Sale Agreement

Between

Xponent Power, Inc.                                                   And Buyer
48009 Fremont Blvd
Fremont, California 94538

1. Introduction. This Sale and Installation Agreement (this “Agreement”) governs Xponent Power, Inc.’s (“Xponent Power”) agreement to provide you (“Buyer” or “you”) the Xpanse™ solar system (the “System”) described below. The System will be installed by Xponent Power or an Xponent Power authorized third-party installer (“Authorized Installer”) on Buyer’s vehicle (the “Vehicle”) at Xponent Power’s facilities in Fremont, California, or at the facilities of the authorized third-party installer, as applicable (the “Facilities”). This is a legally binding agreement, so please read everything carefully.

2. Sale and Installation of System. Xponent Power agrees to sell the System components more fully described in Addendum A and incorporated herein by reference (the “Components”) and to install the System on the Vehicle at the Facilities. Buyer agrees to purchase the Components from Xponent Power and to pay for the installation of the System on the Vehicle for the aggregate Contract Price set forth in Section 3 below. Buyer expressly acknowledges and agrees that certain components necessary for the installation and operation of the System are not included in the Contract Price (the “Excluded Components”). Buyer is solely responsible for separately sourcing and paying for the Excluded Components, including those identified on Addendum A.

3. Contract Price. Buyer Buyer agrees to pay the total price as indicated on the Xponent Power website at the time of purchase, not including third party materials or equipment, and installation and any other fees and taxes.

4. Schedule of Payments due upon invoice. Buyer agrees to pay based on the schedule indicated on the Xponent Power website at the time of purchase, or as agreed to in writing with Xponent Power after purchase.

Any amounts payable by Buyer hereunder which remain unpaid after the due date shall be subject to a late charge equal to eighteen percent (18%) per annum from the due date until such amount is paid in full. Buyer agrees to pay for collection costs and any attorneys’ fees incurred by Xponent Power in collecting payment.

5. Addendums incorporated into this

6. Xponent Power’s Obligations. Xponent Power shall furnish all Components, labor and materials to complete the installation of the System as described in Section 2 above for the Contract Price, subject to the Exclusions described in Addendum A.

7. Delivery. Xponent Power shall use commercially reasonable efforts to deliver the installed System within 90 days after Buyer delivers the Vehicle to the Facilities.

8. Title and Purchase Money Security Interest. Title to the System shall transfer to Buyer when the System is installed on the Vehicle and delivered to Buyer. After delivery, Buyer shall bear all risk of loss or damage to the System from any type of physical harm, theft, or any other damage not directly resulting from Xponent Power’s or the Authorized Installer’s actions. Xponent Power reserves a purchase money security interest in the System until payment in full under the terms stated herein. A copy of this Agreement may be filed in order to protect Xponent Power’s security interest.

9. Taxes. Buyer agrees to pay amounts equal to any tax, including, without limitation, applicable sales or use tax, resulting from this Agreement or any activities under the terms provided herein, exclusive of taxes based on net income.

10. Warranties. Xponent Power shall provide to Buyer the Limited Product Warranty and Workmanship Warranty offered at the time of delivery, which can be found on the Xponent Power website.

11. Installation by Authorized Installer. Buyer agrees that Xponent Power may use the services of an Authorized Installer to assemble, construct, and complete the installation of the System on the Vehicle.

12. Performance of Excluded Services. If Buyer requests components or services outside of the standard scope of work, including, without limitation, any products or services not made by or directly provided by Xponent Power (collectively, the “Exclusions”), Buyer agrees to promptly execute a separate agreement in respect of the Exclusions with the Authorized Installer. Buyer may not require the Authorized Installer to satisfy any request for Exclusions without first signing such separate agreement. The Authorized Installer’s failure to comply with the requirements of this Section 12 does not preclude the recovery of compensation for work performed in good faith by the Authorized Installer based on legal or equitable In no event will Xponent Power be liable for the performance of any Exclusions.

13. Termination and Default. Xponent Power may terminate this Agreement for (i) the breach of any provision of this Agreement by Buyer, material or non-material, (ii) any failure of Buyer to pay Xponent Power any amount as and when due, or (iii) any bankruptcy or financial distress of Buyer.

14. Remedies Upon Buyer’s Breach. Without limiting any of Xponent Power’s other rights and remedies, upon any breach by Buyer, including any failure of Buyer to pay Xponent Power any amount as and when due, Xponent Power shall have the right to pursue any of the following remedies: (i) stop work on the installation of the System; (ii) prevention through any legal means of any more work being done to install the System until the breach is cured; (iii) recovery of all amounts due under this Agreement through the date of termination, including interest (calculated at eighteen percent (18%) per annum); (iv) removal of any Components of the System from the Vehicle; and (v) any other legal remedies.

15. Force Majeure. Neither Xponent Power nor the Authorized Installer shall be liable to Buyer for any failures or delays in the performance of any obligations under this Agreement arising out of conditions beyond its reasonable control, including, without limitation, Acts of God, extreme or severe weather conditions, national or regional emergency, explosion, fire, epidemic, pandemic, lockdown, landslide, mudslide, theft, sabotage, terrorism, cyberattack, internet outage, lightning, earthquake, flood, storms, volcanic eruption, drought, hurricanes, typhoons, tsunamis, an act of public enemy, war (declared or undeclared), blockade, civil insurrection, riot, civil disturbance, embargo, sanctions, strikes, work stoppages, or other labor difficulties or labor disputes, electrical surges, delays associated with third party product availability, acts or omissions of, or delays caused by, any governmental entity, delays in governmental or regulatory permits or approvals (including, but not limited to, delays in obtaining import or export licenses), prohibitions on import or export, delays in customs clearance, port congestion or port closures, and shipping congestion. Performance times under this Agreement will be extended for time lost due to such conditions.

16. Indemnification. Buyer shall indemnify, defend, and hold harmless Xponent Power, the Authorized Installer, and their respective employees, officers, directors, agents, representatives, and sub-contractors from any and all third party claims, actions, costs, expenses (including reasonable attorneys’ fees and expenses), damages, liabilities, penalties, losses, obligations, demands and liens of any kind (collectively, “Losses”) arising out of or relating to Buyer’s failure to perform its obligations under this Agreement, provided that Buyer shall not be required to indemnify Xponent Power or the Authorized Installer to the extent that such Losses arise from such indemnified party’s own negligence, willful misconduct, or fraud.

17. Governing Law. This Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the New York without giving effect to the conflict of laws principles thereof.

18. Entire Agreement. This Agreement contains the parties’ entire agreement regarding the purchase of the System and its installation. There are no other agreements regarding this Agreement, either written or Any change to this Agreement, and any waiver of any right hereunder, must be in writing and signed by both parties.

19. Survival. Provisions that should reasonably be considered to survive termination of this Agreement shall survive.

20. Waiver. Any delay or failure of a party to enforce any of the provisions of this Agreement or to require performance by the other party of any of the provisions of this Agreement, shall not be construed to (i) be a waiver of such provisions or a party’s right to enforce that provision, or (ii) affect the validity of this Agreement.

21. Severability. If any provision of this Agreement is found by a court or other tribunal of competent jurisdiction to be invalid, prohibited, or otherwise unenforceable, then (i) such provision shall be excluded from this 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 this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.

22. Assignment. Buyer may not assign its rights or duties under this Agreement without Xponent Power’s written permission. Xponent Power may assign or subcontract its rights and obligations hereunder, including to any successor, partner, purchaser, or installer, without consent.
23. Dispute Resolution. The parties agree to constructively review and negotiate all disputes per the terms and conditions of this Agreement. If, after twenty (20) days, the parties are unable to resolve any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity of this Agreement (each a “Dispute”), then each party agrees to submit to binding arbitration in San Francisco, California, before a panel of three arbitrators. Either party can initiate an arbitration proceeding by notifying the other party in writing. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. The parties shall each bear their respective costs and expenses, including attorneys’ fees, with respect to any arbitration. Only Disputes involving Buyer and Xponent Power may be addressed in the Buyer agrees that it cannot not pursue any Dispute as a “class action”. This means that the arbitration may not address disputes involving other persons that may be similar to the Disputes between Buyer and Xponent Power. The tribunal shall have the authority to award any legal or equitable remedy or relief that a court could order or grant. The tribunal, however, is not authorized to change or alter the terms of this Agreement or to make any award that would exceed the value of payments under this Agreement or extend to any transaction other than that between Buyer and Xponent Power. Judgment on the award may be entered in any court having jurisdiction.

NOTICE: BY INITIALLING IN THE SPACE BELOW BUYER IS AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE “ARBITRATION OF DISPUTES” PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY [STATE OF CUSTOMER’S RESIDENCE] LAW AND BUYER IS GIVING UP ANY RIGHTS IT MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY INITIALLING IN THE SPACE BELOW BUYER IS GIVING UP ITS JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE “ARBITRATION OF DISPUTES” PROVISION. IF BUYER REFUSES TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, BUYER MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE BUSINESS AND PROFESSIONS CODE OR OTHER APPLICABLE LAWS. BUYER’S AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.

THE PARTIES HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THE “ARBITRATION OF DISPUTES” PROVISION TO NEUTRAL ARBITRATION.

24. Limitation of

NO CONSEQUENTIAL DAMAGES. Each party’s liability to the other under this Agreement shall be limited to direct, actual damages only. The parties mutually agree that in no event shall either party be liable to the other for consequential, incidental, punitive, exemplary, special, or indirect damages.

ACTUAL DAMAGES. Neither party’s liability to the other will exceed [two times (2X)] the value of the payments made under this Agreement.

INDIRECT DAMAGES. Neither Xponent Power nor the Authorized Installer shall be liable to Buyer for any defect in any work or equipment that was caused by Buyer’s or any third person’s (for whom Xponent Power or the Authorized Installer, as applicable, is not responsible) misuse, neglect, unauthorized attempts to repair, or any other cause beyond the range of intended use, or by accident, fire, lighting or other hazard.

25. No Third-Party Beneficiaries. Except as otherwise expressly provided herein (including as to indemnified parties pursuant to Section 16), this 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.

26. Counterparts. This Agreement may be executed simultaneously in multiple counterparts, each of which shall be deemed an original and all of which, when taken together, shall constitute the same Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com), or another transmission method, and any counterpart so delivered shall be deemed duly and validly delivered and effective for all purposes. The signature of any party to any counterpart shall be deemed a signature and may be appended to any other counterpart.

ADDENDUM A

System Components/ Installation Services/Exclusions

SYSTEM COMPONENTS:

EXCLUSIONS:

All installation services and 3rd party components and materials are not included in the sale of Xpanse unless otherwise indicated in the Xponent Power website at the time of purchase.