TERMS AND CONDITIONS

[Dealer Agreement]

PLEASE ENSURE THAT YOU (“DEALER”) ARE FAMILIAR WITH THESE TERMS AND CONDITIONS (THESE “TERMS”).

BY EXECUTING THE DEALER AGREMENT WITH XPONENT POWER, INC. (“XPONENT POWER”), DEALER INDICATES ACCEPTANCE OF THESE TERMS, WHICH ARE EXPRESSLY INCORPORATED IN THE DEALER AGREEMENT BY THIS REFERENCE.

1. Agreement and Acceptance. These Terms are expressly incorporated in the Dealer Agreement between Xponent Power and Dealer of even date (the “Dealer Agreement”), and together with the Dealer Agreement and all Confirmed Orders, constitute the entire agreement between Xponent Power and Dealer.
2. Definitions; Interpretation

2.1          Definitions. In addition to the capitalized terms defined elsewhere in the Dealer Agreement or these Terms, the following terms shall have the meanings ascribed to them as follows:

                “Affiliate” of a Party means any Person, which, at any time during the term of the Agreement, directly or indirectly Controls, is Controlled by or under common Control with such Party (but only as long as such Person meets these requirements).

“Agreement” means the Dealer Agreement, including these Terms, and each Confirmed Order, as each may be amended and in effect from time to time.

“Applicable Law” means all applicable foreign, national, federal, provincial, state, regional or local laws, statutes, acts, constitutions, treaties, codes, regulations, permits, ordinances, rules, directives, and similar provisions having the force or effect of law, all common law and/or Governmental Orders or other requirement or rule of law of any Governmental Authority, and interpretations of any Governmental Authority having jurisdiction over the applicable matter.

“Business Day” means any day other than Saturday, Sunday, or any day on which banking institutions are authorized or required by Applicable Law to close in San Francisco, California.

“Change in Law” means and includes (a) the enactment, adoption, promulgation, issuance, modification, or repeal after the Effective Date of any Applicable Law (including, but not limited to, the enactment or modification of any Applicable Law relating to the import or export of goods and services, and any increase in the tariffs imposed by the United States of America on imports of the System or any components thereof), or (b) any change after the Effective Date in the interpretation of any Applicable Law by any Governmental Authority.

“Control” (including with correlative meanings, the terms “Controlling,” “Controlled by” and “under common Control with”) means the power, directly or indirectly, to direct or cause the direction of the management or business or policies of a Person, whether through the ownership of voting securities or partnership or other ownership interests, by contract, or otherwise (other than through super-majority rights or negative control rights of members).

“Force Majeure Event” means and includes the occurrence of any event or circumstance, not due to the fault or negligence of a Party, that adversely affects such Party’s ability to perform its obligations under the Agreement and which, despite the exercise of reasonable efforts, cannot be avoided by, and is beyond the reasonable control of, such Party, including, but not limited to: an act of God, extreme or severe weather conditions, national or regional emergency, explosion, fire, epidemic, pandemic, lockdown, landslide, mudslide, sabotage, terrorism, lightning, earthquake, flood, named storms, volcanic eruption, drought, hurricanes, typhoons, tsunamis, an act of public enemy, war (declared or undeclared), blockade, civil insurrection, riot, civil disturbance, Change in Law, strikes or other labor difficulties or labor disputes (except for strikes or other labor difficulties or labor disputes isolated to the Party claiming a Force Majeure Event), acts or omissions of, or delays caused by, any Governmental Authority, delays in obtaining governmental or regulatory permits or approvals (including, but not limited to, delays in obtaining import or export licenses), delays in customs clearance, port closures, or shipping congestion.

“Governmental Authority” means any and all foreign, national, federal, state, county, city, municipal, local or regional (or equivalent) authorities, departments, bodies, commissions, corporations, branches, directorates, agencies, ministries, courts, tribunals, judicial authorities, legislative bodies, administrative bodies, regulatory bodies, autonomous or quasi-autonomous entities or taxing authorities or any department, municipality or other political subdivision thereof.

“Governmental Order(s)” means any order, writ, judgment, injunction, decree, stipulation, award, or determination entered by or with any Governmental Authority.

“Intellectual Property Rights” means all industrial and other intellectual property rights comprising or relating to: (i) patents; (ii) trademarks; (iii) internet domain names, whether or not trademarks, registered by any authorized private registrar or Governmental Authority, web addresses, web pages, website, and URLs; (iv) works of authorship, expressions, designs, and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; (v) trade secrets; and (vi) all industrial and other intellectual property rights, including industrial designs, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights or forms of protection pursuant to Applicable Laws of any jurisdiction in any part of the world, and all documentation and media to the extent constituting, describing or relating to the foregoing, including, without limitation, manuals, memoranda and records.

“Person” means any individual, firm, corporation, company, voluntary association, partnership, limited liability company, joint venture, trust, unincorporated organization, Governmental Authority, committee, department, authority, or any other body, incorporated or unincorporated, whether having distinct legal personality or not.

“Taxes” means any and all present and future sales, income, stamp, and other taxes, levies, imposts, duties, deductions, charges, fees or withholdings imposed, levied, withheld or assessed by any Governmental Authority, together with any interest or penalties imposed thereon.

                2.2          Interpretation. As used in the Agreement, (a) the terms “herein,” “hereunder,” “herewith” and “hereof” are references to the Agreement, taken as a whole, (b) the term “includes” or “including” and similar words shall mean “including, without limitation”, (c) references to a “Section,” “subsection,” “clause,” “Article,” “Schedule” or “Exhibit” shall mean a Section, subsection, clause, Article, Schedule or Exhibit of the Agreement, as the case may be, unless specified otherwise, (d) all references to a given agreement, instrument or other document, or to any Applicable Law shall be a reference to such agreement, instrument or other document, or to such Applicable Law, as modified, amended, supplemented or restated from time to time, (e) reference to a Person or Party includes its successors and permitted assigns, (f) terms defined in the singular shall have a correlative meaning when defined in the plural, and vice versa, (g) unless expressly specified otherwise, “day” means a calendar day, and (h) all monetary amounts are expressed in US Dollars (US$) unless otherwise specified.

3. Purchase Order Process

                3.1          Issuance and Transmission. The purchase and sale of Systems under the Agreement will be implemented via Dealer’s issuance of a purchase order (each a “Purchase Order”) to Xponent Power.  Each Purchase Order will specify the order number, description and/or part number of the System, quantity of Systems ordered, date of delivery, and purchase price.  Purchase Orders will be sent by Dealer to Xponent Power by hand or email or nationally recognized overnight delivery service in accordance with the Agreement.

                3.2          Acceptance. Within five (5) days following Xponent Power’s receipt of a Purchase Order, Xponent Power shall acknowledge and provide confirmation of its acceptance of such Purchase Order by written notice via e-mail transmission delivered to Dealer (each a “PO Acknowledgment,” and together with the applicable Purchase Order, a “Confirmed Order”). Xponent Power’s acceptance of any Purchase Order, and Dealer’s purchase of Systems thereunder, is expressly limited to the terms of the Confirmed Order and the Agreement. Dealer may not cancel a Purchase Order, in whole or in part, once it has been confirmed by Xponent Power.

4. Terms of Delivery

                4.1          Delivery. Xponent Power shall arrange for Systems ordered pursuant to a Confirmed Order to be delivered to Dealer Ex Works (Incoterms 2024) Xponent Power’s facilities, Fremont, California (the “Place of Delivery”). Each delivery to the Place of Delivery shall take place on or before the delivery date specified in the applicable Confirmed Order (the “Delivery Date”), unless otherwise agreed. Systems shall be packaged, marked, and labeled in accordance with best commercial practices, and will include all required shipping documentation, if and to the extent applicable.

                4.2          Transfer of Title; Risk of Loss. Title to, and risk of loss of, Systems ordered pursuant to a Confirmed Order shall transfer from Xponent Power to Dealer upon delivery in accordance with the Incoterm specified in Section 4.1 (“Delivery”).

                4.3          Inspection. All Systems are subject to final inspection and acceptance within twenty-one (21) days after Delivery (the “Inspection Period”). Dealer may reject nonconforming Systems by providing a written notice to Xponent Power prior to the end of the Inspection Period. The written notice shall refer to the actual Confirmed Order and specify the number of Systems affected and the alleged non-conformity. Dealer shall promptly return any rejected and nonconforming Systems to Xponent Power at Xponent Power’s expense, and Xponent Power shall reimburse Dealer for all reasonable direct third-party costs and expenses incurred by Dealer as a result of the return of the nonconforming Systems. Unless rejected by Dealer by the end of the Inspection Period, the Systems delivered pursuant to the Confirmed Order shall be deemed accepted. Payment for Systems by Dealer before the expiration of the Inspection Period does not constitute acceptance and neither inspection nor payment shall relieve Xponent Power of its responsibility to furnish Systems conforming to System specifications and the Manufacturer’s Warranty as provided in the Agreement. Dealer will store Systems in a safe, dry, and secure manner to ensure quality and performance.

5. Confidential Information

5.1          Confidential Information Defined; Non-Use and Non-Disclosure.

5.1.1      Definition. Xponent Power’s Dealer Prices, and all data, information, technology, intellectual property rights, and trade secrets (including, without limitation, the identity of Xponent Power’s dealers and customers and prospective dealers and customers and their requirements, Xponent Power’s methods of doing business, Xponent Power’s proprietary technical documentation, and all information relating to the System and Xponent Power’s operations) are deemed to be “Confidential Information”. In addition, Confidential Information shall include System installation manuals and related information, as well as that portion of any notes, analyses, compilations, interpretations, memoranda, or other documents prepared by Dealer or its Representatives (as defined below) that contain, reflect, or are based upon, in whole or in part, any of Xponent Power’s Confidential Information.

5.1.2      Non-Use and Non-Disclosure. Any Confidential Information that is disclosed to Dealer, or otherwise acquired or learned by Dealer, whether in graphic, electronic, written or oral form, or ascertained from examination of prototypes, samples or models, will be treated as proprietary and confidential and will, at all times, be and remain the exclusive property of Xponent Power. Neither Dealer nor any of its officers, directors, employees, or agents may (i) disclose any Confidential Information to any person, firm, or corporation except with Xponent Power’s prior written consent; or (ii) use any Confidential Information except as necessary to fulfill its obligations hereunder. The foregoing does not apply to Confidential Information that is in, or enters, the public domain otherwise than by reason of a breach of the Agreement, including any action or inaction in violation of this Section 5,  by Dealer or any of its Representatives (and other than as the result of any privacy or security incident).

5.2          Permitted Disclosure. Dealer may disclose Confidential Information to its directors, officers, employees, and agents (“Representatives”) who have a need to know such Confidential Information, provided that each such person (or entity) is subject to a non-disclosure agreement with provisions at least as restrictive as those set forth in this Section 5. Dealer shall be responsible for any breach of the obligations set forth in this Section 5 by any of its Representatives. Dealer shall not make any copies of Confidential Information unless the same are previously approved in writing by Xponent Power. Dealer shall reproduce Xponent Power’s proprietary rights notices on any such approved copies in the same manner in which such notices were set forth in or on the original. Dealer shall promptly notify Xponent Power in writing of any actual or suspected misuse, misappropriation or unauthorized disclosure of Xponent Power’s Confidential Information which may come to Dealer’s attention.

5.3          Return of Materials. Upon the expiration or termination of the Agreement, Dealer will promptly deliver to Xponent Power all sales literature then in its possession and all written materials which contain Confidential Information, without retaining copies thereof.

5.4          Survival. Dealer’s obligations under this Section 5 will survive the expiration or termination of the Agreement and will continue until such time as the Confidential Information enters the public domain, other than by reason of a breach of the Agreement (and other than as the result of any privacy or security incident). Dealer acknowledges that a breach of this Section 5 will cause Xponent Power irreparable harm not fully compensable by monetary damages, and that upon such breach, or threatened breach, Xponent Power shall be entitled to seek specific performance and injunctive and/or other equitable relief, as allowed by Applicable Law, without the requirement of posting a bond or other security, or to prove actual damages or that monetary damages would not afford an adequate remedy, from a court of appropriate jurisdiction as a remedy for any such breach, in addition to all other remedies available under the Agreement, at law or in equity.

6. Trademarks and Trade Name

6.1          Use of Trademarks. Unless otherwise agreed by the Parties in writing, Dealer will clearly identify the System as a product of Xponent Power and will sell, market, promote, advertise, and describe the System under Xponent Power’s trademarks, trade names, model numbers, and other designations and terminology, as provided by Xponent Power (the “Trademarks”). Dealer will not use the Trademarks except as set forth herein and in connection with the sale and marketing of the System.

6.2          Non-Exclusive License.

6.2.1       Xponent Power hereby grants to Dealer a revocable, non-exclusive, non-assignable, royalty-free license to use the Trademarks in the Territory in the form and format provided by Xponent Power solely for the purpose of marketing and selling the System. Any unauthorized use of the Trademarks by Dealer will constitute an infringement of Xponent Power’s rights and a material breach of the Agreement.

6.2.2       Xponent Power will take such steps as it may deem necessary or desirable, in its sole discretion, to register and protect the Trademarks in the Territory. Dealer will fully cooperate with and assist Xponent Power in registering the Trademarks in the Territory if Xponent Power has not already done this. Dealer shall not attempt to register the Trademarks or assist any third party to register the Trademarks.

6.2.3       Xponent Power makes no representations or warranties of non-infringement with respect to the Trademarks in the Territory. In the event of any infringement of or challenge to any of the Trademarks in the Territory, Dealer will immediately notify Xponent Power. In no event will Dealer take any action with respect to such infringement or challenge without Xponent Power’s prior written consent. The Parties agree that Xponent Power will have the right, but not the obligation, at any time to initiate or assume control of the prosecution of any infringement of, or defense of any challenge to, any of the Trademarks. If any action or proceeding to terminate any infringement or defend any challenge to the Trademarks in the Territory is initiated or assumed by Xponent Power, Dealer will cooperate with and assist Xponent Power in the commencement, prosecution and resolution of such action and, in furtherance thereof, Dealer will execute any documents deemed necessary by Xponent Power. Dealer hereby waives, releases and holds harmless Xponent Power from any liability or obligation whatsoever with respect to any infringement or alleged infringement by Dealer of intellectual property rights of third parties in connection with or as a result of the use of the Trademarks.

6.2.4       Any and all goodwill arising from Dealer’s use of the Trademarks will inure solely and exclusively to Xponent Power’s benefit. Upon the expiration or earlier termination of the Agreement, the license granted in this Section 6 shall terminate immediately, and Dealer shall cease all use of the Trademarks immediately.

7. Intellectual Property Rights

7.1          Ownership of Intellectual Property Rights. Dealer agrees that Xponent Power owns, and will continue to own, all right, title, and interest in, to and under its respective patents, trademarks, trade names, inventions, copyrights, know-how, trade secrets and other Intellectual Property Rights, including those relating to the design, manufacture, operation or servicing of the System. Dealer will not be deemed by anything contained in the Agreement, or actions taken pursuant to it, to acquire any right or title to, or interest in, any Intellectual Property Right now or hereafter covering or applicable to the System or any component thereof, nor in or to any invention or improvement now or hereafter embodied in the System or any component thereof, whether or not such invention or improvement is patentable under the laws of the United States or any other jurisdiction.

7.2          Prosecution of Infringement Claims. Xponent Power has the option to prosecute any claim that the System infringes upon any third party’s Intellectual Property Rights, and Dealer will cooperate with and render assistance to Xponent Power in such prosecution. Dealer will promptly notify Xponent Power in writing of any formal or informal notice to it or institution of any proceeding against it charging infringement. If any infringement claim is made against Dealer charging that the System infringes any third party intellectual property right, Xponent Power, in its sole option, in order to mitigate any damages which might thereafter accrue both to Xponent Power and Dealer, may instruct Dealer to discontinue selling the System until such time as the dispute is settled or may defend the infringement claim, in which case Dealer will cooperate and render assistance to Xponent Power on such defense. If Dealer fails to comply promptly with said instructions of Xponent Power, Xponent Power will be discharged from any obligations or liabilities accruing thereafter. Notwithstanding the foregoing, Xponent Power shall have no obligations or liabilities accruing to Dealer in respect of such infringement claim to the extent that such claim or corresponding liabilities arise out of or relate to: (a) Dealer’s or any of its Representatives gross negligence, willful misconduct or fraud; (b) any combination of the System by Dealer with any products, services, technology, materials or equipment not approved in writing by Xponent Power or its authorized agents; (c) any modifications or changes made to the System by or on behalf of any Person not approved in writing by Xponent Power; (d) software, goods (not including the System), products or assemblies manufactured, designed or customized by Dealer or any third party; or (e) Dealer’s failure to install or have installed changes, revisions or updates to the System or any component thereof that have been instructed in writing by Xponent Power to cure any such infringement or are otherwise paid for by Xponent Power.

8. Indemnification

8.1          Dealer Indemnity. Dealer shall defend, indemnify and hold Xponent Power and its Affiliates, and its and their respective directors, officers, employees, shareholders, agents, representatives, successors, and assigns (collectively, “Xponent Power Indemnified Parties”), harmless from and against (i) any liability or expense due to claims, demands, suit, debt, liability or costs, including reasonable attorney’s fees (collectively, “Losses”), for personal injury or damage to real or tangible personal property caused by the willful misconduct or negligent acts or omissions of the Dealer or its employees, officers, directors, representatives, agents, contractors, or subcontractors; (ii) any Losses arising from claims for compensation, salary or benefits asserted by Dealer or any employee, officer, director, representative, agent, contractor, or subcontractor of Dealer; and (iii) any Losses arising from or related to Dealer’s performance of, or failure to perform, its obligations under the Agreement or third party claims based on breach of the Agreement by Dealer or any of its employees, officers, directors, representatives, agents and subcontractors, provided that Dealer shall not be required to indemnify any Xponent Power Indemnified Party to the extent that such Losses arise from such Xponent Power Indemnified Party’s own gross negligence, willful misconduct, or fraud. The foregoing indemnities are subject to the following conditions: (i) the Xponent Power Indemnified Party will provide written notice to Dealer within twenty (20) days after receiving actual notice of any third party claim, demand or other action, provided, however, that no delay on the part of the Xponent Power Indemnified Party in notifying Dealer shall relieve Dealer from any liability or obligation hereunder unless (and then solely to the extent) Dealer thereby is materially prejudiced by the delay; (ii) Dealer will have the right at its own expense to control the defense or prosecution of the claim, demand or action; (iii) the Xponent Power Indemnified Party may, at its own expense, participate with Dealer in the defense of the claim, demand or action; (iv) the Xponent Power Indemnified Party will cooperate with Dealer in the defense at Dealer’s sole cost and expense; and (v) Dealer shall not have the right to settle any claim other than for money without the prior written consent of Xponent Power and the Xponent Power Indemnified Party.

8.2          Xponent Power Indemnity. Xponent Power shall defend, indemnify and hold Dealer and its Affiliates, and its and their respective directors, officers, employees, shareholders, agents, representatives, successors, and assigns (collectively, “Dealer Indemnified Parties”), harmless from and against (i) any Losses for personal injury or damage to real or tangible personal property caused by the willful misconduct or negligent acts or omissions of Xponent Power or its employees, officers, directors, representatives, agents, contractors, or subcontractors; and (ii) any Losses arising from or related to Xponent Power’s performance of, or failure to perform, its obligations under the Agreement or third party claims based on breach of the Agreement by Xponent Power or any of its employees, officers, directors, representatives, agents and subcontractors, provided that Xponent Power shall not be required to indemnify any Dealer Indemnified Party to the extent that such Losses arise from such Dealer Indemnified Party’s own gross negligence, willful misconduct, or fraud. The foregoing indemnities are subject to the following conditions: (i) the Dealer Indemnified Party will provide written notice to Xponent Power within twenty (20) days after receiving actual notice of any third party claim, demand or other action, provided, however, that no delay on the part of the Dealer Indemnified Party in notifying Xponent Power shall relieve Xponent Power from any liability or obligation hereunder unless (and then solely to the extent) Xponent Power thereby is materially prejudiced by the delay; (ii) Xponent Power will have the right at its own expense to control the defense or prosecution of the claim, demand or action; (iii) the Dealer Indemnified Party may, at its own expense, participate with Xponent Power in the defense of the claim, demand or action; (iv) the Dealer Indemnified Party will cooperate with Xponent Power in the defense at Xponent Power’s sole cost and expense; and (v) Xponent Power shall not have the right to settle any claim other than for money without the prior written consent of Dealer and the Dealer Indemnified Party.

8.3          Comparative Negligence. It is the intent of the Parties that where negligence is determined to have been joint or contributory, principles of comparative negligence shall be followed, and each Party shall bear the proportionate cost of any loss, damage, expense, or liability attributable to that Party’s negligence.

9. Limitation of Liability

9.1          Direct Damages Only. NO PARTY NOR ANY OF ITS AFFILIATES SHALL BE LIABLE FOR LOST PROFITS OR REVENUE OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, INCLUDING DAMAGES OR LOSSES IN THE NATURE OF BUSINESS INTERRUPTION, LOSS OF REPUTATION OR GOODWILL, LOSS OF OR INCREASED COSTS RELATED TO THIRD PARTY FINANCING, OR COST OF CAPITAL IN CONNECTION WITH OR ARISING FROM OR AS A RESULT OF PERFORMING OR A FAILURE TO PERFORM ANY OBLIGATIONS UNDER THE AGREEMENT OR ANY PURCHASE ORDER, WHETHER SUCH LIABILITY ARISES IN CONTRACT, TORT, WARRANTY, PRODUCT LIABILITY, STRICT LIABILITY, OTHER APPLICABLE LAW OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE EXCEPT FOR ANY (A) LIABILITIES FOR THIRD-PARTY CLAIMS FOR WHICH A PARTY IS ENTITLED TO INDEMNIFICATION HEREUNDER, OR (B) DAMAGES ARISING FROM ANY BREACH BY DEALER OF ITS CONFIDENTIALITY OBLIGATIONS OR USE RESTRICTIONS SET FORTH IN SECTION 5, OR (C) DAMAGES ARISING FROM ANY BREACH BY DEALER OF ITS OBLIGATIONS SET FORTH IN SECTION 6, OR (D) DAMAGES ARISING FROM ANY BREACH BY DEALER OF ITS OBLIGATIONS SET FORTH IN SECTION 7.

9.2          Liability Cap. Except with regard to a party’s liability for third-party claims FOR WHICH THE OTHER PARTY IS ENTITLED TO INDEMNIFICATION HEREUNDER, DAMAGES ARISING FROM ANY BREACH BY DEALER OF ITS CONFIDENTIALITY OBLIGATIONS OR USE RESTRICTIONS SET FORTH IN SECTION 5, DAMAGES ARISING FROM ANY BREACH BY DEALER OF ITS OBLIGATIONS SET FORTH IN SECTION 6, OR DAMAGES ARISING FROM ANY BREACH BY DEALER OF ITS OBLIGATIONS SET FORTH IN SECTION 7, IN NO EVENT WILL EITHER PARTY’S AGGREGATE, CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT IN ANY CALENDAR YEAR EXCEED THE AMOUNT OF DIRECT DAMAGES UP TO THE SUM OF ALL AMOUNTS ACTUALLY PAID TO XPONENT POWER BY DEALER DURING SUCH CALENDAR YEAR. THIS LIMITATION OF LIABILITY IS CUMULATIVE, WITH ALL PAYMENTS BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT.

9.3          Acknowledgement. THE PARTIES ACKNOWLEDGE THAT THE CONSIDERATION SPECIFIED IN THE AGREEMENT REFLECTS THE ALLOCATION OF RISK SET FORTH IN THE AGREEMENT AND THAT NO PARTY WOULD ENTER INTO THE AGREEMENT WITHOUT THE FOREGOING LIMITATIONS OF ITS LIABILITY.

10. Mutual Representations and Warranties. As of the Effective Date and the date of each Delivery, each Party represents and warrants to the other that:

(a)           it is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized and is qualified to do business in all jurisdictions where failure to so qualify would have a material adverse effect on its ability to perform the Agreement;

(b)           it is not in violation of any Applicable Law or Governmental Order entered against it which, individually or in the aggregate, would materially and adversely affect its performance of any obligations under the Agreement;

(c)           there are no legal or arbitration proceedings or any proceeding by or before any Governmental Authority, now pending or (to the knowledge of such Party) threatened against it which, if adversely determined, could reasonably be expected to have a material adverse effect on the ability of it to perform its obligations under the Agreement;

(d)           it holds all permits required to allow it to perform its obligations contemplated by this Agreement;

(e)           the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby do not conflict with or result in a breach of, constitute a default under or require any consent under any Applicable Law or Governmental Order by which it is bound, or any agreement or instrument to which it is a party or by which it is bound;

(f)           it has all necessary power and authority to execute, deliver and perform its obligations under the Agreement;

(g)           the execution, delivery, and performance by it of the Agreement have been duly authorized by all necessary action on its part;

(h)           the Agreement has been duly and validly executed and delivered by it;

(i)            the Agreement constitutes a valid and binding obligation of it, enforceable against it in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, or other laws of general application referring to or affecting enforcement of creditor’s rights and general principals of equity;

(j)            it has, and shall ensure that it continues to have, sufficient financial resources in place at all times to honor all its obligations under the Agreement, including, but not limited to, product warranties and payment obligations; and

(k)           from the Effective Date and continuing through the Term, it will comply, and will cause each of its authorized agents and subcontractors to comply, with all Applicable Laws, regulations, and standards in the performance of its obligations under this Agreement, including, but not limited to laws and regulations governing labor and employment, employee health and safety, protection of the environment, and ethical practices currently in effect, and, as updated from time to time.

11. General Provisions

                11.1       Invoices. The terms, provisions or conditions of any Purchase Order, Confirmed Order, or other business form or written authorization used by either Party will have no effect on the rights, duties, or obligations of the Parties under, or otherwise modify, the Agreement, regardless of any failure of the receiving Party to object to those terms, provisions, or conditions.

                11.2       Assignment. Neither Party may assign any of its rights or delegate any of its obligations under the Agreement, whether by operation of law or otherwise, without the prior express written consent of the other Party, which shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Xponent Power may assign the Agreement (including any or all Confirmed Orders) as necessary with notice to Dealer as well as in connection with any merger or acquisition or sale of all or substantially all of Xponent Power’s or any of its Affiliate’s assets or stock (such notice to be delivered within thirty (30) days of such assignment). Such assignment will not in any event relieve the assignor of any obligations that accrue under the Agreement prior to any such assignment. Subject to the foregoing, the Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns. Any attempted assignment in violation of this Section 10.2 shall be null and void.

                11.3       Waiver and Amendment. No modification, amendment, or waiver of any provision of the Agreement shall be effective unless in writing and signed by the Party to be charged. No failure or delay by either Party in exercising any right, power, or remedy under the Agreement, except as specifically provided herein, shall operate as a waiver of any such right, power or remedy.

                11.4       Compliance with Laws. Each Party shall comply with all Applicable Laws regarding the general conduct of business.

                11.5       Severability. Each section or subsection of the Agreement will be distinct and separate and, unless otherwise specified, the invalidity or illegality of any section or subsection will have no effect on any other section or subsection, or the validity or legality of the section or subsection in question in any other jurisdiction. If any provision of the Agreement is determined by a court or other tribunal of competent jurisdiction to be invalid, prohibited, or unenforceable, then (i) such provision shall be excluded from the Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of the Agreement shall be enforceable in accordance with its terms. Notwithstanding the foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited, or unenforceable in such jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without invalidating the remaining provisions of the Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.

11.6       Force Majeure. Excluding payment obligations, a Party will not be considered in default or be liable to the other Party for any delay in performance or nonperformance caused by a Force Majeure Event. The Party affected by a Force Majeure Event will immediately give written notice to the other Party of the nature and likely duration (if it can be assessed) of the Force Majeure Event. Performance of the Agreement or any Confirmed Order will be suspended for the duration of the Force Majeure Event. Should the Force Majeure Event last for a period of longer than thirty (30) days, the Parties will meet and discuss appropriate remedial measures. The Party suffering a Force Majeure Event will give notice of the cessation of the Force Majeure Event as soon as performance of the Agreement or the specific Confirmed Order is no longer prevented.

                11.7       Headings and References. The headings and captions used in the Agreement are for convenience only and are not to be considered in construing or interpreting the Agreement.

                11.8       Independent Contractor Status. The Parties are independent contractors. The Agreement does not create a legal partnership (notwithstanding any use of the term “partner” by the Parties, which if used is meant only to convey a spirit of cooperation between the Parties), joint venture, agency, employee/employer, relationship, or franchisee/franchisor relationship between the Parties. Neither Party shall have any right, power, or authority to create any obligation or responsibility on behalf of the other, express or implied. Dealer is responsible for its own tax payments, employee benefits and other liabilities relating to Dealer’s business.

                11.9       Third-Party Beneficiaries. Except as otherwise expressly provided herein (including as to Xponent Power Indemnified Parties pursuant to Section 8.1 and Dealer Indemnified Parties pursuant to Section 8.2), the Agreement and all rights hereunder are intended for the sole benefit of the Parties hereto and shall not imply or create any rights on the part of, or obligations to, any other Person.

                11.10     Xponent Power Affiliates. Xponent Power may use one or more Affiliates to perform its obligations under the Agreement or any Confirmed Order, provided that such use will not affect Xponent Power’s obligations hereunder.

                11.11     Remedies Not Exclusive. The remedies provided for in the Agreement are in all cases cumulative and not exclusive. In the event of a breach of the Agreement, the non-breaching Party will be entitled to all rights and remedies provided by the Agreement and by Applicable Law

                11.12     Complete Understanding. The Agreement, including these Terms and all Confirmed Orders, constitute the final, complete, and exclusive agreement between the Parties with respect to the subject matter hereof, and supersede any prior or contemporaneous oral or written representations or agreements. No course of dealing or usage of trade shall be applicable unless expressly incorporated in the Agreement.