Defender Terms and Conditions of Sale

Last Updated: 8/4/26

These Terms and Conditions of Sale (these “Terms”) govern the sale of Products by Defender Security Products, LLC, a California limited liability company (“Defender”), to any buyer or customer identified in a quotation or Purchase Order (“Customer”). By accepting, signing, or executing a quotation that references or incorporates these Terms, by issuing a Purchase Order in response to such quotation, or by accepting delivery of any Products from Defender, Customer acknowledges that it has read, understood, and agrees to be legally bound by these Terms. These Terms are not required to be signed by either party to be effective and binding upon Customer.

1. DEFINITIONS

1.1 “Confidential Information” means non-public information that Defender identifies as confidential or that Customer should reasonably understand to be confidential given the nature of the information and the circumstances of disclosure, including pricing, technical information, specifications, designs, and proprietary processes.

1.2 “Defective” means not conforming to the Product Warranty set forth in Section 7.1.

1.3 “Delivery Location” means the street address for delivery of the Products specified in the applicable Purchase Order.

1.4 “Documentation” means the user guides, manuals, specifications, installation instructions, and other materials that Defender provides or makes available describing the features, operation, or installation of the Products.

1.5 “Effective Date” means the earliest of: (a) the date Customer accepts, signs, or executes a quotation that references or incorporates these Terms; (b) the date Customer issues a Purchase Order in response to such quotation; or (c) the date Customer accepts delivery of any Products from Defender.

1.6 “Intellectual Property Rights” means all industrial and other intellectual property rights comprising or relating to patents, trademarks, copyrights, trade secrets, designs, and all other intellectual property rights, whether registered or unregistered.

1.7 “Nonconforming Products” means any Products received by Customer from Defender pursuant to a Purchase Order that: (a) do not conform to the product identifier listed in the applicable Purchase Order; (b) do not fully conform to the Specifications; or (c) are Defective.

1.8 “Products” means the gate products, systems, components, and related tangible goods identified in a Purchase Order and described in any applicable Specifications.

1.9 “Purchase Order” means Customer’s purchase order issued to Defender, including all terms and conditions attached to, or incorporated into, such purchase order.

1.10 “Specifications” means the specifications for the Products set forth in the applicable Purchase Order or Documentation.

2. PURCHASE AND SALE OF PRODUCTS

2.1 Purchase and Sale. Subject to these Terms, Defender shall manufacture and sell to Customer, and Customer shall purchase from Defender, the Products identified in each Purchase Order accepted and executed between the parties.

2.2 Terms Prevail Over Customer’s Purchase Order. The parties intend for the express terms and conditions contained in these Terms, together with the basic purchase order terms contained in the applicable Purchase Order (including product description, quantity, delivery date, price, billing address, and delivery location), to exclusively govern each of the parties’ respective rights and obligations. Any additional, contrary, or different terms contained in any Purchase Order or other request or communication by Customer pertaining to the sale of Products by Defender, and any attempt to modify, supersede, supplement, or otherwise alter these Terms, shall not modify these Terms or be binding on Defender unless such terms have been expressly approved in a signed writing by authorized representatives from both parties.

2.3 Acceptance, Rejection, and Cancellation of Purchase Orders. Defender accepts a Purchase Order by confirming the order in writing or by delivering the applicable Products to Customer, whichever occurs first. Defender may reject a Purchase Order or cancel a previously accepted Purchase Order, without liability or penalty, and without constituting a waiver of any of Defender’s rights or remedies, by providing written notice to Customer specifying the applicable date of rejection or cancellation.

2.4 Right to Manufacture and Sell Competitive Products. These Terms do not limit Defender’s right to manufacture or sell, or preclude Defender from manufacturing or selling, to any person, or entering into any agreement with any other person related to the manufacture or sale of, the Products and other goods or products that are similar to or competitive with the Products.

2.5 Hardware Fabrication.

(a) Manufacturing Discretion. Defender shall have sole discretion over all aspects of the fabrication and manufacturing process for the Products, including the selection of methods, equipment, facilities, personnel, raw materials, and components. Defender may subcontract fabrication and substitute materials or components with equivalents of equal or greater quality without notice to Customer.

(b) Customer-Provided Specifications. If Customer provides specifications, designs, or drawings for custom fabrication (“Customer Specifications”), Customer represents and warrants that the Customer Specifications: (i) do not infringe any third party’s Intellectual Property Rights; (ii) are complete, accurate, and suitable for the intended purpose; and (iii) comply with all applicable laws and industry standards. Defender has no obligation to verify Customer Specifications. Customer shall bear all costs associated with any specification changes requested by Customer after acceptance of a Purchase Order.

(c) Tooling and Equipment. All tooling, dies, molds, fixtures, and other equipment developed or used by Defender in fabrication (“Tooling”) shall remain the sole property of Defender, regardless of any tooling fees paid by Customer.

(d) Production Tolerances. Customer acknowledges that fabricated Products may be subject to industry-standard production tolerances and minor variations. Such variations shall not constitute Nonconforming Products, provided the Products substantially conform to the Specifications.

3. SHIPMENT, DELIVERY, ACCEPTANCE, AND INSPECTION

3.1 Shipment. Unless otherwise expressly agreed by the parties in writing, Defender shall select the method of shipment of and the carrier for the Products. Defender may, in its sole discretion, make partial shipments of Products to Customer. Each shipment shall constitute a separate sale and Customer shall pay for the Products shipped, in accordance with the payment terms specified herein and in the Purchase Order.

3.2 Packaging and Labeling. Defender shall properly pack, mark, and ship Products and provide Customer with shipment documentation which may include, but is not limited to, the Purchase Order number, Defender’s identification number for the subject Products, the quantity of pieces in shipment, the number of cartons or containers in shipment, Defender’s name, and any other relevant information.

3.3 Delivery. Unless otherwise expressly agreed by the parties in writing, Defender shall deliver the Products to the Delivery Location using Defender’s standard methods for packaging and shipping such Products. Any time quoted for delivery is an estimate only.

3.4 Transfer of Title and Risk of Loss.

(a) Title to Products shipped under any Purchase Order passes to Customer upon receipt by Customer at the Delivery Location.

(b) Risk of loss to Products shipped under any Purchase Order passes to Customer upon Defender’s tender of such Products to the carrier.

3.5 Inspection. Customer shall inspect Products received hereunder within five (5) days of receipt of such Products (“Inspection Period”) and either accept or, only if any such Products are Nonconforming Products, reject such Products. Customer shall be deemed to have accepted Products unless it provides Defender with written notice of any Nonconforming Products during the Inspection Period, stating with specificity all defects and nonconformities, and furnishing such other written evidence or other documentation as may be reasonably required by Defender. All defects and nonconformities that are not so specified shall be deemed waived by Customer, such Products shall be deemed to have been accepted by Customer, and no attempted revocation of acceptance shall be effective.

3.6 Remedy for Nonconforming Products. If Customer timely notifies Defender of any Nonconforming Products, Defender shall determine, in its reasonable discretion, whether the Products are Nonconforming Products. If Defender determines that such Products are Nonconforming Products, Defender shall, in its sole discretion, either: (a) replace such Nonconforming Products with conforming Products; (b) repair Nonconforming Products so they are conforming Products; or (c) refund to Customer such amount paid by Customer to Defender for such Nonconforming Products returned by Customer to Defender. THE REMEDIES SET FORTH IN THIS SECTION 3.6 ARE CUSTOMER’S EXCLUSIVE REMEDY FOR THE DELIVERY OF NONCONFORMING PRODUCTS.

3.7 Limited Right of Return. Except as provided under Section 3.6 and Section 7.3, Customer has no right to return Products shipped to Customer pursuant to these Terms.

4. PRICE AND PAYMENT

4.1 Price. Customer shall purchase the Products from Defender at the prices set forth in the applicable Purchase Order or quotation (“Prices”).

4.2 Shipping Charges, Insurance, and Taxes. Customer shall pay for all shipping charges and insurance costs. Except as otherwise set forth on quotation, all Prices are exclusive of, and Customer is solely responsible for and shall pay, all sales, use, excise, value-added, and other taxes, levies, imposts, duties, and charges of any kind imposed by any governmental authority with respect to, or measured by, the manufacture, sale, shipment, use, or price of the Products (including interest and penalties thereon), other than taxes based solely on Defender’s net income.

4.3 Payment Terms. Defender shall issue invoices to Customer for all Products ordered. Customer shall pay to Defender all invoiced amounts within thirty (30) days from the date of such invoice. Defender will will invoice 50% upon receipt of Purchase Order and 50% on delivery of Products unless an alternative invoicing schedule is agreed upon.

4.4 Interest and Suspension. Customer shall pay interest on late amounts at the lesser of 1.5% per month or the maximum rate permitted by law. Defender may suspend Product shipments for unpaid amounts after providing notice to Customer.

4.5 Customer’s Unsatisfactory Credit Status. If, at any time, Defender determines in its sole discretion that Customer’s financial condition or creditworthiness is inadequate or unsatisfactory, then in addition to Defender’s other rights hereunder, at law, or in equity, Defender may, without liability or penalty: (a) modify the payment terms for outstanding and future purchases, including requiring Customer to pay on a cash in advance or cash on delivery basis; (b) reject any Purchase Orders received from Customer; (c) cancel any previously accepted Purchase Orders; (d) delay or withhold any further shipment of Products; (e) stop delivery of any Products in transit; and (f) accelerate the due date of all amounts owing by Customer to Defender.

4.6 No Set-Off. Customer shall not withhold, offset, recoup, or debit any amounts owed to Defender, whether under these Terms or otherwise, against any other amount owed to Customer by Defender, whether relating to Defender’s breach or non-performance of these Terms or otherwise.

4.7 Security Interest. To secure Customer’s prompt and complete payment and performance of any and all present and future obligations of Customer to Defender, Customer hereby grants Defender a first-priority security interest in all inventory of Products purchased hereunder, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. Defender may file a financing statement for such security interest and Customer shall execute such statements or other documentation necessary to perfect Defender’s security interest in such Products.

4.8 Price Adjustments. Defender reserves the right to adjust Prices for any unshipped Products under an accepted Purchase Order if, after acceptance of such Purchase Order, there is any increase in Defender’s costs due to: (a) changes in material costs, labor costs, or overhead costs; (b) changes in applicable laws, regulations, tariffs, or duties; (c) changes in foreign exchange rates; (d) delays or changes requested by Customer; or (e) any other circumstances beyond Defender’s reasonable control. Defender shall provide Customer with written notice of any such Price adjustment. If Customer does not accept the adjusted Price, Customer may cancel the affected portion of the Purchase Order within five (5) business days of receiving notice of the Price adjustment, and neither party shall have any further obligation with respect to the cancelled portion; provided, however, that Customer shall remain obligated to pay for any Products already shipped.

5. TERM AND TERMINATION

5.1 Term. These Terms shall be effective as of the Effective Date and shall continue in effect until terminated in accordance with these Terms.

5.2 Termination. Defender may terminate these Terms or any Purchase Order, in whole or in part, effective immediately upon written notice to Customer if: (a) Customer fails to make any payment when due; (b) Customer breaches any material provision of these Terms and such breach is not cured within thirty (30) days after Customer’s receipt of written notice thereof; (c) Customer becomes insolvent or files or has filed against it a petition in bankruptcy; (d) Customer makes an assignment for the benefit of creditors; or (e) Customer’s financial condition or creditworthiness becomes inadequate or unsatisfactory in Defender’s sole discretion. Customer may terminate these Terms or any Purchase Order, in whole or in part, upon written notice to Defender if Defender breaches any material provision of these Terms and such breach is not cured within thirty (30) days after Defender’s receipt of written notice thereof.

5.3 Effect of Termination. Upon termination or expiration of these Terms: (a) all amounts owed to Defender shall become immediately due and payable; (b) Customer shall immediately cease using any Confidential Information and Intellectual Property Rights of Defender; and (c) Customer shall return or destroy all Confidential Information and Documentation in its possession.

5.4 Survival. The provisions of Sections 4.7, 5.3, 5.4, 7.4 and Articles 6, 8, 9, 10, 11, 12, as well as any other provision that, in order to give proper effect to its intent, should survive termination, shall survive the expiration or earlier termination of these Terms.

6. COMPLIANCE WITH LAWS

6.1 Customer Compliance. Customer shall at all times comply with all laws applicable to these Terms, Customer’s performance of its obligations hereunder, and Customer’s use of the Products. Without limiting the generality of the foregoing, Customer shall: (a) at its own expense, maintain all certifications, credentials, licenses, and permits necessary to conduct its business relating to the purchase, use, or installation of the Products; and (b) not engage in any activity or transaction involving the Products that violates any law.

7. WARRANTIES

7.1 Limited Product Warranty. Subject to the provisions of Sections 7.2 through 7.4, Defender warrants to Customer (the “Product Warranty”) that:

(a) for a period of 3 years from the date of acceptance of a Product (the “Warranty Period”), each Product will materially conform to the Specifications and will be free from significant defects in material and workmanship; and

(b) Customer will receive good and valid title to all Products, free and clear of all encumbrances and liens of any kind.

7.2 Product Warranty Limitations. The Product Warranty does not apply to any Product that:

(a) has been subjected to abuse, misuse, neglect, negligence, accident, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions, or use contrary to any instructions issued by Defender;

(b) has been reconstructed, repaired, or altered by persons other than Defender or its authorized representatives;

(c) has been used with any third-party products, hardware, or materials that have not been previously approved in writing by Defender;

(d) reflects normal wear and tear;

(e) has been damaged by environmental conditions beyond the Products’ specified tolerances, including extreme weather, flooding, fire, or acts of God; or

(f) has been installed by any person other than a licensed and insured contractor with experience installing similar gate or fence products.

7.3 Customer’s Exclusive Remedy for Defective Products. Notwithstanding any other provision of these Terms, this Section 7.3 contains Customer’s exclusive remedy for Defective Products. Customer’s remedy under this Section 7.3 is conditioned upon: (a) Customer notifying Defender, in writing, of any alleged claim or defect within ten (10) business days from the date Customer discovers, or upon reasonable inspection should have discovered, such alleged claim or defect (but in any event before the expiration of the applicable Warranty Period); and (b) Customer shipping, at Customer’s expense and risk of loss, such allegedly Defective Products to Defender’s designated facility for inspection and testing. If Defender’s inspection and testing reveal, to Defender’s reasonable satisfaction, that such Products are Defective, Defender shall, in its sole discretion and at its expense, repair or replace such Defective Products and ship them to Customer. Customer has no right to return for repair, replacement, credit, or refund any Product except as set forth in this Section 7.3. THIS SECTION 7.3 SETS FORTH CUSTOMER’S SOLE REMEDY AND DEFENDER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED PRODUCT WARRANTY.

7.4 DISCLAIMER OF OTHER REPRESENTATIONS AND WARRANTIES. EXCEPT FOR THE PRODUCT WARRANTY SET FORTH IN SECTION 7.1, NEITHER DEFENDER NOR ANY PERSON ON DEFENDER’S BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, EITHER ORAL OR WRITTEN, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. CUSTOMER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY DEFENDER, OR ANY OTHER PERSON ON DEFENDER’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THIS ARTICLE 7.

8. INDEMNIFICATION

8.1 Customer Indemnification. Customer shall indemnify, defend, and hold harmless Defender and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, “Defender Indemnified Parties”) 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 (collectively, “Losses”), arising out of or resulting from any third-party claim alleging:

(a) a breach or non-fulfillment of any representation, warranty, or covenant under these Terms by Customer;

(b) any gross negligence or willful misconduct by Customer in connection with these Terms;

(c) any bodily injury, death of any person, or damage to real or tangible personal property arising out of the acts or omissions of Customer;

(d) any failure by Customer to comply with any applicable laws;

(e) Customer’s use, misuse, or installation of the Products;

(f) site conditions or safety incidents at Customer’s facilities; and

(g) any instructions, designs, or specifications provided by Customer.

8.2 Indemnification Process. The Defender Indemnified Party shall notify Customer promptly in writing of any claim for which it seeks indemnification, and the parties shall cooperate in the defense of such claim; provided, however, that the failure of the Defender Indemnified Party to provide timely notice shall not relieve Customer of any indemnification obligations hereunder except to the extent that such delay results in material prejudice to Customer’s ability to defend such claim.

9. LIMITATION OF LIABILITY

9.1 NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES. IN NO EVENT SHALL DEFENDER OR ITS REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT CUSTOMER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

9.2 MAXIMUM LIABILITY FOR DAMAGES. IN NO EVENT SHALL DEFENDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO DEFENDER PURSUANT TO THE APPLICABLE PURCHASE ORDER GIVING RISE TO THE CLAIM.

9.3 ASSUMPTION OF RISK. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CUSTOMER ASSUMES ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF ANY PRODUCTS, WHETHER IN TERMS OF OPERATING COSTS, GENERAL EFFECTIVENESS, SUCCESS OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY DEFENDER, BY WAY OF TECHNICAL ADVICE OR OTHERWISE, RELATED TO THE USE OF THE PRODUCTS.

9.4 WAIVER OF CLAIMS FOR PERSONAL INJURY AND PROPERTY DAMAGE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER HEREBY WAIVES, RELEASES, AND DISCHARGES DEFENDER AND THE DEFENDER INDEMNIFIED PARTIES FROM ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION, AND LIABILITY ARISING OUT OF OR RELATED TO PERSONAL INJURY, BODILY INJURY, DEATH, OR PROPERTY DAMAGE RESULTING FROM: (A) THE INSTALLATION, OPERATION, MAINTENANCE, OR USE OF THE PRODUCTS; (B) ANY FAILURE TO FOLLOW DEFENDER’S DOCUMENTATION, INSTRUCTIONS, OR WARNINGS; (C) ANY MODIFICATION, ALTERATION, OR REPAIR OF THE PRODUCTS NOT PERFORMED OR AUTHORIZED BY DEFENDER; (D) THE FAILURE TO INSTALL OR MAINTAIN REQUIRED SAFETY DEVICES; OR (E) THE USE OF THE PRODUCTS IN A MANNER NOT INTENDED OR AUTHORIZED BY DEFENDER. THIS WAIVER IS INTENDED TO BE AS BROAD AND INCLUSIVE AS PERMITTED BY LAW AND SHALL APPLY REGARDLESS OF THE NEGLIGENCE OR FAULT OF DEFENDER.

9.5 PRODUCT SAFETY ACKNOWLEDGMENT. CUSTOMER ACKNOWLEDGES THAT THE PRODUCTS, INCLUDING GATES, AND RELATED COMPONENTS, ARE LARGE, HEAVY, AND MECHANICALLY OPERATED EQUIPMENT THAT POSE INHERENT RISKS OF SERIOUS BODILY INJURY OR DEATH IF IMPROPERLY INSTALLED, OPERATED, MAINTAINED, OR USED. CUSTOMER ASSUMES FULL RESPONSIBILITY FOR ENSURING THAT: (A) ALL PRODUCTS ARE INSTALLED BY QUALIFIED PERSONNEL IN ACCORDANCE WITH DEFENDER’S DOCUMENTATION, APPLICABLE BUILDING CODES, AND INDUSTRY SAFETY STANDARDS; (B) ALL REQUIRED SAFETY DEVICES, INCLUDING SENSORS, PHOTO-EYES, ENTRAPMENT PROTECTION SYSTEMS, AND WARNING SIGNAGE, ARE PROPERLY INSTALLED AND MAINTAINED; (C) ALL PERSONS WHO OPERATE, MAINTAIN, OR INTERACT WITH THE PRODUCTS ARE ADEQUATELY TRAINED AND INFORMED OF THE ASSOCIATED RISKS; AND (D) PERIODIC INSPECTIONS AND MAINTENANCE ARE PERFORMED AS SPECIFIED IN THE DOCUMENTATION.

9.6 ESSENTIAL ELEMENT. THESE LIMITATIONS AND EXCLUSIONS APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW AND ARE FUNDAMENTAL ELEMENTS OF THE BARGAIN REFLECTED IN DEFENDER’S PRICING.

10. INTELLECTUAL PROPERTY RIGHTS

10.1 Ownership. Customer acknowledges and agrees that:

(a) Defender (or its licensors) shall retain all Intellectual Property Rights used to create, embodied in, used in, and otherwise relating to the Products and any of their component parts;

(b) any and all Defender’s Intellectual Property Rights are the sole and exclusive property of Defender or its licensors;

(c) Customer shall not acquire any ownership interest in any of Defender’s Intellectual Property Rights under these Terms; and

(d) if Customer acquires any Intellectual Property Rights in or relating to any Product (including any rights in any trademarks, derivative works, or patent improvements relating thereto), by operation of law or otherwise, such rights are deemed and are hereby irrevocably assigned to Defender or its licensors, as the case may be, without further action by either party.

10.2 Prohibited Acts. Customer shall not:

(a) take any action that interferes with any of Defender’s rights in or to Defender’s Intellectual Property Rights, including Defender’s ownership or exercise thereof;

(b) challenge any right, title, or interest of Defender in or to Defender’s Intellectual Property Rights;

(c) register or apply for registrations, anywhere in the world, for Defender’s trademarks or any other trademark that is similar to Defender’s trademarks or that incorporates Defender’s trademarks;

(d) engage in any action that tends to disparage, dilute the value of, or reflect negatively on the Products or any Defender trademark; or

(e) alter, obscure, or remove any of Defender’s trademarks or trademark or copyright notices or any other proprietary rights notices placed on the Products, marketing materials, or other materials that Defender may provide.

11. CONFIDENTIALITY

11.1 Protection and Use. Customer shall protect Defender’s Confidential Information using at least the same degree of care it uses to protect its own similar information, but no less than reasonable care. Customer shall use Defender’s Confidential Information only as necessary to perform under these Terms and shall not disclose it to any third party except to its employees and contractors who have a need to know and are bound by confidentiality obligations at least as protective as those herein. The obligations do not apply to information that is or becomes publicly available without breach of these Terms, was rightfully known to Customer without confidentiality obligations, was independently developed without use of Confidential Information, or was rightfully received from a third party without restriction on confidentiality.

11.2 Return or Destruction. Upon Defender’s written request or upon termination or expiration of these Terms, Customer shall promptly return or destroy all Confidential Information (including all copies) and certify such destruction in writing.

12. MISCELLANEOUS

12.1 Relationship of the Parties. Defender and Customer are independent contracting parties. Nothing in these Terms creates any agency, joint venture, partnership, or other form of joint enterprise, employment, or fiduciary relationship between the parties. Neither 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.

12.2 Entire Agreement. These Terms, including and together with the basic purchase order terms in any Purchase Order and any related exhibits and schedules, constitute the sole and entire agreement of the parties with respect to the subject matter contained herein and therein and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.

12.3 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder must be in writing and addressed to the other party at its address set forth in the applicable Purchase Order (or to such other address that the receiving party may designate from time to time in accordance with this Section). All notices must be delivered by personal delivery, nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested, postage prepaid). A notice is effective only on receipt by the receiving party.

12.4 Severability. If any term or provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability does not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.

12.5 Amendment and Modification. No amendment to these Terms is effective unless it is in writing, identified as an amendment to these Terms, and signed by an authorized representative of both parties.

12.6 Waiver. No waiver under these Terms is effective unless it is in writing, identified as a waiver to these Terms, and signed by an authorized representative of Defender. Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated, and does not operate as a waiver on any future occasion.

12.7 Cumulative Remedies. All rights and remedies provided in these Terms are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties, or otherwise.

12.8 Equitable Remedies. Customer acknowledges and agrees that (a) a breach or threatened breach by Customer of any of its obligations under Article 10 or Article 11 would give rise to irreparable harm to Defender for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by Customer of any such obligations, Defender shall, in addition to any and all other rights and remedies that may be available to it at law, at equity, or otherwise in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy.

12.9 Assignment. Customer may not assign any of its rights or delegate any of its obligations under these Terms without the prior written consent of Defender. Defender may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of Defender’s assets. Any purported assignment or delegation in violation of this Section is null and void.

12.10 No Third-Party Beneficiaries. These Terms benefit solely the parties hereto and their respective permitted successors and permitted assigns, and nothing in these Terms, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.

12.11 Governing Law. These Terms, including all exhibits, schedules, attachments, and appendices attached hereto, and all matters arising out of or relating to these Terms, are governed by and construed in accordance with the laws of the State of California, without regard to the conflict of laws provisions thereof. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.

12.12 Choice of Forum. Each party irrevocably and unconditionally agrees that it shall not commence any action, litigation, or proceeding of any kind whatsoever against the other party in any way arising from or relating to these Terms in any forum other than the state or federal courts located in Rancho Cordova, California and any appellate court from any thereof. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in such courts.

12.13 Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THESE TERMS, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THESE TERMS, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THESE TERMS, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THESE TERMS, OR THE TRANSACTIONS CONTEMPLATED HEREBY.

12.14 Force Majeure. Defender shall not be liable or responsible to Customer, or be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any term of these Terms (except for any obligations of Customer to make payments to Defender hereunder), when and to the extent such failure or delay is caused by or results from acts beyond Defender’s reasonable control, including acts of God, flood, fire, earthquake, epidemic, pandemic, explosion, war, invasion, hostilities, terrorist threats or acts, riot or other civil unrest, government order, law, or actions, embargoes or blockades, national or regional emergency, strikes, labor stoppages or slowdowns, or other industrial disturbances, telecommunication breakdowns, power outages or shortages, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials.

12.15 Publicity and Marketing. Defender may use Customer’s name, logo, and trademarks in Defender’s marketing and promotional materials, including on its website, in presentations, and in customer lists, to identify Customer as a customer of Defender. Defender may also issue a press release or public announcement regarding the parties’ business relationship. Customer may request in writing that Defender cease such use, and Defender shall comply with such request within thirty (30) days; provided, however, that Defender may continue to use Customer’s name in factual references to past business relationships.