Purchase Order Terms and Conditions

Except to the extent the Goods and Services defined herein are provided subject to a separate written agreement:

1. DEFINITIONS

“Confidential Information” means information disclosed to or discovered by Vendor that should reasonably be understood to be confidential by its mark, identification, nature, or the circumstances under which it is disclosed, excluding information which is: (i) made generally available to the public; (ii) rightfully provided by a third party without restriction as to its ongoing use or disclosure; or (iii) independently developed without access to the information. “Goods” means all deliverables of any type, tangible or intangible, to be provided hereunder. “PO” means WP Engine’s purchase order accompanying the Terms and Conditions. “Services” means all work, consulting, and other services of any type to be provided hereunder. “Specifications” means the instructions or information provided by WP Engine in order that Vendor may design, develop, configure, manufacture, or provide the Goods and Services. “Terms and Conditions” means these terms and conditions. “Vendor” means the vendor identified in the PO who is providing the Goods and Services to WP Engine, and shall include such vendors’ representatives, subsidiaries, and affiliates. “WP Engine” means WP Engine, Inc., its representatives, subsidiaries, and affiliates.

2. AGREEMENT

The Terms and Conditions, PO, and signed order or statement of work describing the Goods and Services constitute the entire agreement between the parties with regard to the subject matter hereof. In the event of a conflict, the Terms and Conditions shall govern. Any amendment, supplement, or contradicting term or terms shall be deemed void and of no force or effect unless set forth in a written, mutually executed agreement. Vendor hereby accepts this PO and agrees to be bound by these Terms and Conditions upon its written acknowledgment of the PO or delivery, shipping confirmation, or provision of all or part of the Goods and Services.

3. FEES

The fees stated herein: (i) are exclusive of all taxes, duties, charges, and other types of fees except as expressly noted; (ii) are no greater than those provided in any previous quote, estimate, statement of work, or other supporting documentation, or to similarly situated customers for the same or similar goods and services; and (iii) will not be increased for a period of 24 months. WP Engine will be entitled to a reduction in fees at any point that Vendor offers a lower price to any similarly situated customer.

4. DELIVERY

All shipped Goods will be prepared and shipped in a commercially reasonable and industry standard manner, at competitive rates, and accompanied by an itemized packing slip attached to the outside of the package. Packing slips must include the appropriate PO number and a description and quantity of the Goods shipped. Additional documentation may be required at WP Engine’s request. All deliveries must be received on the date set out and at the destination set forth in the PO. If delivery is not completed within the time specified, WP Engine reserves the right, without liability and in addition to any other rights and remedies it may have, to cancel all or part of the PO or to accept the delayed delivery and extend its payment by the same period of time. If timely delivery is at risk, WP Engine will have the right to direct Vendor to make shipment by the most expeditious means at Vendor’s sole cost. No partial or complete delivery will be made hereunder prior to the date shown unless WP Engine has given prior written consent. WP Engine will pay only for maximum quantities ordered as per the PO. Over-shipments will be held at Vendor's risk and expense for a reasonable time while WP Engine awaits shipping instructions from Vendor. Notwithstanding any prior inspections, and irrespective of the destination named herein, Vendor bears all risk of loss, damage, and destruction to the shipped goods until final acceptance by WP Engine. Vendor bears the same risks with respect to any goods rejected by WP Engine or as to which WP Engine has revoked its acceptance, from the time of such rejection or revocation. Title and risk of loss will pass to WP Engine upon final acceptance.

5. ACCEPTANCE

Payment for Good and Services shall not be deemed acceptance. Regardless of the form or contents of any receipt given by Vendor at the time of delivery, and despite any payment by WP Engine, all Goods will be subject to inspection by WP Engine for 180 days from delivery. If any portion of the Goods do not meet the requirements of this PO, WP Engine will have the right to reject the nonconforming Goods or the entire shipment, at its discretion. If WP Engine accepts any nonconforming Goods, it will be entitled to a commensurate reduction in price. In the event of rejection, Vendor will be responsible for the removal of the rejected Goods at its cost within a reasonable time.

6. TERMINATION

WP Engine may terminate this PO for convenience, in whole or in part, upon 5 days written notice. WP Engine may terminate this PO for cause upon Vendor’s insolvency, bankruptcy, or breach of these Terms and Conditions which is not cured within 10 days of WP Engine’s notice. As of the date of termination, Vendor will stop all work pursuant to this PO. WP Engine will only pay for Goods it has accepted and Services satisfactorily performed through the termination date.

7. INTELLECTUAL PROPERTY

Except to the extent explicitly described herein, neither party transfers title or confers any right or license to its Confidential Information or to any copyright, patent, trademark, trade secret, or other intellectual property of any kind. Vendor may use the Specifications solely as required to provide the Goods and Services to WP Engine. WP Engine owns and shall own all rights and interest in: (i) the Specifications; and (ii) the Goods and Services to the extent based on the Specifications. For those intellectual property rights retained by Vendor, Vendor hereby provides WP Engine full right and license (worldwide, fully paid, perpetual) as required to use and enjoy the Goods and Services to the full extent contemplated herein.

8. CONFIDENTIAL INFORMATION

Vendor will provide strict protection for the Confidential Information, no less than the protection provided to its own confidential information of similar type. Vendor may only use or disclose Confidential Information in connection with its performance hereunder; as allowed in writing by WP Engine; or as required by law, subpoena, or court order.

9. WARRANTIES

Time is of the essence. Vendor warrants that all Goods and Services will be: (i) delivered on time; (ii) in accordance with Vendor’s representations and the Specifications; (iii) of good and merchantable quality, free from defect, and sufficient for the use intended by WP Engine; and (iv) free and clear of any lien or other adverse claim against title. These warranties shall survive inspection, test, acceptance, and run to WP Engine, its successors, assigns, and to the users of WP Engine’s products and services if applicable. Vendor will comply with all laws and regulations in the manufacture and sale of the Goods and in the performance of Services. Vendor will comply with all export control laws and regulations and provide WP Engine with a certificate of origin and, for Goods wholly or partially manufactured outside of the United States, all required United States Customs documentation. If applicable, Vendor understands the nature of any hazards associated with the manufacture, handling, and transportation of hazardous materials. Vendor makes the above representations and warranties on behalf of itself and the subcontractors, independent contractors, or other persons or entities providing any part of the Goods and Services.

10. DISCLAIMERS

EXCEPT FOR ITS PAYMENT FOR GOODS AND SERVICES OR TO THE EXTENT PROHIBITED BY LAW, WP ENGINE SHALL HAVE NO LIABILITY WHATSOEVER UNDER ANY CAUSE OF ACTION RELATED TO THESE TERMS AND CONDITIONS. WP ENGINE EXPLICITLY REJECTS AND SHALL NOT BE LIABLE FOR ANY CANCELLATION CHARGES, LATE FEES, PENALTIES, OR LIQUIDATED DAMAGES.

11. INDEMNIFICATION

Vendor will defend, indemnify, and hold WP Engine harmless from and against any and all damages, losses, liabilities, and expenses (including attorneys' fees) arising from: (i) the Goods and Services; (ii) Vendor's negligence, willful misconduct, failure to comply with Section 14, or other breach of the Terms and Conditions; or (iii) any claim of mechanic's lien or other encumbrance made by a third party. In addition, if WP Engine’s use of the Goods and Services is enjoined, threatened by injunction, or subject to any legal proceeding, Vendor will, at its sole cost and expense: (a) substitute fully equivalent noninfringing Goods and Services; (b) modify the Goods and Services so that they no longer infringe but remain fully equivalent in functionality; (c) obtain for WP Engine the right to continue using the Goods and Services; or (d) if none of the foregoing is possible, refund all amounts paid for the infringing Goods and Services.

12. INSURANCE

Vendor will carry and maintain, at its own expense, insurance of the following types and amounts: (i) comprehensive general liability in the amount of $2,000,000 per occurrence and $5,000,000 in aggregate (or the equivalent amounts in the applicable local currency); and (ii) any other insurance reasonably required to cover its obligations herein or as required by law. Vendor will include WP Engine as an additional insured under the required liability coverages, and such insurance will be primary and noncontributory with respect to any insurance maintained by WP Engine. Upon request, Vendor will furnish evidence of such insurance in a form satisfactory to WP Engine.

13. GOVERNING LAW; VENUE

The Terms and Conditions are governed by the laws of the State of Texas without regard to its choice of law statutes. Any disputes must be brought in the state or federal courts located in Travis County, Texas.

14. INDEPENDENT CONTRACTOR

Nothing contained herein shall be construed to create an employer-employee relationship, partnership, or joint venture. Neither party has authority or agency to act, enter into any contract, or incur any liability on behalf of the other. Vendor must meet the deadlines and other requirements herein but has the exclusive right to control and direct the details of how to do so. Vendor will provide its own equipment and tools. Vendor is not entitled to any benefits that are provided by WP Engine to its employees. Vendor may not use subcontractors without WP Engine’s prior written consent. Prior to commencing the Services, Vendor must complete and submit a Form W-9. Vendor is responsible for filing all tax returns, tax declarations, and tax schedules, and for the payment of all taxes resulting from fees or other compensation. Vendor assumes full responsibility and legal obligation for its employees and subcontractors and for the payment of their salary and other benefits. WP Engine will not withhold any employment taxes from Vendor’s fees. WP Engine will report the amount it pays Vendor on IRS Form 1099 to the extent required to do so by law.

15. NOTICE

Vendor will immediately notify WP Engine of any discovered defect in the Goods and any delay or threatened delay in its performance of the Services. Such notice will not relieve Vendor of its obligations herein. Any notice provided in relation to the PO will be effective upon delivery, as indicated by a delivery receipt, to the address set forth in the PO. 16. MISCELLANEOUS Vendor may not assign any part of its obligations without WP Engine’s prior written consent. WP Engine will have the right to inspect and audit Vendor's books, records, and systems at all reasonable times with 5 days written notice for the purpose of determining the correctness and propriety of amounts billed. Any provision herein held to be illegal or unenforceable will be effective only up to the extent of such illegality or unenforceability, shall be restated to the extent possible to reflect the parties’ intent, and will have no effect on the remaining provisions herein. No waiver will be effective unless provided in writing. Sections 1, 2, and 7–16 shall survive any termination or expiration of these Terms and Conditions.