Vehicle Production Agreement
This Vehicle Production Agreement (this “Agreement”) is made and entered into effective as of Effective date (the “Effective Date”), by and between Client (Name), a Client state of incorporation corporation, with its principal place of business at Client (Address (multi-line)) (“Client”), and Company (Name) , a Company state of incorporation Company legal entity having its principal place of business at Company (Address (multi-line))(“Company” and, together with Client, the “Parties”). This Agreement is entered by and between Client and Company, establishing the terms governing, among other things, Company’s obligations to Client with regard to Company Vehicles sold to Client.
Recitals
Client owns and operates Client services description.
Company is engaged in the development and sale of Company-branded vehicles.
Company intends to develop an Product (as defined below) to enable Product description.
The Parties are entering into this Agreement in order to establish governing principles throughout the Term for the design, development, testing, and manufacturing of Product; and.
For good and valuable consideration, the sufficiency of which the Parties hereby acknowledge, the Parties therefore agree as follows:
Definitions
Unless the context expressly otherwise requires, the following terms have, for all purposes of this Agreement, the meanings specified in this Article.
“Product” means the Product description developed by Company.
“Applicable Law” means any statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, governmental order, or other requirement or rule of law and any law or requirement relating to environmental matters, immigration, data protection and privacy, wages, hours and conditions of employment, disclosure, subcontractor selection, discrimination, occupational health/safety, and the design, development, manufacturing or sale of vehicles) of any Governmental Authority (collectively, “Laws”) in an Authorized Territory, as amended from time to time, and, in each case, as may be directly applicable to this Agreement, Company, Client.
“Authorized Territory” means the Jurisdiction where the Company product is certified for sale and operation.
“Base Vehicle” means the motor vehicle currently manufactured by Company and referred to as the “Vehicle line name ” as certified for sale to end users authorized territory.
“Component Parts” means the components, parts, assemblies, packaging (inbound and outbound), direct materials, and indirect materials, hardware, and software included in or on the Company Product or otherwise used in the assembly, manufacture, delivery, and Service of the Company Product.
h) “Contract Documents” means (i) the MFA; (ii) this Agreement; (iii) all schedules, attachments, and exhibits to this Agreement specifically referenced herein; (iv) the Orders; and (v) any other agreements entered into by the Parties from time to time in connection with this Agreement.
“Delivery Location” means the location within the Authorized Territory for Delivery of Company Product set forth in the Vehicle Purchase Agreement, unless otherwise designated by Client or a Client Designated Fleet Operator in an Order, provided that any such designated location must be within the applicable Market for such Company Product unless otherwise agreed between the Parties.
“EV Credits” means all applicable tax benefits, rebates, incentives, and other benefits and advantages related to electric vehicles, including any electric vehicle credits, available from any Governmental Authority in a Jurisdiction within the Authorized Territory .
“Force Majeure Event” means fire, flood, earthquake, elements of nature or acts of God, acts of war, acts that are generally recognized as terrorism, riots, civil disorders, rebellions or revolutions, strikes or labor actions, pandemic, epidemic, directions or actions of governmental authorities, or any other similar cause beyond the reasonable control of a Party.
“Governmental Authority” means any national, international, federal, state, provincial, or local government, or political subdivision thereof, or any multinational organization, or any authority, agency, or commission entitled to exercise any administrative, executive, judicial, legislative, regulatory, or taxing authority or power, or any court or tribunal (or any department, bureau or division thereof).
Governmental Investigation” means an investigation, inquiry or request for information from a Governmental Authority concerning the Company Product.
“Jurisdiction” means a country, state, county, city, province, or other municipality.
“Non-Conformity” means any failure of a Company Product to conform to any of the Requirements in all material respects.
“Personnel” means any agents, employees, contractors or subcontractors (including Suppliers) engaged or appointed by a Party.
“Recall” means any voluntary or mandatory notification and/or remedy campaign initiated by Company or ordered by any Governmental Authority in which Company Product owners or operators are requested to have any safety issue, Non-Conformity, or emission-related defect remedied .
“Representatives” means a Party’s Affiliates and the respective officers, directors, partners, shareholders, attorneys, third-party advisors, agents, employees, contractors, subcontractors, successors, and permitted assigns of a Party and its Affiliates.
“Requirements” means each of: (i) Applicable Laws; (ii) the Safety Standards; (iii) Product Upfits; (iv) the Quality Standards; and (v) the Vehicle Warranty.
“Company Manufacturing Facility” means any one of the following locations where Company will manufacture the Company Product; and any other site designated by Company and agreed by Client (not to be unreasonably withheld, delayed, or conditioned).
“Company Tooling” means all Tooling that is required or necessary to have the Company Product (and any associated Component Parts) manufactured, assembled, delivered, and Serviced in accordance with the Requirements, whether such Tooling is located at a Company Manufacturing Facility, the facility of a Supplier, or a Service Center.
“Safety Standards” means, with respect to a particular Company Product, all applicable motor vehicle safety standards in effect on the date of manufacture of such Company Product within the Jurisdiction to which such Company Product will be delivered and similar international, federal, state and local laws governing the design, development, manufacture, or sale of vehicles.
“Service” means any and all repair, replacement, and/or maintenance services, including Vehicle Warranty work performed on Company Vehicles.
“Service Campaign” means a voluntary action, other than a Recall, initiated by Company in order to implement a modification, repair, or notification that Company determines is appropriate or is otherwise consistent with customary practice in the automotive industry to maintain the goodwill and reputation of Company, Client, the Client Designated Fleet Operators, or the Company Product.
“Service Center” means a Client or Client Designated Fleet Operator service facility.
“Service Parts” means new or factory replacement Component Parts for Company Product.
“Standard Warranty” means the warranty included of the Company Product.
“Subcontractors” means subcontractors (of any tier), agents, and Suppliers of Company (which may include Affiliates of Company).
“Supplier” means a vendor that supplies Component Parts, Service Parts, and/or Tooling to Company.
“Tariff” means a Tax imposed on the importation of any goods or products.
“Tax” means any and all present and future federal, state, provincial, and local sales, use, value-added, excise, 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.
“Third Party” means a Person other than Client, Company, or any of either Party’s Affiliates.
“Tooling” means all tooling, machinery, equipment, dies, test and assembly fixtures, jigs, gauges, patterns, casting patterns, cavities, molds, and related documentation , together with any accessions, attachments, parts, accessories, substitutions, replacements, and appurtenances thereto and related software utilized in connection therewith.
“Vehicle Warranty” means the Extended Warranty and the Standard Warranty.
Scope of the Agreement; Territory
Purpose of Agreement.
The purpose of this Agreement is to define the terms and conditions that apply between the Parties with respect to Company’s development and manufacture of the Company Product.
Contract Documents.
The contractual relationship between Client and Company with respect to Company’s development and manufacture of the Company Product will be governed by the Contract Documents. Except as otherwise specifically provided herein, the Contract Documents may not be modified, superseded, or altered except by written agreement signed by an authorized representative of Client and Company. The terms of any quotation, order, acknowledgment, bid, proposal, invoice, or other form issued by Client or Company, whether printed, by telecopy, or by electronic data interchange are hereby rejected and will not be part of the Contract Documents unless specifically agreed to in a writing signed by both Parties.
Order of Precedence.
In case of inconsistencies or conflicts pertaining to Company’s development and manufacture of the Company Product, the Contract Documents will prevail over each other in the following order of priority: (a) the MFA; (b) this Agreement; (c) all attachments to this Agreement specifically referenced herein; (d) the Orders; and (e) any other agreements entered into by the Parties from time to time in connection with this Agreement.
No Dealership Agreement.
Notwithstanding anything to the contrary in the Contract Documents (including this Agreement) or the ultimate disposition, sale, license, or distribution of the Company Product, the Parties agree that neither this Agreement nor any other Contract Document is intended to be, and will not be construed as, a franchise, dealership, or other similar type of automotive retailer agreement. Without limiting the foregoing, the Parties agree that it is their express intent that this Agreement not be enforced in accordance with any Applicable Laws related to automotive franchises or dealerships with respect to the goods and services manufactured, sold, repaired, or otherwise maintained under this Agreement (each, a “Dealership Law”).
If, notwithstanding the intent of the Parties, this Agreement is subject to Dealership Laws, the Parties expressly waive, to the full extent permitted by Applicable Law, each and every provision of such Dealership Laws that are different or additional to the terms and provisions of the Contract Documents. If any Dealership Laws cannot be waived by a Party, such Party agrees it is such Party’s intent that any provision of the Dealership Laws that are different or additional to the terms and conditions of the Contract Documents be interpreted as close as possible to the applicable provisions of the Contract Documents.
Authorized Territories.
During the Term, Company will review and confirm that the Company Products that are delivered in a Jurisdiction meet the requirements and standards of Governmental Authorities for validation or certification for operation (the “Validation Standards”) as applicable to such Jurisdiction.
Software and Vehicle Development; Manufacturing and Engineering
General.
Without limiting the terms of this Article 3, Company or its Affiliates will dedicate sufficient engineering resource to perform research, design, development, and engineering work (the “Engineering Work”) required to design, develop, manufacture, and deliver the Company Product in accordance with the Requirements. Company will have responsibility for product engineering related to the Company Product, including but not limited to testing, certification, and compliance with Applicable Laws and the Quality Standards. The Engineering Work includes all engineering, research, and development, including but not limited to, labor and material resources, including the use of Company Tooling, applied to complete the activities related to styling, design, testing, development, and certification of the Company Product. As further stated in this Agreement, Company will have responsibility over its Suppliers with respect to the design, development, and manufacturing of the Company Product.
Development and Manufacturing of the Company Product.
General. Subject to the terms and conditions of this Agreement, Company will design, develop, manufacture, test, label, package, store, handle, and perform such other services reasonably required to produce, manufacture, deliver, and sell Company Product vehicles in accordance with the Requirements.
Company Resources. Except as otherwise expressly provided in this Agreement, as between the Parties, Company is responsible for providing the facilities, land, Personnel, Component Parts, software, materials, technical knowledge, training, expertise, and other resources reasonably necessary to manufacture and deliver the Company Product in accordance with the Requirements.
Base Vehicle End of Life. Company may terminate production of the Base Vehicle and, in such event, Company may also terminate production of the Company Product. In the event that Company intends to terminate production of the Base Vehicle during the Term, and such termination would impact Company’s production of the Company Product, Company will provide Client with not less than Base vehicle notice notice prior to the end of production date for Company Product. Upon Client’s request, Company will negotiate in good faith to extend production of the Company Product to meet Client’s requirements for the Company Product through the end of the Term. If Company is unable to extend production, or identify a suitable alternative without an increase in pricing to Client, and Client has not fulfilled its Volume Guarantee and does not reasonably forecast fulfilling its Volume Guarantee prior to the Base Vehicle’s end of production
Development of Product.
Development and Conformance with Requirements. Company will design, develop, test, and perform such other services reasonably required to produce and deliver the Productfully integrated into the Hardware with and onto the Base Vehicle in accordance with the Requirements and this Agreement. If any services, functions, or responsibilities not specifically described herein are required to enable any of the foregoing, such services, functions, or responsibilities will be deemed to be implied by and included within the scope of this Agreement to the same extent and in the same manner as if expressly described herein. Company will implement and maintain processes and procedures to promptly remedy any Non-Conformity in and caused by theProduct.
Updates and New Releases. Company will ensure that each Company Product has the most recent versions, releases, or other updates to the Product at the time of shipment to Client. During Product update, Company will make available any new versions, releases, or other updates to the Product, whether via a method designated by Company and agreed by Client, including any new versions, releases, or other updates reasonably required to the Company Product throughout Product update , (collectively, “Technology Updates”), in each case without resulting in any Non-Conformities. For clarity, and without limiting the generality of the foregoing, Company will be responsible for pushing all applicable over-the-air (“OTA”) Technology Updates to the Company Product without additional cost or expense to Client. All Technology Updates will be subject to the applicable representations and warranties under this Agreement.
Safety Plan and Safety Case. In support of the intended commercial use of the Company Product operated on the Client Platform, Company will develop a Safety Plan and Safety Case consistent with industry standards .
Base Vehicle Software Updates.
Company will have primary responsibility to ensure that the Base Vehicle has the most recent versions, releases, or other updates to Base Vehicle software at the time of shipment to Client. During Base vehicle software update period, Company will make available any new versions, releases, or other updates to the software, whether via OTA or other method designated by Company, including any new versions, releases, or other updates reasonably required as a result of any Changes to the Company Product throughout Base vehicle software update period. Without limiting Company’s responsibilities under this Section, Company will provide Client OTA access to certain Base Vehicle electronics, such as the in-vehicle entertainment system, to enable Client to push its OTA software updates to these electronics. Any access to Company’s APIs for OTA access will be subject to standard API terms and conditions.
Quality Standards.
Company will manufacture the Company Product in compliance with manufacturing quality standards (such standards, the “Quality Standards”).
Testing and Inspection.
Prior to any Company Product vehicle leaving the Company Manufacturing Facility, Company will inspect and test each Company Product vehicle in accordance with the inspection and testing standards set forth in the Quality Standards. Upon Client’s prior written request, Company will consider requests for Client or its designated Representatives to inspect and observe the manufacture and testing of any Company Product vehicles at the Company Manufacturing Facility, provided that the visit does not disrupt Company’s ongoing business operations or Personnel.
Company Manufacturing Facility Tooling; Supply Chain
Capacity Constraints.
In the event of any capacity constraints (“Capacity Constraints”), Company will find an alternative source of supply of the impacted Component Parts during the period of constrained supply to the extent practicable or, to the extent not practicable, identify alternative solutions as promptly as feasible.
Company Tooling.
Company, or its Suppliers, will be responsible for purchasing or building all Company Tooling necessary to manufacture and assemble the Company Product and any Component Parts. Unless otherwise agreed by Client pursuant to a separate agreement between the Parties, Client will not provide Company any Tooling for the Company Product or any Component Parts. Company will be responsible for any and all costs and expenses associated with Company Tooling. Without limiting the foregoing, Company, at its sole cost and expense, agrees to perform all necessary repair, replacement, and maintenance on Company Tooling, including keeping the Company Tooling in the condition necessary to manufacture and assemble the Company Product in accordance with this Agreement.
Supply Chain Matters.
Suppliers. Company will be solely responsible for the Suppliers of all Company Tooling Component Parts and Product development and integration for the Company Product.
Supply Agreements. Except as otherwise expressly agreed by the Parties, Company will procure all: (i) Component Parts necessary for the manufacture and assembly of the Company Product; and (ii) Service Parts required for the repair of the Company Product, in each case, from the Suppliers or any additional or substitute Suppliers as Company determines from time to time, subject to the terms of the Aftermarket Services Agreement.
Subcontractors.
Final Responsibility. Company will be solely responsible for manufacturing and supplying the Company Product in accordance with the terms hereof. Company may subcontract any of its obligations under this Agreement; provided that Company remains fully responsible for all work performed by its Subcontractors. Company is solely responsible for making all payments due to that Subcontractor and Client is not responsible for any payments (including making payments) to any Subcontractor. The direction and supervision of Company’s and any Subcontractor’s employees rest exclusively with Company or such Subcontractor. Without limiting the foregoing, Company must ensure that the terms of each subcontract with a Subcontractor are consistent with the terms of this Agreement (to the extent applicable to such Subcontractor).
Subcontractor Failure. Company agrees that it is responsible for any act or omission of any Subcontractor that would constitute a breach of this Agreement if made or omitted by Company as though Company had so acted or failed to act.
Regulatory Compliance
Motor Vehicle Safety Conformance and Certification.
Conformance.
Vehicle Conformance. Company will ensure that each Company Product, as delivered to Client: (i) conforms to all applicable Safety Standards and other Applicable Laws in effect on the date of manufacture in the Jurisdiction for which the Company Product was ordered; and (ii) includes all certification labels, manuals, signage, and other documents required by Governmental Authorities or Applicable Laws in such Jurisdiction that are necessary for the Company Product to be sold and operated on public roads in such Jurisdiction.
Product Conformance. Company will ensure that the Product conforms to all Safety Standards and other Applicable Laws and will maintain ongoing compliance of the Product.
Testing Data. Company will maintain, at its sole cost and expense, complete and accurate copies of all testing, data, and related certification documentation required by Governmental Authorities in the Authorized Territories for the Company Product. Company will provide such documentation directly to Governmental Authorities if required in connection with an investigation, a subpoena, or other legal requirement.
Compliance and Assistance.
Company is responsible for obtaining and maintaining throughout the Term any and all required permits, licenses, or approvals from any Governmental Authority in the Authorized Territories that are necessary or appropriate for its performance under this Agreement.
Traceability.
Company will ensure for each Company Product the traceability of the Company Product in compliance with Applicable Law in the Authorized Territory.
Vehicle Identification Numbers.
Company will obtain and place on each Company Product proper vehicle identification numbers (“VIN”) for each Company Product that is Delivered to Client or a Client Designated Fleet Operator in accordance with Applicable Law.
Conflict Minerals.
Upon Client’s reasonable request, Company will provide to Client only such information and written certifications that Company has already assembled for Company’s own compliance with Applicable Laws with respect to “conflict minerals.” For clarity, Company shall not be required to conduct additional inquiries or perform additional due diligence beyond what Company undertakes for its own compliance purposes with respect to the Base Vehicle.
Emissions Certification.
To the extent any vehicle emissions requirements applicable to the Company Product are in effect during the Term in any Jurisdiction in the Authorized Territory pursuant to Applicable Laws, Company will be responsible for obtaining the applicable emissions certification of the Company Product in accordance with the Applicable Laws of such Jurisdiction and any similar Applicable Laws in the Authorized Territories.
Reports to Governmental Authorities.
General. Company will submit to the applicable Governmental Authority reports and data (each, a “Government Report”) applicable to the manufacture and operation of Company Products that are required to be submitted under Applicable Law in the Authorized Territory .
Defect Reports. Company will prepare and submit to Governmental Authorities any defect and non-compliance reports required to be submitted under Applicable Laws on the Company Product; provided, however, upon Company’s written request, Client will promptly provide Company with information in Client’s possession that is reasonably necessary for such Government Reports to be prepared including with respect to: (i) Emissions Defect Information Reports as may be required pursuant any emission-related defect and warranty submissions as may be required pursuant to the Applicable Laws of any Jurisdiction in the Authorized Territory; or (ii) any foreign defect reports that Company must submit under Applicable Law.
Vehicle Purchase; Fleet Purchase Terms
Vehicle Purchase and Ordering. Client and/or Client Designated Fleet Operators will purchase Company Vehicles and Company Products from Company in accordance with, and subject to the terms of, the MFA and this Agreement.
Fleet Purchase Terms. All matters relating to the ordering, delivery, and post-delivery servicing of the Company Product will be governed by the terms and conditions set forth in Exhibit A (the “Purchase Terms”).
Company Product Prices; Spare Parts
Purchase of Company Product. Client and/or Client Designated Fleet Operators will purchase Company Vehicles and Company Products in accordance with the terms and conditions set forth in Exhibit A (the “Purchase Terms”).
Company Product Price. The Vehicle Purchase Price for the Company Product is set forth in Schedule B.
Tax Credits and Tax Incentives. With respect to the Company Product: (a) will be entitled to retain all EV Credits and Tax Incentives that accrue to the purchaser of electric vehicles (if any); and (b) will be entitled to retain all EV Credits and Tax Incentives that accrue to the manufacturer of electric vehicles (such as greenhouse gas credits) (if any). “Tax Incentive” means any current or future federal, state, provincial, or local tax credit, deduction, exemption, rebate, or subsidy, including transferable credits or accelerated depreciation allowances, arising from the purchase or operation of the Company Product.
Financial Obligations. Except as otherwise provided in this Agreement, each Party will be responsible for its own costs and expenses related to the performance and completion of its respective responsibilities and obligations under this Agreement and the preparation, execution, and delivery of this Agreement.
Change Management
Improvements. During the Term, Company may develop and implement improvements (each, an “Improvement”) to the Company Product, including any such Improvements that are designed to: (a) mitigate obsolete components; or (b) improve manufacturability of the Company Product.
Documentation. Company will provide to Client all reasonably requested documentation for each Improvement to a Company Product.
Warranties
Representations and Warranties Under the MFA. The Representations and Warranties under the MFA are incorporated hereunder mutatis mutandis.
Company Product Warranties. Company represents and warrants to Client the performance of the Company Product pursuant to the Vehicle Warranty.
Disclaimer of Warranties. Except for the express warranties set out in this agreement, each party makes no other representations, warranties, guarantees, or conditions whatsoever, whether verbal or written, express, implied, statutory, or otherwise and hereby expressly disclaims all other representations, warranties, guarantees, and conditions, including all implied warranties or conditions of durability, merchantability, fitness for purpose, title, and non-infringement.
Field Issues; Recall; Service Campaigns; Governmental Investigations
Investigation of Field Issues.
The Parties product issues that may exist in all or a defined subset of Company Products that may involve safety or noncompliance with a Federal Motor Vehicle Safety Standard or governmental emissions control standard (“Field Issues”). Each Party will promptly report to the other Party any matter that such Party determines is a Field Issue following such Party’s standard practice for investigating potential Field Issues.
Governmental Investigations.
Investigations. Each Party will promptly, and in any event within Governmental investigation notice of receipt, notify the other Party upon the receipt of a Governmental Investigation or government finding of a safety defect or noncompliance with any Safety Standards or governmental emissions control or regulation or other Applicable Law relating to the Company Product. If Client receives an inquiry from Governmental Authorities about Company Product sold to Client or the Client Designated Fleet Operators, Client will forward that inquiry to Company and the Parties will coordinate a response. Client will cooperate, upon Company’s reasonable request, with any Governmental Investigation or government request for information or government finding of a safety defect or noncompliance with any Safety Standards or governmental emissions control or regulation or other Applicable Law relating to the Base Vehicles.
Cooperation. In connection with any request for any data or information and any allegations or inquiries from Governmental Authorities concerning suspected or alleged safety defects or noncompliance with any governmental safety standard or regulation, emissions-control standard or regulation in the Authorized Territory relating to the Company Product, or other Applicable Law relating to any Company Product, the Parties will reasonably cooperate in good faith to address such request.
Exclusions. The foregoing obligations will not be applicable to the extent a Party is either requested or prohibited by a Governmental Authority from engaging in any of the above actions or communications.
Governmental Finding.
In the event of a finding by any Governmental Authority of any safety-related defect or noncompliance with any Safety Standard or other Applicable Law relating to the Company Product, the Party receiving notice of such finding shall notify the other Party within Governmental finding notice .
Recalls; Service Campaigns.
Notices. Company will prepare all notices, bulletins, and other communications regarding Field Issues or other defects in the Company Product; provided, however, Client will timely provide information necessary for Company to distribute notices, bulletins and other communications to Client Designated Fleet Operators regarding defects or non-compliances in the Company Product.
Costs and Remediation. If any of the Company Product are the subject of a Recall or Service Campaign, then Company will perform repairs or cause repairs to be performed in accordance with the Aftermarket Services Agreement.
Confidentiality; Indemnification; Limitation of Liability; Dispute Resolution
Confidentiality.
Confidential Information.
For purposes of this Agreement, “Confidential Information” means any non-public, proprietary, technical, commercial, financial, operational, or business information disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether in written, oral, electronic, visual, or other form, including without limitation vehicle specifications, production methods, manufacturing processes, tooling designs, pricing, forecasts, customer information, business plans, trade secrets, software, prototypes, and testing data.
Obligations of Receiving Party.
The Receiving Party shall:
use the Confidential Information solely for the performance of this Agreement;
protect the Confidential Information using at least the same degree of care it uses to protect its own confidential information of similar nature, but no less than a reasonable standard of care;
not disclose the Confidential Information to any third party except to its employees, affiliates, contractors, advisors, or subcontractors who have a legitimate need to know and who are bound by confidentiality obligations no less restrictive than those set forth herein; and
not copy, reverse engineer, disassemble, or otherwise misuse the Confidential Information except as expressly permitted under this Agreement.
Exclusions.
Confidential Information shall not include information that:
is or becomes publicly available through no breach of this Agreement;
was lawfully known to the Receiving Party prior to disclosure;
is lawfully received from a third party without restriction; or
is independently developed without use of or reference to the Confidential Information.
Compelled Disclosure.
If the Receiving Party is required by law, regulation, or court order to disclose Confidential Information, the Receiving Party shall, to the extent legally permitted, provide prompt written notice to the Disclosing Party and reasonably cooperate in seeking confidential treatment or a protective order.
Return or Destruction.
Upon expiration or termination of this Agreement, or upon written request of the Disclosing Party, the Receiving Party shall promptly return or destroy all Confidential Information, except for copies required to be retained by applicable law or maintained in routine archival backup systems.
Survival.
The obligations set forth in this Section shall survive termination or expiration of this Agreement for a period of Confidentiality survival period, provided that trade secrets shall remain protected for so long as they retain trade secret status under applicable law.
Indemnification
Company Indemnification.
Company shall defend, indemnify, and hold harmless Client and its affiliates, officers, directors, employees, agents, and representatives from and against any and all third-party claims, actions, damages, liabilities, losses, judgments, penalties, costs, and expenses, including reasonable attorneys’ fees, arising out of or relating to:
bodily injury, death, or damage to tangible property caused by the negligence, recklessness, or willful misconduct of Company or its personnel;
Company’s breach of this Agreement;
defects in the vehicles or components manufactured by Company to the extent caused by Company’s failure to comply with the agreed specifications, applicable laws, or industry standards; or
allegations that Company’s manufacturing processes, materials, or technology infringe any third-party intellectual property rights.
Client Indemnification.
Client shall defend, indemnify, and hold harmless Company and its affiliates, officers, directors, employees, agents, and representatives from and against any and all third-party claims, actions, damages, liabilities, losses, judgments, penalties, costs, and expenses, including reasonable attorneys’ fees, arising out of or relating to:
Client’s breach of this Agreement;
specifications, designs, materials, or instructions provided by Client that infringe third-party intellectual property rights; or
Client’s misuse, modification, distribution, or operation of the vehicles in violation of applicable laws or Company’s written instructions.
Indemnification Procedure.
The indemnified Party shall:
promptly notify the indemnifying Party of any claim for which indemnification is sought;
provide reasonable cooperation in the defense of such claim at the indemnifying Party’s expense; and
permit the indemnifying Party to control the defense and settlement of the claim, provided that no settlement admitting fault or imposing obligations on the indemnified Party may be entered into without the indemnified Party’s prior written consent, not to be unreasonably withheld.
Limitation of Liability.
Exclusion of Certain Damages.
To the maximum extent permitted by applicable law, neither Party shall be liable to the other Party for any indirect, incidental, consequential, special, punitive, or exemplary damages, including loss of profits, loss of revenue, loss of production, loss of business opportunity, or loss of goodwill, arising out of or relating to this Agreement, whether based in contract, tort, strict liability, or otherwise, even if advised of the possibility of such damages.
Liability Cap.
Except for:(a) a Party’s gross negligence, fraud, or willful misconduct; (b) a Party’s indemnification obligations; (c) breaches of confidentiality obligations; or (d) amounts owed for payment obligations under this Agreement, each Party’s aggregate liability arising out of or relating to this Agreement shall not exceed the total amounts paid or payable by Client to Company under this Agreement during the Liability lookback preceding the event giving rise to the claim.
Allocation of Risk.
The Parties acknowledge that the limitations of liability contained in this Section are an essential basis of the bargain between the Parties and are reflected in the pricing and commercial terms of this Agreement.
Dispute Resolution.
Good Faith Negotiations.
In the event of any dispute, controversy, or claim arising out of or relating to this Agreement (“Dispute”), the Parties shall first attempt in good faith to resolve the Dispute through negotiations between senior representatives of each Party. Either Party may initiate negotiations by providing written notice describing the nature of the Dispute.
Escalation.
If the Dispute is not resolved within Negotiation period after commencement of negotiations, the Parties may escalate the matter to executive management for further discussions.
Arbitration.
If the Dispute remains unresolved within Arbitration initiation period after the initial notice of Dispute, the Dispute shall be finally resolved by binding arbitration administered by Arbitration institution in accordance with its applicable rules then in effect. The arbitration shall be conducted by Arbitrators arbitrator(s).The seat and venue of arbitration shall be Arbitration venue. The arbitration proceedings shall be conducted in the Arbitration language language. The arbitral award shall be final and binding upon the Parties and may be enforced in any court of competent jurisdiction.
Interim Relief.
Nothing in this Section shall prevent either Party from seeking interim, injunctive, or equitable relief from a court of competent jurisdiction to prevent immediate and irreparable harm, including misuse of Confidential Information or infringement of intellectual property rights.
Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of Governing law , excluding its conflict of law principles.
Term and Termination
Term.
The effectiveness of this Agreement commences on the Effective Date and, unless sooner terminated in accordance with its terms, will continue until the end of Term or until termination.
Termination for Cause.
Either Party may terminate this Agreement for cause in its entirety upon Cause termination notice prior notice, if the other Party:
materially breaches any covenant, representation or warranty hereunder or materially fails to perform any duties or obligations as set forth in this Agreement, and fails to cure such breach or failure within Cure breach period of notice of such breach or failure from the other Party; or
(i) files a voluntary petition in bankruptcy or has an involuntary bankruptcy petition filed against it, which is not dismissed within Bankruptcy dismissal period after its institution; (ii) is adjudged as bankrupt by a court of competent jurisdiction; (iii) has a receiver, trustee, conservator or liquidator appointed for all or a substantial part of its assets; (iv) ceases to do business; (v) commences any dissolution, liquidation or winding up; or (vi) makes an assignment of its assets for the benefit of its creditors.
Export Compliance
Import/Export; Customs Clearance.
Company or its designated agent: (a) will be the importer and exporter of record on all cross-border transfers, returns, and other shipments of Company Product between the Parties; (b) will not list Client on any import, export, or other customs documentation except as may be required by Applicable Law; and (c) will be directly responsible for ensuring that such cross-border transfers, returns, and other shipments comply with all export, import, and other Applicable Laws (including export licensing, shippers export declaration, and export invoice). As the importer and exporter of record, Company or its designated agent will be responsible for preparing all necessary documentation. Without limiting the foregoing, any export or import document must, among other matters, separately itemize and state the separate value for each item of hardware, software, set-up, and any non-dutiable service.
Export Control Laws.
The Company Product, Component Parts, products, services, and/or technical data delivered under this Agreement may be subject to Governing law laws and other applicable export control Laws and regulations (each, an “Export Control Law”). The Parties will comply with all Governing law and other country’s applicable Export Laws and will not export, re-export or transfer items without first obtaining all required licenses and approvals. Compliance with these Laws includes, but is not limited to, abiding by Governing law sanctions, embargoes, and prohibitions on transactions with restricted parties.
Compliance with Laws; Permits and Licences
Licenses and Compliance.
Each Party will be responsible for obtaining and maintaining all site licenses, permits, and registrations required for such Party to perform its obligations under this Agreement.
Compliance with Applicable Laws.
Each Party will comply with all Applicable Laws specifically applicable to the Party or its performance under this Agreement.
Gratuities and Ethical Compliance.
Each Party warrants that neither it nor any of its employees, agents, or representatives has offered or given any gratuities to employees, agents, or representatives of the other with a view toward securing favorable treatment with respect thereto. Each Party hereafter agrees that its employees, agents, and contractors who are performing services for the other Party on its behalf will be made aware of, and will comply with, the foregoing ethical requirements of the other Party which are set forth above.
Each Party has not and, to its actual knowledge, none of its employees, officers, or agents at any time during the last Lookback period have: (a) made any unlawful contribution to any candidate for foreign office, or failed to disclose fully any contribution in violation of Applicable Law; (b) made any payment to any federal or state governmental officer or official, or other person charged with similar public or quasi-public duties, other than payments required or permitted by the Applicable Laws of the United States or any jurisdiction thereof, or (c) have utilized child, slave, prisoner, or any other form of forced or involuntary labor, or engaged in abusive employment or corrupt business practices in the performance of their respective obligations under or in connection with this Agreement.
Audit and Inspection
Company will maintain and retain complete and accurate books and records relating to the Product Upfits under this Agreement. Company will also maintain and retain any other records required to be maintained under this Agreement or required to be kept by Applicable Laws. All such records will be retained by Company for a period of at Record retention period after any termination of this Agreement, or longer if required by Applicable Law. Nothing in this Agreement will be deemed to provide Client or its Representatives any rights to review or inspect records relating to other customers of Company or records which are not reasonably related to the Product Upfits under this Agreement.
Miscellaneous
Rights in Bankruptcy.
The Parties agree, each on behalf of itself and its Affiliates, that each Party will retain and may fully exercise all rights and licenses under this Agreement in all circumstances, including in any future bankruptcy or insolvency proceeding involving the other Party or any of its Affiliates, whether as licensees of intellectual property in a case where the Party is a debtor under the Governing law laws or similar Laws of other countries, applicable non-bankruptcy Laws, or otherwise. Without limiting the foregoing, if there is a bankruptcy or insolvency proceeding under the Governing law laws or similar Laws of other countries where a Party is a debtor (including in any proceeding where a trustee is appointed), that Party acknowledges and agrees, on behalf of itself and its Affiliates, that: if a court of competent jurisdiction approves the rejection of this Agreement under Applicable Laws:
such rejection will not result in termination of any of the other Party’s rights and licenses under this Agreement;
the rights and licenses granted to the other Party under this Agreement will be treated as licenses of “intellectual property” for purposes of Applicable Laws and, accordingly, the other Party will retain and may fully exercise all of its rights and elections under the Applicable Laws with respect to the rights and licenses granted to that Party under this Agreement; and
without limiting the foregoing, in the event such Party elects to retain its rights and licenses under this Agreement, upon written request of such Party to the other Party or any trustee appointed in the proceeding, pursuant to Applicable Laws, the debtor Party or such bankruptcy trustee (i) will provide the other Party with any materials that are the subject of the rights and licenses granted to that Party described in this Agreement (or any agreement supplementary to this Agreement), and any intellectual property otherwise required to be provided to such Party under this Agreement that is held by the debtor Party or such trustee (including any embodiment thereof); and (ii) will not interfere with the rights of the other Party provided in this Agreement to the materials and intellectual property that are the subject of the rights and licenses described in this Agreement, including any right to obtain such materials from any other entity.
Neither Party nor any of its Affiliates may (and the applicable Party, on behalf of itself and its Affiliates, hereby irrevocably waives any right to) object to or challenge any assertion of and reliance on the matters described in this Section by the other Party.
Relationship of the Parties; Onsite Employees.
Relationship of the Parties. This Agreement will not be deemed to create any partnership, joint venture, agency, or employment relationship between the Parties. Each Party will act hereunder as an independent contractor, and neither Party nor its Representatives will have any right or authority to assume, create or incur any liability or obligation of any kind, express or implied, on behalf of, or in the name of, the other Party by virtue of this Agreement. Each Party will make all of its own staffing decisions with respect to its obligations under this Agreement. Without limiting the foregoing, each Party is solely responsible for its employees including, without limitation, the payment of compensation and benefits and payments or withholdings to governmental agencies relating to its employees. The Parties agree and acknowledge that in the course of such Party’s performance of this Agreement, no Party will construe any employee of the other Party as its own employee, and nothing in this Agreement will make any employees of a Party an employee of the other Party.
Onsite Employees. Subject to the Parties’ respective rights and obligations under the NDA, the Parties may arrange for appropriate employees and representatives of each Party to have reasonable access to the premises of the other Party for the purpose of carrying out their respective obligations under this Agreement.
Notices.
Any notices required or permitted under this Agreement shall be in writing, shall refer specifically to this Agreement, and shall be sent by recognized national or international overnight courier, electronic mail or registered or certified mail, postage prepaid, return receipt requested, or delivered by hand to the below addresses for the applicable recipient. Notices under this Agreement will be deemed to be duly given: (a) when delivered by hand; (b) upon electronic mail transmission; (c) Courier notice period after deposit with a recognized national or international courier; or (d) on the delivery date indicated in the return receipt for registered or certified mail. A Party may change its contact information immediately upon written notice to the other Party in the manner provided in this Section.
If to Client:
Client (Name)
Client notice address
Attn: Legal Department
With a copy to:
Email: Client email notice
If to Company:
Company (Name)
Company notice address
With a copy to:
Email: Company notice adress
Assignment.
Neither this Agreement, nor any rights or obligations hereunder, may be transferred, assigned or delegated (by operation of law or otherwise) by either Party without the prior written approval of the other Party; provided, however, that each Party may assign this Agreement, and its rights and obligations hereunder, in its entirety, without such consent, to an Affiliate of such Party or to any successor entity in connection with a reorganization, merger, consolidation, acquisition, or other restructuring involving all or substantially all of such Party’s voting securities or assets. Any attempt to assign this Agreement in contravention of the foregoing shall be void ab initio. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns. A Change of Control will be deemed an assignment for purposes of this Section.
Joint Drafting.
In the event an ambiguity or question of intent or interpretation arises, this Agreement will be construed as having been jointly drafted by the Parties hereto and given that each Party had an equal opportunity to negotiate (and to consult with counsel in respect of) this Agreement, no presumption or burden of proof will arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement.
No Third Party Beneficiaries.
Nothing in this Agreement, express or implied, is intended to or shall confer upon any Third Party any right, benefit or remedy of any nature whatsoever under, or by reason of, this Agreement.
Amendment and Modification.
No supplement, modification, or amendment of this Agreement or any of the other Contract Documents will be binding unless executed in writing by a duly authorized officer of each of the Parties.
Governing Law.
This Agreement or the performance, enforcement, breach, or termination hereof shall be construed, governed, and interpreted in accordance with the laws of the state of Governing law state without regard to its conflict of laws principles.
Cumulative Remedies.
The rights and remedies provided for in this Agreement are cumulative and in addition to any other or further rights and remedies available at law or in equity.
Force Majeure.
If and to the extent that a Party’s (a “Non-Performing Party”) performance of any of its obligations (other than payment obligations) pursuant to this Agreement is materially prevented, hindered or delayed by a Force Majeure Event, and such non-performance, hindrance, or delay could not have been prevented by reasonable precautions by the Non-Performing Party and the Non-Performing Party is without fault, then the Non-Performing Party will be excused for such non-performance, hindrance, or delay, as applicable, of those obligations affected by the Force Majeure Event for as long as such Force Majeure Event continues and such Non-Performing Party continues to use commercially reasonable efforts to recommence performance and to mitigate the impact of its non-performance whenever and to whatever extent possible without delay, including through the use of alternate sources, workaround plans or other means. The Non-Performing Party will promptly notify the other Party of the occurrence of the Force Majeure Event and describe in reasonable detail the nature of the Force Majeure Event.
If Company fails to perform Company’s obligations in accordance with this Agreement due to the occurrence of a Force Majeure Event or disaster, the applicable costs will be adjusted in a manner such that Client is not responsible for the payment of any amounts for the portion of those Company obligations that Company fails to fulfill. Company will not be entitled to any additional payments from Client as a result of any Force Majeure Event.
Publicity.
Except as otherwise expressly permitted under this Agreement, neither Party may make any announcement about or advertise the existence of this Agreement or disclose or otherwise make available any of its terms and conditions without the prior consent of the other Party. In each instance, the Party providing such consent will have at least Publicity review period opportunity to review and provide comments to the content of and prior to such public disclosure, which comments will be reasonably considered and included by the Party seeking such consent. Notwithstanding anything to the contrary, each Party may make such disclosures concerning its entry into, and the terms and conditions of, this Agreement determined by such Party as necessary under Applicable Law or rules of a securities exchange, provided that such Party shall provide Regulatory disclosure period opportunity to review and provide comments to the content of and prior to such public disclosure, which comments will be reasonably considered by the disclosing Party.
Waiver.
The failure of either Party at any time to enforce any of the provisions of this Agreement or any right with respect thereto, or to exercise any option provided in this Agreement, will in no way be construed to be a waiver of such provisions, rights, or options or in any way affect the validity of this Agreement. No waiver of any provision of this Agreement will be deemed or will constitute a waiver of any other provision, whether or not similar, nor will any waiver constitute a continuing waiver. No waiver will be binding unless executed in writing by the Party making the waiver.
Interpretation.
In this Agreement and the exhibits, schedules, attachments, and appendices (each, an “Attachment”) to this Agreement:
the Attachments to this Agreement are hereby incorporated into this Agreement and references to this Agreement include such Attachments;
references to an Attachment or Section will be to such Attachment or Section of this Agreement, unless otherwise provided;
all headings are for reference purposes only and do not affect the interpretation of this Agreement;
references to any Law will mean references to such Law as changed, supplemented, amended, or replaced;
unless the context otherwise requires, the word “or” will be interpreted in the inclusive sense (i.e., “and/or”);
the word “including” (and its grammatical variations) will be deemed to be followed by “without limitation”;
the phrases “such as”, “for example”, or “e.g.,” will be deemed to mean “for example but without limitation”;
“will” will be construed to mean “will” and vice versa;
the singular will include the plural and vice versa;
a “year” means a calendar year, a “quarter” means a calendar quarter, a “month” means a calendar month and a “day” means a calendar day, unless otherwise described;
a capitalized term not defined but reflecting a different form or part of speech than a capitalized term that is defined will be interpreted in a correlative manner; and
this Agreement has been drafted in English, any translation into any other language will not be an official version of this Agreement and in the event of any conflict in interpretation between the English version and such translation, the English version will govern.
The Attachments referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
Severability.
In the event that any one or more of the provisions contained herein will for any reason be held to be invalid or unenforceable, such invalidity or unenforceability will not affect any other provision of this Agreement. This Agreement will then be construed as if such invalid or unenforceable provision had never been contained herein and such invalid/unenforceable provision(s) will be replaced with valid and enforceable provision(s), the commercial effect of which will be as similar as possible to the invalid or unenforceable provision.
Entire Agreement.
This Agreement, the MFA, and any Attachments or other documents executed in connection with this Agreement, together with any agreements expressly incorporated into this Agreement and all recitals in this Agreement (which recitals are incorporated as covenants of the Parties), constitute the entire understanding of the Parties in connection with the subject matter of this Agreement. This Agreement, together with the MFA, supersedes and constitutes a merger of all prior and contemporaneous proposals, negotiations, representations, understandings, commitments, and agreements, whether oral or written, with regard to the subject matter and provisions of this Agreement.
Counterparts.
This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original and all of which together will constitute one and the same agreement. Each of the representatives executing this Agreement on behalf of the Parties represents and warrants that he or she possesses the corporate power and authority to execute this Agreement on behalf of the respective Parties and that this Agreement has been duly authorized by the Parties.
In Witness Whereof, the Parties’ duly authorized representatives have executed this Agreement as of the Effective Date.
Client (Name)
Client signatory name
Client signatory title
Company (Name)
Company signatory name
Company signatory title
