Xosphere Master Services Agreement
Last modified: June 8, 2022
This Xosphere Software as a Services Agreement (“Agreement”) is entered into as of the date of the Order Form (“Effective Date”) by and between the individual or entity set forth as “Customer” on the Order Form and Xos Fleet, Inc., a Delaware Corporation, with offices at 3550 Tyburn Street, Suite 100, Los Angeles, CA 90065 (“Xos”).
WHEREAS, Xos provides access to the Services to its customers; and
WHEREAS, Customer desires to access the Services, and Xos desires to provide Customer access to the Services, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1.1. “Driver” means the driver or operator of a Vehicle. A Driver may be an owner, operator or lessor of the Vehicle.
1.2. “Fleet Data” means Vehicle information, licenses, inspections, taxes, credentials, fleets, location data, vehicle telematics data, remote analysis data, safety analysis data, charger data, service history, maintenance needs, mileage data, driving time, vehicle charging information, and any other information generated by use of the Services and any other documents, information, data, content, or other materials input by Customer or the Users into the Services, including Customer and Users’ data regarding Customer’s fleet operation, Vehicles and Users, including data recorded via the Services.
1.3. “Order Form” means the purchase or sales order to which this Agreement governs, and any amendments, modifications or supplements thereto entered into between Xos and Customer.
1.4. “Products” means the hardware and related equipment set forth in the Order Form or otherwise provided by Xos in connection with providing the Services to Customer.
1.5. “Services” means Xos’ cloud-based fleet management platform, accessible to Customer and its Users, enabling the storage, analysis and management of Fleet Data and records, including: (a) the Xosphere Solution; (b) any other cloud services furnished by Xos under this Agreement; or (c) as may be further described at www.xostrucks.com, or in documentation provided or made available electronically or otherwise by or for Xos, and the Products.
1.6. “Territory” means the United States.
1.7. “User(s)” means a person working for or authorized by Customer to use the Services for the purpose of or in connection with Customer’s professional fleet management activities.
1.8. “Vehicle” means a vehicle managed by or otherwise connects to the Services, and any associated charger.
1.9. “Xosphere Solution” means Xos’ cloud-based fleet management platform designed to allow User to monitor, manage, maintain, and optimize their Vehicles, infrastructure, and Fleet Data.
2. Term. This Agreement will become effective on the Effective Date and continue thereafter for two (2) years (the “Initial Term”), unless earlier terminated as provided herein. Thereafter, the Agreement will automatically renew for successive one (1) year terms (each a “Renewal Term”), unless either party gives notice to the other of its intent not to renew at least thirty (30) days prior to the expiration of the then current term. The Initial Term and any Renewal Terms are referred to, collectively, as the “Term.”
3.1. Subject to the terms and conditions of this Agreement and Customer’s payment of all relevant fees, during the Term, Xos grants Customer a non-exclusive, non-transferable license in the Territory to access and use the Services solely for purposes of fleet management of Vehicles. Subject to the terms of this Agreement, Customer may grant access to and use of the Services to its Users. To the extent any Products or the Xosphere Solution is provided to Customer for installation on its systems for use in connection with the Services, the Products and the Xosphere Solution will be included in the definition of Services and subject to the foregoing license. All hardware and software provided or made available by Xos may only be used in support of Customer’s use of the Services and for no other purpose.
3.2. As set forth in the applicable Order Form, the Services shall permit Users to access Fleet Data in the following manners: (a) National Fleet Managers can access Fleet Data on a fleet-wide basis; (b) Local Fleet Managers can access Fleet Data for either their local fleet or on a statewide basis, as applicable; and (c) Drivers can access only the Fleet Data for their own Vehicle. The Services provide alerts for preventative vehicle maintenance to national fleet managers, local fleet managers, and Drivers. National and local fleet managers can further enable monitoring alerts for specified Driver behaviors, including but not limited to speeding. Future releases and versions of the Xosphere Solution and the Services shall enable Driver ranking and benchmarking. Customer acknowledges that, upon implementation, such features may constitute “profiling” under certain data privacy laws.
3.3. Xos offers a free tier of the Services to Customers to test and evaluate the Services and for the submission of Vehicle maintenance and service tickets (“Free Service Tier”). During Customer is enrolled in the Free Service Tier, all terms and conditions of this Agreement will apply, except that (a) no fees will be due from Customer for the Services, other than for Vehicle maintenance, support and repairs, or as agreed to, in writing, for services outside the scope of the Free Service Tier; and (ii) the Services will be provided without warranties or indemnities of any kind, entirely on an “as-is” basis (e.g., the provisions of Sections 16.2 and 17 will not apply). Customer may, at any time during the Term, upon election by Customer, move to a paid Service tier. If Customer elects a paid Service Tier, all such terms of this Agreement will apply as of such date of election.
4. Availability of Services. Subject to the terms and conditions of this Agreement, Xos will use commercially reasonable efforts to provide the Services twenty-four (24) hours a day, seven (7) days a week during the Term. Notwithstanding, the Services are dependent on the coverage and calling areas of cellular networks owned and operated by third party telecommunications providers (“Carriers”). Actual coverage and operation of the Services depends on system availability and capacity, the Internet, system and equipment upgrades, repairs, maintenance, modifications, the location of a User or a Vehicle, Customer’s equipment, terrain, signal strength, structural conditions, weather and atmospheric conditions, governmental regulations, suspected fraudulent activities, and force majeure events. Company will not be responsible for any limits in coverage of cellular networks, performance degradation of the cellular networks, or failure of performance by the Carriers. Customer acknowledges that coverage and calling areas may be interrupted, halted, or curtailed or the quality of the transmission may be diminished at any time. Customer further agrees that Xos does not represent or warrant the availability of Services on a continuous or uninterrupted basis. Xos will provide Customer with reasonable advance notice for all scheduled times in which the Services will be inoperable or inaccessible due to Xos activity.
5. Users. Customer shall ensure each User is located in the Territory. Customer shall enter into written agreements with each User disclaiming all liability and warranties of Customer’s licensors and vendors and include language at least as protective as set forth herein regarding the protection of Xos’ intellectual property and Confidential Information. Customer will not make any representations or warranties to Users or any other third party regarding the Services. Customer is responsible for the actions of its Users and their compliance with all relevant terms of this Agreement.
6. Restrictions. Customer and its Users may only use the Services as described in this Agreement and in the then-current documentation made generally available by Xos to its customers regarding use of the Services (the “Documentation”). Customer is responsible for ensuring its Users comply with all relevant terms of this Agreement and any failure to comply will constitute a breach by Customer. Except as expressly authorized by this Agreement, Customer will not, and will not allow any User or other third party to, (a) permit any third party to access or use the Services, other than an User; (b) use the Services on or in connection with any vehicle or device that Customer does not own, control, or have permission to use the Services with; (c) decompile, disassemble, reverse engineer, or otherwise attempt to derive the trade secrets embodied in the Services, except to the extent expressly permitted by applicable law; (c) use the Services or any Xos Confidential Information to develop a competing product or service; (e) uses any Confidential Information disclosed by Xos to dispute the validity of any Xos’ intellectual property rights, including those comprising the Services; (f) extract or re-use any content or component of the Services, other than as expressly licensed herein; (g) use an data mining, robots, spiders, or other similar data gathering or extraction tools to re-use or extract any material content or component of the Services; (h) use any Service, or allow the transfer, transmission, export, or re-export of any Service or portion thereof, in violation of any export control laws or regulations administered by the U.S. Commerce Department or any other government agency; (i) remove any copyright, trademark, proprietary rights, disclaimer, or warning notice included on or embedded in any part of the Documentation and Service, including any screen displays, etc., or any other products or materials provided by Xos hereunder; (j) represent to any User or third party that Customer is the creator or developer or the Services; (k) engage in any monitoring or interception of data not intended for the applicable User without authorization; (l) attempt to circumvent authentication or security of any host, network, or account without authorization; (m) test or benchmark the Services; or (n) use any method, software or program designed to collect identity information, authentication credentials, or other information. Under no circumstances will Xos be liable or responsible for any use, or any results obtained by the use, of the Services in conjunction with any services, software, or hardware that are not provided by Xos. All such use will be at Customer’s sole risk and liability.
7. Information Security; Compliance. Consistent with any law or regulation applicable to the Services and Xos’ then current practices and procedures, Xos will maintain and enforce administrative, technical, and physical safeguards to reasonably protect the confidentiality, availability, and integrity of Customer’s Confidential Information. Xos will promptly report to Customer any compromise of security that it becomes aware that may affect Customer.
8. Security. Customer is solely responsible for any failure to keep all User identifications and passwords (“Login Credentials”) secure. If the security of a Customer or a User’s Login Credentials has or is believed to have been compromised, or suspected unauthorized use, Customer will promptly notify Xos. Xos will be entitled to treat all communications, instructions and transactions as authorized by Customer or the applicable User Customer’s or its User’s Login Credentials are used unless and until Customer has notified Xos of such compromise or unauthorized use of the Login Credentials. If Xos suspects, in its reasonable opinion, fraudulent or unauthorized activity on or under Customer’s account, Xos reserves the right to terminate or suspend Customer’s or the applicable User’s access to the Services.
9. Proprietary Rights. Customer acknowledges and agrees that (a) all Services, including Support Services (as defined in Section 14.3), are protected by intellectual property rights, as applicable, of Xos and its vendors/licensors and that Customer has no right to transfer or reproduce any of the foregoing or any software provided with the Services or prepare any derivative works with respect to, or disclose Confidential Information (as defined in Section 19 (Confidentiality)) pertaining to, any Services, including Support Services, or any part of them and (b) that Xos owns all right, title, and interest in and to the Services, including Support Services, including any changes or modifications made to the Services performed in connection with this Agreement, together with all ideas, architecture, algorithms, models, processes, techniques, user interfaces, database design and architecture, and “know-how” embodying the Services, including Support Services. Under no circumstances will Customer be deemed to receive title to any portion of the Services, including Support Services, title to which at all times will vest exclusively in Xos. Customer will preserve all Services from any liens, encumbrances, and claims of any individual or entity. Customer will not use any Confidential Information disclosed by Xos to Customer in connection with this Agreement to contest the validity of any intellectual property rights of Xos or its licensors. Any such use of Xos’ Confidential Information will constitute a material, non-curable breach of this Agreement.
10. Fleet Data.
10.2. Customer grants Xos a non-exclusive, world-wide, royalty-free license to use the Fleet Data to support, modify, improve and develop the Services and for purposes of performing its obligations under this Agreement. Further, Customer grants to Xos the right to access Vehicles necessary for Xos to render the Services, including but not limited to authorizing Xos to access Customer’s Vehicles and accounts in order to provide troubleshooting and support services in connection with the Services, and to support, modify, improve and develop the Services. Customer will be responsible for obtaining all rights, permissions, and authorizations to provide the Fleet Data and other rights to Xos for use as contemplated under this Agreement, including obtain permission from Drivers to obtain Fleet Data and otherwise monitor the Vehicle and disclose Fleet Data in accordance this Agreement. In addition, to the extent such systems, software, data, hardware and other property are licensed to Customer, in whole or in part, or are property of or services provided to Customer by a third party, Customer represents and warrants to Company that Customer has the right to allow, or Customer has secured all rights, licenses, and clearances allowing, Company to access, use or utilize such data, third party property or services in providing the Services. Customer agrees to indemnify and hold harmless Company against all claims arising from Company’s access, use or utilization of data or property of Customer or that of any third party in connection with providing the Services.
10.3. Notwithstanding this Section 11, Xos will not disclose to a third party (other than to government agencies as required by law or as part of Services to Customer) any information that identifies a specific Customer, carrier, fleet, Vehicle or User, without the consent of the Customer on behalf of itself and Users, as applicable.
11. Aggregated and Anonymized Data. Customer grants Xos a non-exclusive, perpetual, irrevocable, fully-paid-up, royalty free license to use, copy, distribute, sell, and otherwise exploit statistical and other aggregated and anonymized data derived from the Fleet Data and Customer’s and its Users’ use of Services (the “Aggregated Data”) for Xos’ business purposes, including the provision of products and services to Xos’ customers; provided the Aggregated Data is combined with similar data from Xos’ other customers and does not include any information identifying Customer or any identifiable individual. Once aggregated, Xos shall be the owner of all right, title, an interest in and to the Aggregated Data. The Aggregated Data will not be considered Customer’s Confidential Information.
12. Feedback. Customer may provide suggestions, comments or other feedback (collectively, “Feedback”) to Xos with respect to its products and services, including the Services. Feedback is voluntary. Xos may use Feedback for any purpose without obligation of any kind. To the extent a license is required under Customer’s intellectual property rights to make use of the Feedback, Customer grants Xos an irrevocable, non-exclusive, perpetual, fully-paid-up, royalty-free license to use the Feedback in connection with Xos’ business, including the enhancement of the Services.
13. Support and Maintenance.
13.1. During the Term, Xos will provide Customer with reasonable Support Services (as defined in Section 14.3) during Xos’ then current business hours. Xos will provide Customer with Service updates, bug fixes, enhancements, new releases, new versions, and other improvements that Xos in its sole discretion makes generally available to its other similarly situated licensees at no charge.
13.2. Xos will make reasonable efforts to resolve any support tickets but does not guarantee that support tickets will be resolved. Generally, a support ticket is resolved when Customer receives one of the following: (a) information that resolves the problem; (b) information on how to obtain a solution that will resolve the problem; (c) notice that the problem is caused by a known, unresolved issue or an incompatibility issue with the Services; (d) information that identifies the problem as being resolved by upgrading to a newer release of the Services; or (e) notice that the problem has been identified as a hardware equipment issue.
13.3. Xos will use commercially reasonable efforts to correct reproducible failures of the Service to perform in substantial accordance with their then current Documentation. The support and maintenance services described in this Section may be referred to, collectively, as the “Support Services.” Xos shall no have no obligation to furnish Support Services for issues relating to Customer products and services.
13.4. Unless otherwise specified, all Services must be at their most current release level. However, Customer shall not be entitled to receive updates or new releases that include new or different functionality for which Xos imposes an additional charge to its other customers. Such new or different functionality may be purchased by Customer, in its discretion, at Xos’ then current pricing. Xos shall provide Customer with notice of and the right to access major updates, as included above, to the Services.
13.5. Support Services are not intended for use in activities in which the failure of the Support Services to attain a desired result could lead to death, personal injury, or severe physical or environmental damage.
13.6. To receive Support Services, Customer must follow the access instructions provided by Xos and cooperate with Xos when seeking Support Services by providing information necessary to assist Xos in diagnosing an issue. Customer is solely responsible for any and all security of its confidential, proprietary or classified information.
13.7. Xos may provide Support Services remotely, whereby it will access, and if permitted by Customer, control and gather information from the Vehicle and any Customer device where the Services are running through the installation and use of remote access software. Installation and use of the remote access software by Customer indicates its permission for Xos to provide Support Services in this way. All or portions of the remote access software files may remain on Customer’s Vehicles or other systems after the Support Service session is finished. Title to the remote access software and all intellectual property rights included therein remains with Xos and its licensors. Use of the applicable remote access software may be subject to additional licensing terms, which will be made available to Customer, if applicable prior to the use of such remote access software. Customer may not disassemble or reverse engineer any portion of the remote access software. While remote access Support Services are provided, Xos will only access, control and gather information on a Vehicle or other Customer device running the Services that it reasonably believes is necessary to analyze and provide Support Services. The remote access software or the features the Services will allow Customer to terminate the remote access Support Service session at any time.
14.1. In general. Customer will pay Xos the fees for the Services set forth in the Order Form on a per-Vehicle basis. Except as provided in Section 16.2 (Xos Warranty), all fees are non-refundable. Customer will pay all invoices within thirty (30) days of invoice date. Payments not made within that time period will be subject to late charges equal to the lesser of (a) one and one-half percent (1.5%) per month of the overdue amount or (b) the maximum amount permitted under applicable law. In the event an invoice remains unpaid forty-five (45) or more days from the invoice date, Xos may, in its discretion, suspend the Services until the invoice is paid in full. Xos will notify Customer of any pricing adjustments sixty (60) days prior to the renewal of the then-current Term.
14.2. Taxes. In addition to any other payments due under this Agreement, Customer agrees to pay, indemnify and hold Xos harmless from any sales, use, transfer, privilege, tariffs, excise, and all other taxes and all duties, whether international, national, state, or local, however designated, which are levied or imposed by reason of the performance of the Services under this Agreement; excluding, however, income taxes on profits which may be levied against Xos.
14.3. Auditing Rights and Required Records. Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two (2) years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder. Xos may, at its own expense, on reasonable prior notice, periodically inspect and audit Customer’s records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Customer has underpaid Xos with respect to any amounts due and payable during the Term, Customer shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 15.1. Customer shall pay for the costs of the audit if the audit determines that Customer’s underpayment equals or exceeds 10% for any quarter. Such inspection and auditing rights will extend throughout the Term of this Agreement and for a period of two (2) years after the termination or expiration of this Agreement.
15.1. Customer Warranty. Customer represents and warrants that (a) it has full power, capacity, and authority to enter into this Agreement and to grant the license set forth in Section 11.2 (Customer Materials); (b) any Customer Materials provided by Customer to Xos for use in connection with the Services does not and will not infringe the intellectual property, publicity, or privacy rights of any person and is not defamatory, obscene, or in violation of applicable foreign, federal, state and local laws, rules and regulations (collectively, “Applicable Law”); and (c) its use of the Services will be in compliance with all Applicable Law.
15.2. Xos Warranty. During the Term, Xos represents and warrants (a) the Services will substantially comply with the Documentation; (b) it shall use commercially reasonable efforts to screen the Services for viruses, Trojan horses, worms, and other similar intentionally harmful or destructive code; and (c) it shall comply with Applicable Law in performing this Agreement. In the event of a breach of the warranty in Section 16.2(a), Xos’ sole and exclusive liability and Customer’s sole and exclusive remedy will be to perform the defective Service again. In the event Xos is unable through reasonable efforts to correct the defective Service or Professional Service within thirty (30) days from receipt of notice from Customer of the breach, Customer may elect to terminate this Agreement and receive a pro-rated refund of any pre-paid, unused recurring fees for the non-conforming Services.
15.3. Disclaimer of Warranties. EXCEPT AS PROVIDED IN SECTION 16.2 (XOS WARRANTY), THE SERVICES, INCLUDING SUPPORT SERVICES ARE PROVIDED “AS IS” AND “AS-AVAILABLE,” WITH ALL FAULTS, AND WITHOUT WARRANTIES OF ANY KIND. XOS AND ITS VENDORS AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUALITY OF INFORMATION, TITLE, AND NON-INFRINGEMENT. FURTHERMORE, XOS DOES NOT WARRANT TO THE ACCURACY OF ANY PREDICTIVE SUGGESTIONS FOR VEHICLE MAINTENANCE MADE BY THE XOSPHERE SOLUTION; SUCH SUGGESTIONS ARE MADE BASED ON AVAILABLE FLEET DATA AND THE VEHICLE OPERATOR SHOULD MAKE MAINTENANCE AND REPAIR DECISIONS BASED ON THEIR PROFESSIONAL JUDGMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY XOS OR ITS AUTHORIZED REPRESENTATIVES WILL CREATE ANY OTHER WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF XOS’ OBLIGATIONS HEREUNDER. THE SERVICES MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. CUSTOMER ACKNOWLEDGES AND AGREES THAT XOS AND ITS VENDORS AND LICENSORS DO NOT OPERATE OR CONTROL THE INTERNET AND THAT: (a) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR (b) UNAUTHORIZED INDIVIDUALS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE CUSTOMER’S DATA, WEB‑SITES, COMPUTERS, OR NETWORKS. XOS WILL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES. CUSTOMER IS RESPONSIBLE FOR PRESERVING AND MAKING ADEQUATE BACKUPS OF ITS DATA.
16. Xos Indemnity. Xos will defend and indemnify Customer and hold it harmless from any and all claims, losses, deficiencies, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees) arising from a claim by a third party that Customer’s licensed use of the Services infringes that third party’s United States patent, copyright, or trade secret rights. The foregoing indemnification obligation of Xos is contingent upon Customer promptly notifying Xos in writing of such claim, permitting Xos sole authority to control the defense or settlement of such claim and providing Xos reasonable assistance (at Xos’ sole expense) in connection therewith. If a claim of infringement under this Section 17 (Xos Indemnity) occurs, or if Xos determines a claim is likely to occur, Xos will have the right, in its sole discretion, to either (a) procure for Customer the right or license to continue to use the Services free of the infringement claim, or (b) modify the Services to make it non-infringing, without loss of material functionality. If neither of these remedies is reasonably available to Xos, Xos may, in its sole discretion, immediately terminate this Agreement and return the prorated portion of any pre-paid, unused fees for the relevant Services. Notwithstanding the foregoing, Xos will have no obligation with respect to any claim of infringement that is based upon or arises out of (v) the use or combination of the Services with any hardware, software, products, data, or other materials not provided by Xos, (w) modification or alteration of the Services by anyone other than Xos, (x) use of Services in excess of the rights granted in this Agreement, (y) any specifications or other intellectual property provided by Customer, or (z) any violation of applicable law by Customer or its Users (collectively, the “Excluded Claims”). In addition, Excluded Claims shall include any claims associated with liabilities to the United States government or any U.S. state, including, but not limited to, liabilities for billing or payment violations, overpayments, civil money penalties, false claims act liabilities, or any other similar liability. The provisions of this Section 17 (Xos Indemnity) state the sole and exclusive obligations and liability of Xos and its licensors and suppliers for any claim of intellectual property infringement arising out of or relating to the Services or this Agreement, and are in lieu of any implied warranties of non-infringement, all of which are expressly disclaimed. Notwithstanding anything to the contrary in this Agreement, Xos maximum liability under the indemnification hereunder shall be limited to the amount Customer has paid Xos during the prior two (2) years.
17. Customer Indemnity. Customer will defend and indemnify Xos and hold it harmless from any and all claims, losses, deficiencies, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees) incurred by Xos as a result of any claim by a third party arising from (a) Customer’s use of the Services in breach of this Agreement; (b) any violation of any state or federal laws, regulations or guidance, by Customer, or by its Users; (c) any use of the Services by Customer or its Users, including any death, injury or property damage resulting from any such use; (d) any tickets, infractions, penalties or accidents arising from any use of vehicles by Customer or its affiliates, or their Users; (e) any infringement or misappropriation of a third party’s copyrights, patents, trade secrets or other intellectual property rights, or any violation of any proprietary right or invasion of any privacy rights or laws, regulations or guidance; (f) any Fleet Data or any failure by Customer to obtain consents from Users, or to cause Users to consent for the collection, use and disclosure of Fleet Data, or other information or data in accordance with this Agreement; (g) any claims from the owner of a Vehicle or related to the use of such Vehicles by Customers or Users; (h) any failure by Customer to pay or remit applicable taxes or charges in accordance with this Agreement; or (i) the Excluded Claims. The foregoing indemnification obligation of Customer is contingent upon Xos promptly notifying Customer in writing of such claim, permitting Customer sole authority to control the defense or settlement of such claim and providing Customer reasonable assistance (at Customer’s sole expense) in connection therewith.
18.1. Definition of Confidential Information. Each party agrees that all information supplied by one party and its affiliates and agents (collectively, the “Disclosing Party”) to the other (“Receiving Party”) including, without limitation: (a) source and object code, prices, trade secrets, mask works, databases, hardware, software, designs and techniques, programs, engine protocols, models, displays and manuals, and the selection, coordination, and arrangement of the contents of such materials, and (b) any unpublished information concerning research activities and plans, customers, marketing or sales plans, sales forecasts or results of marketing efforts, pricing or pricing strategies, costs, operational techniques, strategic plans, and unpublished financial information, including information concerning revenues, profits and profit margins, will be deemed confidential and proprietary to the Disclosing Party, regardless of whether such information was disclosed intentionally or unintentionally or marked as “confidential” or “proprietary” (“Confidential Information”). The Services and Documentation are the Confidential Information of Xos.
18.2. Exclusions. Confidential Information will not include any information or material, or any element thereof, whether or not such information or material is Confidential Information for the purposes of this Agreement, to the extent any such information or material, or any element thereof: (a) has previously become or is generally known, unless it has become generally known through a breach of this Agreement or a similar confidentiality or non-disclosure agreement; (b) was already rightfully known to the Receiving Party prior to being disclosed by or obtained from the Disclosing Party as evidenced by written records kept in the ordinary course of business of or by proof of actual use by the Receiving Party; (c) has been or is hereafter rightfully received by the Receiving Party from a third person (other than the Disclosing Party) without restriction or disclosure and without breach of a duty of confidentiality to the Disclosing Party; or (d) has been independently developed by the Receiving Party without access to Confidential Information of the Disclosing Party.
18.3. Treatment of Confidential Information. Each party recognizes the importance of the other’s Confidential Information. In particular, each party recognizes and agrees that the Confidential Information of the other is critical to their respective businesses and that neither party would enter into this Agreement without assurance that such information and the value thereof will be protected as provided in this Section and elsewhere in this Agreement. Accordingly, each party agrees as follows: (a) the Receiving Party will hold any and all Confidential Information it obtains in strictest confidence and will use and permit use of Confidential Information solely for the purposes of this Agreement; (b) without limiting the foregoing, the Receiving Party will use at least the same degree of care, but no less than reasonable care, to avoid disclosure or use of this Confidential Information as the Receiving Party employs with respect to its own Confidential Information of a like importance; (c) the Receiving Party may disclose or provide access to its responsible employees who have a need to know and may make copies of Confidential Information only to the extent reasonably necessary to carry out its obligations hereunder; (d) the Receiving Party currently has, and in the future will maintain in effect and enforce, rules and policies to protect against access to, or use or disclosure of, Confidential Information other than in accordance with this Agreement, including, without limitation, written instruction to, and agreements with, employees and agents who are bound by an obligation of confidentiality no less stringent than set forth in this Agreement to ensure that such employees and agents protect the confidentiality of Confidential Information; (e) the Receiving Party expressly will instruct its employees and agents not to disclose Confidential Information to third parties, including, without limitation, agents, subcontractors, or consultants, without the Disclosing Party’s prior written consent; and (f) the Receiving Party will notify the Disclosing Party immediately of any unauthorized disclosure or use, and will cooperate with the Disclosing Party to protect, all proprietary rights in and ownership of its Confidential Information.
18.4. Compelled Disclosures. To the extent required by applicable law or by lawful order or requirement of a court or governmental authority having competent jurisdiction over the Receiving Party, the Receiving Party may disclose Confidential Information in accordance with such law or order or requirement, subject to the following conditions: as soon as possible after becoming aware of such law, order, or requirement, and prior to disclosing Confidential Information pursuant thereto, the Receiving Party will so notify the Disclosing Party in writing and, if possible, the Receiving Party will provide the Disclosing Party notice not less than five (5) business days prior to the required disclosure. The Receiving Party will use reasonable efforts not to release Confidential Information pending the outcome of any measures taken by the Disclosing Party to contest, otherwise oppose, or seek to limit such disclosure by the Receiving Party, and any subsequent disclosure or use of Confidential Information that may result from such disclosure. The Receiving Party will cooperate with and provide assistance to the Disclosing Party regarding such measures. Notwithstanding any such compelled disclosure by the Receiving Party, such compelled disclosure will not otherwise affect the Receiving Party’s obligations hereunder with respect to Confidential Information so disclosed.
18.5. Return of Confidential Information. On termination or expiration of this Agreement, Receiving Party will return or destroy, at the Disclosing Party’s option, the Disclosing Party’s Confidential Information. Notwithstanding the foregoing, the Receiving Party will not be required to remove copies of the Disclosing Party’s Confidential Information from its backup media and servers, where doing so would be commercially impracticable. In addition, the foregoing destruction and return obligation will be subject to any retention obligations imposed on Receiving Party by law or regulation.
18.6. Non-Exclusive Equitable Remedy. Each party acknowledges and agrees that due to the unique nature of the Confidential Information there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach or threatened breach may allow a party or third parties to unfairly compete with the other party, resulting in irreparable harm to such party, and therefore, that upon any such breach or any threat thereof, each party will be entitled to appropriate equitable and injunctive relief from a court of competent jurisdiction without the necessity of proving actual loss, in addition to whatever remedies either of them might have at law or equity. Any breach of this Section 19 (Confidentiality) will constitute a material breach of this Agreement and be grounds for immediate termination of this Agreement in the exclusive discretion of the non-breaching party.
19. Limitation of Liability and Damages. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL XOS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL LOSSES OR DAMAGES, INCLUDING EXEMPLARY, PUNITIVE, LOSS OF REVENUE OR PROFITS, LOSS OF DATA, BUSINESS INFORMATION OR LOSS OF USE THEREOF, FAILURE TO REALIZE EXPECTED PROFITS OR SAVINGS, COST OF CAPITAL, LOSS OF BUSINESS OPPORTUNITIES, LOSS OF GOODWILL OR ANY OTHER NON-DIRECT, PECUNIARY, COMMERCIAL OR ECONOMIC LOSS OR DAMAGE OF ANY KIND WHETHER FORESEEN OR UNFORESEEN ARISING FROM OR INCIDENTAL TO THIS AGREEMENT, INCLUDING USE OF OR INABILITY TO USE THE SERVICES AND SUPPORT SERVICES, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND EVEN IF XOS OR ITS VENDORS AND LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. FURTHERMORE, NEITHER XOS NOR ITS VENDORS AND LICENSORS WILL HAVE ANY LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR ANY DAMAGES RESULTING FROM OR ARISING OUT OF (1) CUSTOMER’S ALTERATION OR MODIFICATION OF THE SERVICES OR XOSPHERE SOLUTION WITHOUT EXPRESS, PRIOR XOS AUTHORIZATION, AND (2) ANY VIOLATION OF APPLICABLE LAW BY CUSTOMER OR ITS USERS. THE TOTAL LIABILITY OF XOS AND ITS VENDORS AND LICENSORS TO CUSTOMER OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR THE SERVICES AND SUPPORT SERVICES IN CONNECTION WITH ANY CLAIM OR TYPE OF DAMAGE (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE) WILL NOT EXCEED THE TOTAL FEES PAID HEREUNDER BY CUSTOMER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THE FOREGOING LIMITATIONS AND EXCLUSIONS OF LIABILITY SHALL NOT APPLY TO NOR LIMIT EITHER PARTY’S LIABILITY FOR (a) VIOLATION OF APPLICABLE LAW; (b) FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT; (c) EITHER PARTY’S INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; (d) THE INDEMNIFICATION OBLIGATIONS IN SECTIONS 17 (XOS INDEMNITY) AND 18 (CUSTOMER INDEMNITY); OR (e) BREACH OF SECTION 19 (CONFIDENTIALITY). THE LIMITATIONS OF DAMAGES SET IN THIS SECTION 20 ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN XOS AND CUSTOMER. XOS WOULD NOT BE ABLE TO HAVE PROVIDED THE SERVICES WITHOUT SUCH LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY OR DEATH, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THESE LIMITATIONS MAY NOT APPLY TO CUSTOMER. CUSTOMER AND ITS DRIVERS SHALL BE RESPONSIBLE FOR ALL LIABILITIES ARISING FROM ITS USE OF THE SERVICES, INCLUDING ANY TICKETS, INFRACTIONS, PENALTIES OR ACCIDENTS ARISING FROM ANY USE OF VEHICLES BY CUSTOMER OR ITS USERS.
20.1. Termination. This Agreement will terminate (a) on the thirtieth (30th) day after either party gives the other written notice of a breach by the other of any material term or condition of this Agreement, unless the breach is cured before that day; or (b) immediately, if (i) a receiver is appointed for the Customer or its property; (ii) the Customer becomes insolvent or unable to pay its debts as they mature in the ordinary course of business or makes a general assignment for the benefit of its creditors; or (iii) any proceedings (whether voluntary or involuntary) are commenced against the Customer under any bankruptcy or similar law and such proceedings are not vacated or set aside within sixty (60) days from the date of commencement thereof (collectively, an “Event of Default”). In the event of an Event of Default, Xos may, in addition to the other rights set forth in this Agreement, take one or more of the following actions: (w) suspend the Services and impose a reactivation fee on Customer if the Services are subsequently reactivated; (x) charge interest on fees that are due and payable at the highest rate permitted by law; (y) terminate the Agreement and require Customer to pay, within 30 days after such termination, all of the fees that would have been due for the Services for the remainder of the then-current Term had this Agreement not been terminated; and (z) require Customer to return to Xos any Products that may be in Customer’s possession, unless such Products were previously purchased and paid for by Customer as set forth in the Order Form. In addition, Xos may terminate this Agreement on written notice to Customer in the event the Customer undergoes a change in control or is acquired by a competitor of Xos.
20.2. Suspension of Services. Notwithstanding any other provision of this Agreement, Xos may, in its sole discretion, suspend Customer’s access to the Services for any of the following reasons (a) to prevent damages or risk to, or degradation of, the Services; (b) to comply with any law, regulation, court order, or other governmental request; (c) to otherwise protect Xos from potential legal liability; (d) in the event an invoice remains unpaid for more than forty-five (45) or more days from the invoice date; or (e) if Customer provides, or Xos has reasonable grounds to suspect, any account or registration for Customer or any User is inaccurate, not current or incomplete. Xos will use reasonable efforts to provide Customer with notice prior to or promptly following any suspension of the Services. Xos will promptly restore access to the Services as soon as the event giving rise to suspension has been resolved. This Section will not be construed as imposing any obligation or duty on Xos to monitor use of the Services.
20.3. Effect of Termination. Upon termination of this Agreement or termination of a particular Service for any reason: (a) Customer’s and all User’s access to and use of the Services will cease as of the effective date of termination; (b) Customer will pay to Xos all undisputed sums due to Xos for Services through the effective date of such expiration or termination (prorated as appropriate); and; (c) Customer may request a copy of any Fleet Data within thirty (30) days of expiration or termination of the Term; thereafter, Xos has no obligation to retain the Fleet Data and may delete the Fleet Data in accordance with Xos’ then current data retention policy.
21. General Provisions.
21.1. Affiliates, Subcontractors and Vendors. Some or all of the Services, including Support Services, may be provided by Xos’ affiliates, agents, subcontractors and information system vendors. The rights and obligations of Xos may be, in whole or in part, exercised or fulfilled by the foregoing entities. Xos shall ensure such entities comply with all relevant terms of this Agreement and any failure to do so shall constitute a breach by Xos.
21.2. Publicity. Either party may identify the other party and use its logos in connection with this engagement in its partner/customer listings, web sites, and other promotional materials, subject to the other party’s prior approval, which shall not be unreasonably withheld or delayed. In addition, the parties may individually or mutually may issue an agreed upon press release regarding the parties’ new relationship under this Agreement.
21.3. Force Majeure. Except for the payment of money as described in Section 15 (Fees) of this Agreement, neither party will be liable for any failure or delay in performance under this Agreement which is due to any event beyond the reasonable control of such party, including without limitation, fire, explosion, unavailability of utilities or raw materials, Internet delays and failures, telecommunications failures, unavailability of components, labor difficulties, war, riot, act of God, export control regulation, laws, judgments or government instructions. In the event a party’s performance hereunder is subject to a force majeure event that continues for more than thirty (30) consecutive days, the other party may, in its discretion, terminate this Agreement on written notice to the impacted party.
21.5. Governing Law, Venue, and Limitation of Actions. Any claim, demand, suit, action, cause of action, or proceeding (whether in contract, in tort, at law, or otherwise) (each, a “Proceeding”) based upon, arising out of, or related to this Agreement and its negotiation, execution, performance, non-performance, interpretation, termination, construction or the transactions contemplated hereby shall be heard and determined in the Court of Chancery in the City of Wilmington, New Castle County, Delaware or, in the event such court lacks subject matter jurisdiction, the United States District Court sitting in Wilmington, Delaware or, in the event such federal district court lacks subject matter jurisdiction, then in the Superior Court in the City of Wilmington, New Castle County, Delaware. The parties hereby irrevocably submit to the exclusive jurisdiction and venue of such courts in any such Proceeding and irrevocably and unconditionally waive the defense of an inconvenient forum, or lack of jurisdiction to the maintenance of any such Proceeding. The consents to jurisdiction and venue set forth herein shall not constitute general consents to service of process in the State of Delaware and shall have no effect for any purpose except as provided in this Section 22.5 and shall not be deemed to confer rights on any person other than the parties. Each party agrees that the service of process upon such party in any Proceeding arising out of or relating to this Agreement shall be effective if notice is given by overnight courier at the address set forth in the Order Form. Each of the parties also agrees that any final, non-appealable judgment against a party in connection with any Proceeding arising out of or relating to this Agreement shall be conclusive and binding on such party and that such award or judgment may be enforced in any court of competent jurisdiction, either within or outside of the United States. A certified or exemplified copy of such award or judgment shall be conclusive evidence of the fact and amount of such award or judgment. No action, regardless of form, arising out of this Agreement, may be brought by Customer more than one (1) year after the cause of action has arisen.
21.6. No Third Party Beneficiaries. There are no third party beneficiaries to this Agreement. For the avoidance of doubt, no User will be deemed a third party beneficiary of this Agreement.
21.7. Relationship of the Parties. The parties agree that Xos will perform its duties under this Agreement as an independent contractor. Nothing contained in this Agreement will be deemed to establish a partnership, joint venture, association, or employment relationship between the parties. Personnel employed or retained by Xos who perform duties related to this Agreement will remain under the supervision, management, and control of Xos.
21.8. Assignment. Customer may not assign this Agreement without the prior written consent of Xos, which shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Customer may assign this Agreement to a successor entity in the event of a merger, acquisition, or sale of all or substantially all of its assets. In such event, the successor shall agree in writing to be bound by the terms of this Agreement. No successor may be an existing customer or competitor of Xos. In the event of such an assignment, Xos may terminate this Agreement on written notice to Customer without further obligation.
21.9. Severability. If any of the provisions of this Agreement are found or deemed by a court to be invalid or unenforceable, they will be severable from the remainder of this Agreement and will not cause the invalidity or unenforceability of the remainder of this Agreement.
21.10. Waiver. Neither party will by mere lapse of time without giving notice or taking other action hereunder be deemed to have waived any breach by the other party of any of the provisions of this Agreement. Further, the waiver by either party of a particular breach of this Agreement by the other party will not be construed as, or constitute, a continuing waiver of such breach, or of other breaches of the same or other provisions of this Agreement.
21.11. Survival. The following provisions will survive termination or expiration of this Agreement: 1 (Definitions), 6 (Restrictions), 10 (Proprietary Rights), 11 (Fleet Data), 12 (Aggregated Data), 13 (Feedback), 15 (With regard to fees due prior to termination); 16.1 (Customer Warranty), 16.3 (Disclaimer of Warranties), 17 (Xos Indemnity) (for claims accruing prior to termination), 18 (Customer Indemnity) (for claims accruing prior to termination), 19 (Confidentiality), 20 (Limitation of Liability and Damages), and 22 (General Provisions).
21.12. Notices. Any written notice or demand required by this Agreement will be sent by registered or certified mail (return receipt requested), personal delivery, overnight commercial carrier, or other guaranteed delivery to the other party at the address set forth herein. The notice will be effective as of the date of delivery if the notice is sent by personal delivery, overnight commercial courier or other guaranteed delivery, as of five (5) days after the date of posting if the notice is transmitted by registered or certified mail. Any party may change the address at which it receives notices by giving written notice to the other party in the manner prescribed by this Section.
How to Contact Us:
3550 Tyburn Street, Unit 100
Los Angeles, CA 90065
Telephone: (855) 909-4407