Class 8 General Terms and Conditions of Purchase
1. The Agreement.
1.1 Offer and Acceptance. Each purchase order that Xos Services, Inc. ("Xos") issues ("Purchase Order") is Xos's offer to purchase vehicles and materials (collectively, "Products") identified in that Purchase Order issued to supplier, including its applicable affiliates and subsidiaries ("Supplier"). Supplier will be deemed to have accepted a Purchase Order as issued by shipping Products, performing services, commencing work under the Purchase Order, written acknowledgement of the Purchase Order, failing to reject the Purchase Order within ten (10) calendar days, or any other conduct evidencing acceptance. Xos may withdraw the Purchase Order at any time before it is accepted by Supplier. Upon acceptance, the Purchase Order together with these General Terms and Conditions of Purchase ("General Terms") and any other documents specifically incorporated in the Purchase Order or separately agreed to in writing (including without limitation, specifications, technical or commercial information relating to the design, development, manufacture, or delivery of the Products "Specifications"), will become a binding contract between Xos and Supplier (collectively, the "Agreement"). In the event of conflict between any Purchase Order, Request for Proposal, and these General Terms, the General Terms shall prevail followed by the Purchase Order.
1.2 Changes.
(a) Xos reserves the right to modify or cancel any Purchase Order at any time prior to delivery to and acceptance of the Products by Xos without liability to Supplier.
(b) Supplier will not make any change to the Products except at Xos's written instruction or with Xos's written approval.
1.3 Variations in Quantity. Xos, at Xos's sole discretion, may reduce the quantity of purchased Products at any time prior to delivery to and acceptance of the Products by Xos without liability to Supplier.
2. Products and Services.
2.1 Quantity. If quantities or delivery schedules are not specified in the Agreement, they will be as reasonably determined by Xos. Unless otherwise specifically stated in the Agreement, the Agreement is not exclusive and Xos may purchase similar products and services from third parties.
2.2 Inspection. Xos, at Xos's sole discretion may inspect the materials and/or Products at Supplier's facilities, Xos's facilities, or any third-party delivery or storage facilities. Upon Xos's approval, Supplier, at Supplier's sole cost and expense may observe the delivery inspection by Xos. Supplier shall timely notify Xos (but no later than seven (7) days prior to a scheduled delivery inspection) if Supplier desires to observe Xos's delivery inspection. If Xos identifies any shortage, loss, excess, or damage during the delivery inspection, Supplier shall, at Supplier's sole cost and expense (such costs including without limitation and in accordance with the other terms of the Agreement, expedited shipping, export packing, handling, and transportation costs to the delivery location) immediately repair and/or replace the materials and/or Products necessary to restore such shortage, loss or damage. The determination by Xos as to shortage, loss, or damage shall be binding upon Supplier. Any excess found at the time of an unpacking inspection shall not be deemed to substitute for the shortage, loss, or damage and may be returned to Supplier at Supplier's cost. Xos may accept or reject any delivery in whole or in part that does not fully comply with any Purchase Order (including without limitation, any delivery that exceeds the quantity of an order, differs in the type of materials and/or Products scheduled for delivery, or quantities or quality that does not comply with order Specifications).
2.2 Xos and Industry Standards and Policies. Supplier will conform to all quality control and other standards and inspection systems as may be established or directed by Xos for the Products as well as each requirement under applicable law. Such quality control and other standards include, without limitation, quality control policies, ISO/TS quality systems, OHSAS 18001 health and safety certification and ISO 14001 environmental certification including registration, and GADSL / RoHS.
2.3 Service Parts and Safety Stock.
(a) Service Parts. Supplier will sell Products to Xos or an Xos authorized purchasers to fulfill service requirements. Unless otherwise agreed in writing by Xos, the Parties shall negotiate in good faith the price(s) for Products for the service requirements. Xos or Xos authorized purchasers shall have the option to designate a different delivery location for service parts.
(b) If Xos or an Xos authorized purchaser desires to purchase components or parts of Products, Supplier will sell such components or parts at an equitable price that reflects the cost of the component or part less assembly costs, plus a markup commensurate with that on the related Product and any actual cost differential for packaging and assembly or manufacturing.
3. Delivery.
3.1 Packing and Shipment. Xos may specify the method of transportation and the type and number of packing slips and other documents to be provided with each shipment. Supplier shall mark, pack, and ship Products in accordance with Xos' general shipping instructions (including, without limitation, shipping instructions pertaining to labeling, marking and hazardous materials) and any and all additional shipping instructions or requirements that Xos may include with a Purchase Order. If Xos has not provided packing or shipping instructions, Supplier will pack and ship Products in accordance with industry best practices.
3.2 Delivery Schedules. Supplier will deliver Products in strict accordance with the Agreement terms, including in the quantities and at the times specified in the Purchase Order issued by Xos (the "Delivery Date") in accordance with Xos's instructions ("Shipping Instructions"). Time and quantity of delivery are of the essence. In the event of a delay or anticipated delay from any cause, including, but not limited to, Force Majeure (defined below), Supplier shall immediately notify Xos of the delay or anticipated delivery delay, and shall undertake to shorten or make up the delay by all possible means. If Supplier fails to meet the Delivery Date or progress requirements established in the Agreement without Xos's prior approval, Xos may cancel all or any part of the Agreement without charge to Xos, and without prejudice to any rights Xos may have under the Agreement. Unless otherwise stated in the Agreement, Products will be delivered DDP Xos's designated facility (Incoterms 2020) and title will transfer upon receipt of the Products by Xos. If Products are not made ready by Supplier for delivery in time to meet Xos's Delivery Date, Supplier will be responsible for additional costs, fees, damages and expenses incurred by Xos, including but not limited to any resulting expedited freight or other special transportation costs. If Supplier fails to deliver the Products in full on the Delivery Date, Xos may terminate the Purchase Order immediately by providing written notice to Supplier and Supplier will indemnify Xos against any losses, claims, damages, and reasonable costs and expenses directly attributable to Supplier's failure to deliver the Products on the Delivery Date. Xos will not be required to remit payment for Products delivered to Xos that are in excess of the firm quantities and delivery schedules. Xos has the right to return any Products delivered prior to the Delivery Date at Supplier's expense and Supplier will redeliver such Products on the Delivery Date. Supplier will give written notice of shipment to Xos when the Products are delivered to a carrier for transportation. Supplier will provide Xos all shipping documents, including the commercial invoice, packing list, air waybill/bill of lading and any other documents necessary to release the Products to Xos within three (3) business days after Supplier delivers the Products. The Purchase Order number must appear on all shipping documents, shipping labels, bills of lading, air waybills, invoices, correspondence and any other documents pertaining to the Purchase Order.
3.3 Location. All Products will be delivered to the address specified in the Purchase Order (the "Delivery Location") during Xos's normal business hours or as otherwise instructed by Xos.
4. Taxes.
Unless otherwise stated in the Agreement, the Agreement price includes all applicable federal, state, provincial, and local taxes, transportation taxes, or other tax, including but not limited to customs, duties and tariffs, other than sales, value added, or similar turnover taxes or charges.
5. Payment.
5.1 Price. The purchase price of the Products shall be stated on the Purchase Order. Unless otherwise stated in the Agreement, the purchase price: (a) is a firm fixed price for the duration of the Agreement and not subject to increase for any reason; (b) is inclusive of all taxes as provided in Section 4 and any customs, tariffs and duties applicable to provision of the Products; and (c) is inclusive of all storage, handling, packaging and all other expenses and charges of Supplier.
5.2 Invoices. Unless otherwise stated in the Agreement, Supplier will issue invoices on or after delivery of the Products to Xos and Xos's payment will be deemed to occur upon mailing of a check to Supplier or, alternatively, upon successful initiation of an ACH Transfer, a Wire Transfer, or an EFT Payment to Supplier from Xos to the account designated by Supplier for which payment is to be made. All payment will be made in the currency of the country of origin unless otherwise agreed. Supplier will, at its expense, comply with Xos's instructions and policies with respect to the form, content and method for submission of invoices.
5.3 Payment Terms. Unless otherwise stated in the Agreement, Xos will pay invoices for Products which are properly presented and not subject to dispute, no later than sixty calendar (60) days from the receipt of the Products with required support. If the date that is sixty calendar (60) days from the date the Products are received falls on a holiday or weekend, Xos may transfer payment on the next business day.
5.4 Best Price. The Supplier warrants that the prices for the Products sold to Xos are no less favorable to Xos than those that Supplier currently extends to any other customer for the same or similar Products in similar quantities. If Supplier reduces its prices to third parties on the same or similar products during the term of the Purchase Order for the Products, Supplier will correspondingly reduce the prices charged to Xos.
5.5 Set Off. In addition to any right of setoff or recoupment provided by law, all amounts due Supplier, or any of its affiliates or subsidiaries, will be considered net of indebtedness or payment obligations of Xos, or any of its affiliates or subsidiaries. Xos will be entitled at any time to set off or recoup against sums payable by Xos or any of its affiliates or subsidiaries to Supplier or any of its affiliates or subsidiaries any amounts for which Xos determines in good faith. Supplier or any of its affiliates is liable to Xos or any of its affiliates. Xos will consult with Supplier prior to any such set off or recoupment.
5.6 Payment Not Acceptance. Payment for Products will not constitute acceptance of nonconforming Products, nor will it limit or affect any rights or remedies of Xos.
5.7 Credits. Credits or benefits resulting from the Agreement, including trade credits, export credits or the refund of duties, taxes, or fees, belong to Xos. Supplier will provide all information and certificates (including, without limitation, USMCA Certificates of Origin) necessary to permit Xos to receive these benefits or credits.
6. Product Warranties.
6.1 Supplier Warranties.
(a) All Products. Supplier warrants to Xos and its respective successors and assigns and all end-user customers of Xos that the Product will:
strictly conform to all Specifications, warranty, manuals, drawings, samples and other descriptions furnished to or by Xos;
conform with all industry standards, laws and regulations in force in countries where such Products or vehicles equipped with such Products are to be sold;
be free from defects in design, material and workmanship, merchantable and will be new and of the highest quality;
be free of all malware, viruses and all other malicious code, disabling code, or code that causes either the Product or any product into which the Product is incorporated to perform in an unintended manner; and
be free and clear of all liens, claims or other encumbrances, and that Supplier is conveying good title to Xos.
(b) Additional Warranty of Fitness Where Xos Relies on Supplier. In addition to the warranties in Section 6.1(a), where Xos is relying on Supplier's skill or judgment in selecting which Products to buy for a particular purpose or end-user customer and Supplier is aware of that purpose or end-user customer, Supplier further warrants to Xos and its respective successors and assigns that the Product will be selected, designed, manufactured and assembled by Supplier based upon Xos's stated use and be fit and sufficient for the purposes intended by Xos.
(c) Services. For all services, Supplier further warrants that its work will be performed in a professional and workmanlike manner, consistent with all standards and specifications agreed on with Xos and otherwise consistent with industry standards. Time is of the essence for all services.
(d) Future Performance. All warranties of Supplier extend to future performance of the Product and are not modified, waived or discharged by delivery, inspection, tests, acceptance and payment.
(e) Warranty Period. The warranty period for Products is five (5) years from the date Xos's end-user customer accepts the product or 400,000 miles, whichever occurs first. For Products used to fulfill product service requirements and past product service and replacement requirements, the duration of Supplier's warranty period will be the greater of: eighteen (18) months from the date of delivery to Xos's end-user customer, or the remainder of the warranty period offered for the products into which the Products are incorporated.
(f) Application of Warranties. Supplier agrees that the warranties set forth herein, and otherwise made, express or implied, by law or equity, extend to all Products and end-user customers of the Products.
6.2 Rejection. Xos, at its sole option, may inspect all or a sample of the Products, and may reject all or any portion of the Products if it determines the Products are nonconforming or defective. If Xos rejects any portion of the Products, Xos has the right, effective upon written notice to Supplier, to: (a) rescind the Purchase Order in its entirety; (b) accept the Products at a reasonably reduced price; or (c) reject the Products and require replacement of the rejected Products. If Xos requires replacement of the Products, Supplier will, at its expense, promptly replace the nonconforming Products and pay for all related expenses, including, but not limited to, expedited transportation charges for the return of the defective goods and the delivery of replacement Products. Any inspection or other action by Xos under this Section will not reduce or otherwise affect Supplier's obligations under the Purchase Order, and Xos will have the right to conduct further inspections after Supplier has carried out its remedial actions.
6.3 Xos Losses. Supplier is liable for all direct, incidental and consequential damages, losses, costs, and expenses incurred by Xos resulting from Supplier's failure to deliver conforming and non-defective Products or to comply with the shipping and delivery or other requirements of Xos, even if Supplier has cured the failure. This includes but is not limited to compensating Xos for:
any amounts charged by end-user customer(s) to Xos;
all costs of inspection, containment, sorting, repair, replacement, cure, cover, or any other costs incurred by Xos, determined in such manner and in such amount as reasonably determined by Xos; and
all costs of any recall campaign, corrective service action, or other voluntary or involuntary action in which Xos or any end-user customer participates related to the Products.
6.4 Corrective Action. Promptly upon learning of defective or non-conforming Products, Supplier will develop, document and implement corrective actions in accordance with all applicable quality control policies and standards of Xos. Supplier will immediately notify Xos in writing when it becomes aware of any ingredient, component, design or defect in the Products that is or may become harmful to persons or property. Supplier is obligated to provide all reasonable support requested by Xos to immediately investigate, address and correct concerns regarding quality, defects or nonconforming of Products supplied.
7. Product Liability.
7.1 Indemnification. Supplier agrees to indemnify, defend and hold harmless, reimburse and compensate Xos, its agents, affiliates, customers and users of the Products sold by Xos and all of their respective agents, successors and assigns, and each of their shareholders, directors, officers, employers and agents, on demand, (collectively "Indemnified Parties") from and against any and all costs, fees, penalties, expenses, damages (consequential and otherwise), attorneys' fees and all other liabilities and obligations whatsoever ("Losses"), arising out of any claim or any other demand, requirement, or source of exposure to liability or potential liability, which, in whole or in part, arises from or relates to any actual or alleged:
defect or non-conformity in the Products;
noncompliance by Supplier with any of its representations, warranties or obligations under the Agreement;
negligence or fault of Supplier in connection with the Products;
recall campaign, corrective service action, or other voluntary or involuntary action in which Xos participates with respect to the Products;
any spill, discharge or emission of hazardous wastes or substances which relates, in whole or in part, to the Products;
infringement (including claims of direct or contributory infringement or inducement to infringe) of any Intellectual Property Right relating to Products provided by Supplier, even if they are made to Xos's specifications; or
damages to the property of or personal injuries to Xos, its end-user customers, their respective agents, or any other person or entity to the extent arising from or in connection with the Product or Supplier's work on Xos' premises or Supplier's use of Xos' property.
7.2 Xos Participation. If Supplier is obligated to indemnify under this Section, then Xos may at its option participate in the defense of any claim with its own counsel, at Supplier's expense.
7.3 Limitations. To the maximum extent permitted by applicable law, Supplier's obligation under this Section will apply even as to Losses caused in whole or in part by an Indemnified Party's negligence, but Supplier's indemnification will not apply to the extent that Losses resulted solely and directly from the gross negligence or willful misconduct of such Indemnified Party. Supplier's obligation to defend and indemnify under this Section will also apply regardless of whether the claim arises in tort, negligence, contract, warranty, strict liability or otherwise. The indemnification obligation under this Section will not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the benefit of Supplier under Workers' Compensation Acts, occupational disease acts, disability benefits acts or other employee benefits acts.
8. Compliance with Laws.
Supplier will comply with applicable laws, rules and regulations of the jurisdictions where the Products are manufactured and sold, or the services are performed. Supplier will provide Xos with material safety data sheets regarding the Products and, upon Xos's request, will provide Xos with other information reasonably required in order to comply with applicable laws.
9. Intellectual Property Rights.
9.1 Warranty. Supplier warrants that, the Products and the sale and/or use thereof do not and will not infringe any Intellectual Property Rights. "Intellectual Property Rights" means any right arising under U.S. or foreign law relating to patent, trademark, copyright, moral, industrial design rights or misuse or misappropriation of trade secrets.
9.2 License to Xos. Supplier hereby grants to Xos, its subsidiaries and affiliates, and their respective successors and assigns, and Xos hereby accepts, a perpetual, non-exclusive, irrevocable, royalty-free, fully paid up worldwide license, including the right to sublicense to others in connection with providing the Products to Xos, under: (i) any Intellectual Property Rights owned or controlled by Supplier or its affiliates, and relating to the Products, to make, have made, repair, reconstruct, rebuild, relocate, use, sell and import the Products, and (ii) any works of authorship fixed in any tangible medium of expression (including drawings, prints, manuals and specifications) furnished by Supplier in the course of Supplier's activity under this Agreement, to reproduce, distribute and display such works and to prepare derivative works based thereon, subject to the other provisions of the Agreement (all items in clauses (i) and (ii) above, collectively, "Supplier's Intellectual Property," and such license in respect thereof, the "License"). Supplier acknowledges and understands that the License will be effective from the first date of delivery of the Products under this Agreement. The License is intended to be subject to 11 USC Section 365(n), as an executory agreement under which Xos has license rights to Supplier's Intellectual Property, and is supplementary to any other rights of Xos under this Agreement and any other agreement with Supplier.
9.3 Supplier Employees. Supplier will ensure that the terms of its contracts with its subcontractors and employees are consistent with the terms of this Section.
10. Duration and Termination of the Agreement.
10.1 Duration. The Agreement (a) will commence on the date specified in the Purchase Order, or if no date is specified, when issued by Xos and (b) shall continue for a period of twelve (12) months. This Agreement shall automatically renew for consecutive periods of twelve (12) months, unless earlier terminated upon sixty (60) days prior written notice to the nonterminating party. For any Purchase Order release entered into during the term of this Agreement, the terms of the Purchase Order release shall survive any termination of this Agreement for the duration of such Purchase Order release. In the event of any termination or expiration of this Agreement, Sections 5 – 14 and 16 – 19 shall survive such termination or expiration of this Agreement indefinitely.
10.2 Termination by Xos. Xos at its sole discretion may terminate all or any part of a Purchase Order, with or without cause, at any time by giving prior notice to Supplier. Termination by Xos in accordance with this provision shall not constitute a breach of the Purchase Order, entitle Supplier to any damages or claims except as expressly provided in the Purchase Order, or relieve Supplier of any liability under the Agreement.
11. Default.
11.1 Events of Default. Time is of the essence and, subject to in conjunction with and notwithstanding any other term of the Agreement regarding Xos's right to terminate the Agreement in the event of a Default by Supplier as defined therein, either party will be in "Default" under the Agreement if it (a) fails to perform any obligation under the Agreement and, if the non-performance can be cured, fails to cure the non-performance within ten (10) business days after notice from the other party specifying the non-performance, (b) admits in writing its inability to pay its debts as they become due, commences a bankruptcy, insolvency, receivership, or similar proceeding, or makes a general assignment for the benefit of creditors, (c) becomes a debtor in a bankruptcy, insolvency, receivership, or similar proceeding commenced by a third party that is not dismissed within thirty (30) calendar days after commencement, or (d) fails to provide adequate assurance of performance under the Agreement within three business days after written demand by the other party.
11.2 Remedies and Damages.
(a) Subject to the limitations in this Section 11.2, either party may exercise the remedies provided in this Section 11.2, which are cumulative and are in addition to all other rights and remedies available elsewhere in the Agreement or by law.
(b) Either party may recover from the other party its actual out-of-pocket damages or costs directly caused by the other party's breach of the Agreement, regardless of whether the breach subsequently becomes a Default with the passage of time or giving of notice or both. All damages will be reasonably determined based on the nature, type, price and profitability of the Products, industry practices, and the overall volume, scope, and profitability of other business relationships between Supplier and Xos.
(c) Upon the occurrence of a Default and while that Default is continuing, the non-defaulting party may terminate the Agreement by notice to the defaulting party.
(d) Liquidated Damages. Without prejudice to any other right Xos may have under the Agreement, if Supplier breaches its obligation to deliver Products in accordance with the schedule provided for in this Agreement, Supplier agrees that Xos shall be entitled to recover as liquidated damages (and not to be considered a penalty) one half percent (0.5%) of the Purchase Order price per week for each week of delay, (for a maximum total of ten percent (10%) of the total Purchase Order price). Supplier's payment of liquidated damages shall not relieve Supplier from any obligation to diligently fulfill the Purchase Order or deliver the Products, or from any other obligation or liability under the Agreement. Xos's entitlement to demand payment of liquidated damages shall remain effective after acceptance of the Products.
12. Confidential Information.
Supplier agrees that any information disclosed by Xos to Supplier under this Agreement (including without limitation quantity and type of parts, order projections, and the terms of this Agreement) is confidential ("Confidential Information"), will be deemed confidential and proprietary to, and remain the sole property of, Xos. Supplier may not disclose Confidential Information or use Confidential Information for any purpose other than as contemplated under the Agreement without in each case the written consent of Xos, which such consent may be withheld for any or no reason. Confidential Information will not include information that is or becomes generally available to the public other than as a result of a violation of this Section 12 by the Supplier or was obtained by the Supplier on a non-confidential basis from a third party who was not under an obligation of confidentiality. Notwithstanding the foregoing, this Agreement will not be deemed to restrict Supplier from complying with a lawfully issued governmental order or other legal requirement to produce or disclose Confidential Information of Xos; provided, however, that the Supplier must (i) promptly notify Xos upon learning any request for such order or requirement, to enable Xos to oppose the order or obtain a protective order, and (ii) reasonably cooperate with Xos, at Xos's direction and expense, in resisting or limiting such disclosure. Xos and Supplier will each use the same degree of care to safeguard Confidential Information that it uses to protect its own confidential information from unauthorized access or disclosure (but not less than a reasonable degree of care). Upon request by Xos, Xos reserves all rights it may be entitled to in law or in equity.
13. Assignment and Subcontracting.
Xos's Purchase Order is issued to Supplier, in reliance upon its personal performance of the duties imposed thereby and by these General Terms. Without prior written consent of Xos, Supplier may not: (a) assign the Agreement or delegate the performance of its duties hereunder; or (b) assign any accounts receivable from Xos to third parties. Any attempt to assign the Agreement or accounts receivable in violation of this Section 13 shall be null and void. Supplier will ensure that the terms of its contracts with its sub-suppliers and subcontractors provide Xos with all of the rights specified in the Agreement. Any subcontracting, assignment, or delegation does not relieve Supplier of its responsibility under this Agreement.
14. Force Majeure Non-Performance.
Except as otherwise expressly provided herein, any delay or failure of either party to perform its obligations will be excused only if such delay or failure to perform is caused by an extraordinary and unforeseeable event beyond the control of the nonperforming party and without the nonperforming party's negligence, such as, by way of example and without limitation, acts of God, fires, floods, windstorms, explosions, riots, natural disasters, wars, and sabotage (each a "Force Majeure" event), and only to the extent such Force Majeure event actually prevents performance. Increased costs to procure raw materials, to ship Products or to otherwise manufacture and timely deliver Products does not excuse performance. Written notice of such delay, including the anticipated duration of the delay, must be given by the nonperforming party within two (2) business days of the Force Majeure event. In addition, the party so affected shall use diligent efforts to avoid or remove such causes of non-performance and both parties shall promptly (but no later than the cessation of the Force Majeure event) proceed whenever such causes are removed or cease.
During the period of any delay or failure to perform by Supplier, Xos at its option, may purchase Products from other sources to fulfill its requirements, without liability to Supplier. If a Force Majeure event continues for more than thirty (30) calendar days, then Xos, at its sole option, may terminate this Agreement and any Purchase Orders affected by the Force Majeure event, in whole or in part, without any obligation or liability except that Xos is still responsible for payment for Products that have been delivered to and accepted by Xos prior to receipt of the Force Majeure notice.
15. Labor Disputes.
Supplier will notify Xos of any labor contract expiration date at least six (6) months before the expiration of a current labor contract that has not been extended or replaced. Xos may thereafter direct Supplier in writing to ship up to thirty (30) calendar days of additional inventory of Products, specifying the quantities of Products required and any packaging and storage requirements. Supplier will use commercially reasonable efforts to comply with Xos's written directions prior to expiration of the current labor contract and until the current labor contract has been extended or a new contract completed.
16. Customs.
As specified in Section 5.7, transferable credits or benefits associated with Products purchased, including trade credits, export credits, or rights to the refund of duties, taxes, or fees, belong to Xos unless otherwise prohibited by applicable law. Supplier will provide Xos with all information and records relating to the Products necessary for Xos to (a) receive these benefits, credits, and rights, (b) fulfill any customs obligations, origin marking or labeling requirements, and certification or local content reporting requirements, (c) claim preferential duty treatment under applicable trade preference regimes, and (d) participate in any duty deferral or free trade zone programs of the country of import. Supplier will obtain all export licenses and authorizations and pay all export taxes, duties, and fees unless otherwise stated in the Agreement, in which case Supplier will provide all information and records necessary to enable Xos to obtain those export licenses or authorizations.
17. Dispute Resolution.
17.1 Negotiation and Mediation. Xos and Supplier will first endeavor to resolve through good faith negotiations any dispute arising under the Agreement. If a dispute cannot be resolved through good faith negotiations within a reasonable time, either party may request non-binding mediation by a mediator approved by both parties or, absent that approval, by the National Center for Dispute Settlement ("NCDS"), to be conducted in the local jurisdiction.
17.2 Arbitration. If mediation fails to resolve the dispute within thirty (30) days after the first mediation session, either party may submit the dispute to binding arbitration by notice to the other party. The arbitration proceedings will be conducted, and a single arbitrator will be selected, in accordance with the rules of the NCDS or other rules approved by the parties and will be governed by the United States Arbitration Act, 9 U.S.C. Sections 1-15, and this Section 19. The arbitration will be conducted at an agreed location or at a location selected by the arbitrator if the parties are unable to agree. The arbitrator will issue a written opinion setting forth the basis for the arbitrator's decision, which may include an award of legal fees and costs. The arbitrator's award will be final and non-appealable absent fraud or manifest error, and judgment on the arbitrator's award may be entered in any court having jurisdiction. While arbitration proceedings are pending, the parties will continue to perform their obligations under the Agreement without setoff for any matters being contested in the arbitration proceedings.
17.3 Litigation. The parties have selected binding arbitration as the sole means to resolve a dispute between them over monetary claims that cannot be resolved through mediation. Either party may pursue through litigation in any court of competent jurisdiction claims that also involve third parties who have not consented to arbitration, claims in litigation commenced by third parties, and claims for emergency relief, injunctive relief, specific performance or other non-monetary relief.
18. Limitation of Liability.
Xos's sole liability to Supplier under the Agreement (including its termination, expiration, or cancellation) is to pay for the Products purchased in accordance with the Agreement. IN NO EVENT WILL XOS BE LIABLE TO SUPPLIER FOR ANY LOST PROFITS OR FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER FOR BREACH OF CONTRACT, LATE PAYMENT, PROPERTY DAMAGE, PERSONAL INJURY, ILLNESS, OR DEATH OR OTHERWISE. Nothing in the General Terms will exclude or limit Supplier's liability for Supplier's material breach of this Agreement or (b) Supplier's liability for fraud, personal injury or death caused by the Products or its negligence or willful misconduct.
19. Miscellaneous.
19.1 Advertising. During and after the term of the Agreement, Supplier will not (a) advertise or otherwise disclose its relationship with Xos, or (b) use or display Xos's trademarks or logos in such advertising or disclosure without Xos's prior written consent, except as may be required to perform the Agreement or as required by law.
19.2 Audit Rights. Supplier will maintain records as necessary to support amounts charged to Xos under the Agreement in accordance with Supplier's document retention policies. Xos and its representatives may audit Supplier's records of transactions completed within one year prior to the audit date, to the extent needed to verify the quantities shipped and that the prices charged match the Agreement prices. Any audit will be conducted at Xos's expense (but will be reimbursed by Supplier if the audit uncovers material errors in the amounts charged), at reasonable times, and at Supplier's usual place of business.
19.3 Electronic Communication. Supplier will comply with the method of electronic communication specified by Xos in Xos's request for quotation and confirmation in the Agreement, including requirements for electronic funds transfer, purchase order transmission, electronic signature, and communication. Supplier will also make commercially reasonable efforts to comply with any modification to Xos's specified method of electronic communication.
19.4 Relationship of the Parties; Third-Party Beneficiaries. Xos and Supplier are independent contractors, and nothing in the Agreement makes either party the agent or legal representative of the other party for any purpose. Neither party has authority to assume or create any obligation on behalf of the other party. Purchase Orders are for the sole benefit of the parties thereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these General Terms.
19.5 Waiver. The failure of either party to enforce any right or remedy provided in the Agreement or by law on a particular occasion will not be deemed a waiver of that right or remedy on a subsequent occasion or a waiver of any other right or remedy.
19.6 Entire Agreement. The Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior oral or written representations or agreements by the parties with respect to the subject matter of the Agreement, including Xos's request for quotation and Supplier's quotation unless specifically incorporated in the Agreement. Except as authorized in Section 1.2, no subsequent terms, conditions, understandings, or agreements purporting to modify the terms of the Agreement will be binding unless in writing and signed by both parties.
19.7 Shrink Wrap Terms. This Agreement shall supersede any "shrink wrap" or "click wrap" terms that may be included with a purchase order issued by Supplier under the accompanying quote or Purchase Order. Xos hereby objects to any additional or different terms contained in any request for proposal, purchase order, acknowledgement or other communication previously or hereafter provided by Supplier to Xos. No such additional or different terms or conditions will be of any force or effect.
19.8 Severability. A finding that any provision of the Agreement is invalid or unenforceable in any jurisdiction will not affect the validity or enforceability of any other provision of the Agreement or the validity of enforceability of that provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the parties hereto will negotiate in good faith to or the court may, under applicable circumstances, modify the Agreement to effect the original intent of the parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
19.9 Interpretation. When used in these General Terms, "including" means "including without limitation" and terms defined in the singular include the plural and vice versa.
19.10 Notices. Any notice required or permitted to be given hereunder must be in writing and in English and shall be effective on the date of actual receipt if the date of actual receipt is a business day or on the next business day if the date of actual receipt is not a business day, and shall be personally delivered or sent by overnight courier or certified mail, return receipt requested, to the other party identified to receive such notice at its address set forth on the Purchase Order or at such other address as a party may by notice specify to the other.
19.11 Governing Law. All matters arising out of or relating to the General Terms will be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of California. The Parties hereby exclude the 1980 United Nations Convention on Contracts for the International Sale of Goods from this Agreement.
19.12 Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to the General Terms will be instituted in the federal courts of the United States of America or the courts of the State of California in each case located in the City of Los Angeles and County of Los Angeles, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
19.13 Survival. Provisions of these General Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of the General Terms or the applicable Purchase including, but not limited to, the following provisions: Set Off, Product Liability, Intellectual Property Rights, Insurance, Compliance with Laws, Confidential Information, Dispute Resolution, Governing Law, Submission to Jurisdiction and Survival.
19.14 Insurance. Each Party will keep its business and properties insured at all times against such risks for which insurance is usually maintained by reasonably prudent persons engaged in a similar business (including insurance for hazards and insurance against liability on account of damage to persons or property and insurance under all applicable workers' compensation laws). The insurance maintained shall be in such monies and with such limits and deductibles usually carried by persons engaged in the same or a similar business. In support of its indemnification obligations, Supplier shall name Xos as an additional insured on its General Liability, Automobile and Worker's Compensation insurance policies and agrees that such insurance shall respond as primary and noncontributory with any insurance held by Xos. Certificates of Insurance shall be provided within thirty (30) days of the execution of this Agreement and annually thereafter on the anniversary date of this Agreement.