Flock is required by law to make any deduction or to withhold from any sum payable hereunder, then the sum payable by Flock upon which the deduction is based shall be paid to Vendor net of such legally required deduction or withholding.
    
3. Intellectual Property.

a. Definitions. “Intellectual Property” means all current and future copyrights, trademarks, trade names, logos, service marks, trade secrets, patents, utility models, design rights, know-how and applications, moral rights, database rights, contract rights, and other proprietary rights now or hereafter recognized by the laws of any jurisdiction or country, and any applications, registrations, reissues and renewals of the same, throughout the world. “Pre-Existing IP” means any Intellectual Property owned, created, developed, leased and/or licensed by a party prior to, outside of or independently from an Order Form. “Deliverables” means all Intellectual Property and other materials uniquely created or developed for Flock under an Order Form; provided, however, none of the following are Deliverables: (i) hardware, software, SaaS, Services or Vendor Pre-Existing IP as provided to Flock that have not been specifically customized for Flock; or (ii) technology or Intellectual Property made available to Flock as part of generally-available maintenance Services for a Product. 

b. Ownership. Each party shall own its Pre-Existing IP. To the extent any Services contain any Deliverables, Flock shall exclusively own Deliverables as of the date of their creation. Deliverables are “works made for hire” to the extent allowed by applicable law and all other Intellectual Property rights therein will be owned exclusively by Flock. To the extent that any Deliverable is not considered a “work made for hire”, Vendor shall and hereby does irrevocably assign and transfer all of its right, title, and interest in and to the Deliverable, including all Intellectual Property therein, to Flock. Vendor shall ensure that Vendor Personnel engaged under an Order Form shall comply with the requirements of this Section.

c. License to Pre-Existing IP. If and to the extent that any Pre-Existing IP or a portion thereof is incorporated in the Deliverables or is otherwise necessary for the use of the Deliverables, Vendor hereby grants to Flock a perpetual, irrevocable, non-exclusive, worldwide, royalty-free, fully paid-up license, with the right to sublicense through multiple tiers, to use, make, sell, distribute, execute, adapt, translate, reproduce, display, perform, modify, and create derivative works of Vendor’s Pre-Existing IP in connection with the Deliverables in which they are incorporated, and authorizes others to do any, some, or all of the foregoing.

1. Term and Termination. An Order Form is effective until all Products or Services under the Order Form have been accepted and paid for by Flock. An Order Form for Products may be terminated or cancelled by Flock, in whole or in part, for any reason immediately upon notice. An Order Form for Services and/or Deliverables may be terminated or cancelled by Flock, in whole or in part, for convenience with thirty (30) days prior notice. An Order Form for Services and/or Deliverables may be terminated by Flock, in whole or in part, effective as of the occurrence of Vendor’s curable breach if Vendor fails to cure the breach within thirty (30) days of notice of such breach from Flock. An Order Form for Services and/or Deliverables may be terminated by Flock, in whole or in part, immediately upon Vendor’s incurable breach. If Flock terminates for convenience, its only obligation is to pay for Products, Services and/or Deliverables it accepts before the effective date of termination. Vendor may terminate an Order Form only based on Flock’s material breach of an obligation under an Order Form and only after providing Flock with thirty (30) days advance written notice and a reasonable opportunity to cure the breach.
    
2. Representations and Warranties. 

a. Performance Warranties. Vendor warrants to Flock for the longer of Vendor’s normal warranty period or for one (1) year following the date of Flock’s acceptance of the Products that: (i) when received by Flock from Vendor, the Products will be free from defects in design, material, workmanship, and manufacture; (ii) the Products will conform to the applicable documentation; (iii) the Products will be suitable for the purposes for which they are intended including purposes made known to Vendor; and (iv) all Products will be new and unused and not refurbished, unless otherwise agreed to in writing by the parties. The foregoing warranties are in addition to all other warranties, whether express or implied, and will survive delivery, inspection, acceptance, or payment by Flock.

b. General Warranties. Vendor represents and warrants that: (i) Vendor has all necessary rights of title to the Products and Services and has transferred all such rights and title to Flock upon Flock’s acceptance of the Products and Services; (ii) the Products and Services will be of professional quality and/or performed consistently with generally accepted industry standards; (iii) Vendor’s performance under the Order Form will not conflict with, or be prohibited in any way by, any other agreement or statutory restriction to which Vendor is bound; (iv) Vendor will comply with all applicable laws and regulations; (v) software will be free from any virus, malicious device, worm, Trojan, time bomb, or other harmful or destructive code; and (vi) the Deliverables will not contain any open source software licensed under the GNU General Public License, the GNU Lesser General Public License, or any other license that may require Flock to make any of its source code publicly available.

c. Pass-Through Warranties. Vendor assigns and passes through to Flock all of the third-party manufacturers’ and licensors’ warranties and indemnities for the Products.

d. Vendor Personnel. Vendor has conducted a criminal background check at its own expense on each employee, independent contractor, permitted subcontractor, vendor or agent performing Services or providing Products under an Order Form (collectively, “Vendor Personnel”). Subject to applicable law, Vendor Personnel shall not be eligible to perform Services for Flock if he or she has: (i) been convicted of or was placed in a pre-trial diversion program for any crime involving dishonesty or breach of trust; and/or (ii) been convicted of any sex, weapons, or violent crime. Vendor is responsible for ensuring that all Vendor Personnel meet the licensing, security, labor, and site requirements for the locale where the Services are being performed.

e. Disclaimer. VENDOR DISCLAIMS AND FLOCK EXPRESSLY WAIVES ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

1. Confidentiality. “Confidential Information” means any information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether in written, electronic, digital, or other form, that a reasonable person would understand to be confidential given the circumstances and content of the disclosure, whether or not designated as “confidential” or “proprietary,” including any written or printed documents, proposals, designs, concepts, raw data, employee information, drawings, ideas, inventions, specifications, techniques, discoveries, models, data, source code, object code, documentation, diagrams, flow charts, research, development, processes, procedures, know-how, marketing plans, strategies, pricing, policies, samples and physical items, financial information, software, hardware and all information of any kind relating to either party, their respective shareholders and/or affiliates. For the avoidance of doubt, the Deliverables constitute Confidential Information of Flock. Vendor agrees not to, directly or indirectly, use, make available, sell, disclose or otherwise communicate to any third party, other than in Vendor’s assigned duties and for the benefit Flock, any of Flock’s Confidential Information, either during or after the term without Flock’s prior written consent. Notwithstanding the foregoing, Confidential Information will not include any information which: (i) was or becomes publicly known through no action or inaction of Receiving Party; (ii) is already in the possession of Receiving Party at the time of disclosure as shown by credible evidence; (iii) is obtained by Receiving Party from a third party without a breach of such third party’s obligations of confidentiality; or (iv) is independently developed by Receiving Party without use of or reference to Disclosing Party’s Confidential Information, as shown by credible evidence.
   
   Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose except as solely required to perform its obligations pursuant to the Order Form. The Receiving Party will not disclose any Confidential Information of the Disclosing Party to any third parties without Disclosing Party’s prior written consent. In the event that Receiving Party is required by law, or judicial, administrative, or other legal order to disclose any of the Disclosing Party’s Confidential Information, Receiving Party will first give written notice to Disclosing Party (if permitted by law) to allow Disclosing Party to obtain a protective order or otherwise protect its interests in the Confidential Information. In such cases, Receiving Party will provide full cooperation and assistance to Disclosing Party in seeking such protection, at Disclosing Party’s expense.
    
2. Indemnification. Vendor shall indemnify, defend, and hold harmless Flock and its officers, directors, agents, employees, successors, and customers from and against any and all third party claims, liabilities, losses, damages, settlements, costs, and expenses (including attorneys’ fees) made against or sustained by Flock arising from: (i) any negligent or willful acts or omissions of Vendor, which results in tangible or intangible property damage, personal injury or death; (ii) Vendor’s breach of its confidentiality, privacy or security obligations; (iii) actions by Vendor Personnel against Flock for wages, fringe benefits, other compensation, or similar claims, and claims challenging Vendor’s right to dismiss Vendor Personnel; (iv) Vendor’s non-compliance with applicable law; and (v) any claim that the Products or Services infringe or misappropriate any third party Intellectual Property rights. If Flock’s use of any of the Products or Services is enjoined or in Flock’s reasonable opinion, is likely to be enjoined as a result of any such claim or allegation of Intellectual Property infringement, Vendor agrees, at Flock’s option, to: (a) accept return of the Products or Services from Flock and refund to Flock the amounts paid by Flock with respect to such Products and Services; (b) modify the Products or Services so that they become non-infringing but equivalent in functionality, quality, compatibility, and performance; or (c) procure for Flock and its customers the right to continue using and distributing the Products and Services.
    
3. Insurance. Without limiting Vendor’s obligations hereunder, Vendor, at its own cost, shall procure, maintain, and keep in full force and effect insurance to protect Vendor and Flock from all claims that arise out of or result from Vendor’s provision of Products or Services under an Order Form. 
4. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT FOR LIABILITY ARISING UNDER SECTION 7 (INDEMNIFICATION), IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR DAMAGES FOR ANY CAUSE WHATSOEVER IN AN AMOUNT IN EXCESS OF THE AMOUNTS PAID OR DUE TO VENDOR UNDER THE ORDER FORM. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT FOR LIABILITY ARISING OUT OF VENDOR’S BREACH OF SECTION 6 (CONFIDENTIALITY) HERETO, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES ARISING FROM ANY CLAIM OR ACTION HEREUNDER, WHETHER BASED ON CONTRACT, TORT OR OTHER LEGAL THEORY.
    
5. Export and Import Compliance. Vendor shall mark the Products with the appropriate country of origin marking sufficient to satisfy the requirements of the customs authorities of the country of receipt to prove importation and to transfer duty drawback rights to Flock. If any Products are imported, Vendor will, at Flock’s request, either: (i) allow Flock to be the importer of record; or (ii) provide Flock with any documents required to prove importation and to transfer duty drawback rights to Flock. Vendor acknowledges that the Products shipped, licensed, or sold under an Order Form, which may include technology and software, may be subject to the export control laws and regulations of the United States and other countries and Vendor agrees to abide by those laws and regulations.
    
6. Language. These Terms and Conditions are executed in English and may be translated into other language versions solely for reference by the parties. Any translated versions shall be nonbinding. In the event of any controversy between the parties respecting the interpretation or application of these Terms and Conditions or an Order Form, or if there is any inconsistency between the executed English version and the translation of such Terms and Conditions or Order Form, the English language version shall be controlling.
    
7. No Publicity; Use of Trademarks. Vendor shall not publicize or disclose the terms or existence of any Order Form, nor shall Vendor use or obtain any right or interest in the name(s), trademark(s), or tradename(s) of Flock. 
8. Government Contractor. Flock is an equal opportunity employer and federal contractor or subcontractor. Consequently, the parties agree that, as applicable, they will abide by the requirements 41 CFR 60-300.5(a) and 41 CFR 60-741.5(a) and that these laws are incorporated herein by reference. These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities. These regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment and otherwise treat qualified individuals without discrimination based on their status as a protected veteran or individual with a disability. The parties also agree that, as applicable, they will abide by the requirements of Executive Order 13496 (29 CFR Part 471, Appendix A to Subpart A), relating to the notice of employee rights under federal labor laws.
    
9. Subcontractors. Vendor will not subcontract any Products or Services to other persons or entities without the prior written approval of Flock. Vendor agrees to impose on its subcontractors the same obligations imposed upon Vendor under these Terms and Conditions. Vendor shall be responsible and liable for all acts of Vendor Personnel. Compensation for subcontracted services will be included in the fees and costs billed by Vendor.
    
10. Notices. All notices, permissions and approvals under an Order Form shall be in writing and shall be effective upon: (i) personal delivery; (ii) nationally (or internationally, if applicable) recognized overnight courier, with all fees prepaid; (iii) deposit with the relevant national postal service as certified mail, return receipt requested, postage prepaid; or (iv) electronically by email. Notices are deemed effective upon receipt or refusal of delivery. Notices of breach, termination or an indemnifiable claim may not be made by email. Notices to Flock shall be addressed to (a) Flock Group, Inc., 1170 Howell Mill RD NW, Atlanta, GA 30318, Attn: Legal, legal@flocksafety.com. 

1. Order of Precedence. In the event of a conflict between these Terms and Conditions and any Order Form, the order of precedence shall be as follows: (i) these Terms and Conditions; and (ii) the Order Form. Notwithstanding the foregoing, the terms of an Order Form may prevail for purposes of that Order Form if: (a) the Order Form expressly identifies and supersedes or modifies a provision in these Terms and Condition; and (b) such Order Form is issued by, or signed by, Flock.
2. Assignment. Vendor may not assign any of its rights or obligations under an Order Form, whether by operation of law or otherwise, without the prior written consent of Flock. Any attempted delegation or assignment by Vendor without such consent shall be void.
    
3. Miscellaneous. The relationship of Vendor and Flock is that of independent contractor. Except as provided herein, no term or condition of the Order Form may be amended or deemed to be waived, except by a writing signed by both parties. Each Order Form will be construed in accordance with the laws of the State of Delaware without regard to its principles of conflict of laws. the exclusive jurisdiction and venue of any action relating to an Order Form will be the state and/or federal courts located in Delaware and each of the parties hereto submits itself to the exclusive jurisdiction of such courts and waives any argument relating to the convenience of forum. The rights and remedies herein provided are in addition to those available to either party at law or in equity. Those provisions that by their nature are intended to survive termination or expiration of an Order Form shall survive.

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