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• Standard Terms and Conditions of Sale
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Standard Terms and Conditions of Sale

INTRODUCTION

Unless a preexisting Master Sales and Services Agreement (“MSA”) applies to transactions with Xirgo Holdings, Inc. or any of its affiliates or subsidiaries, these Standard Terms and Conditions of Sale apply to all offers and orders to purchase goods or services from Xirgo and to all deliveries of goods or provisions of services for orders accepted by Xirgo that result from Xirgo’s quotation, proposal, or otherwise. Any terms and conditions or modifications to these Terms contained in any of Buyer’s documentation, acceptance, negotiable instrument, acknowledgement, purchase order, or any other means of correspondence are expressly rejected and of no force or effect. Capitalized terms in this document are defined terms whose meanings are provided below.

Acceptance by Buyer (as defined below) of any Goods delivered by Xirgo or payment to Xirgo for any Goods is deemed to mean that Buyer agrees to these Terms. Xirgo’s failure to object to provisions contained in any documentation or communication from Buyer does not affect the applicability of these Terms.

DEFINITIONS

The following definitions apply in these Terms:

“Advertising Material” means any sales, promotional or advertising material supplied by Xirgo.

“Affiliate” means an entity that directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, Xirgo. For purposes of this definition, the terms “control,” “controlled by” and “under common control with” mean the direct or indirect ownership of at least a majority of the stock or shares having the right to vote for the election of directors or possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such entity.

“Buyer” means the legal entity purchasing Goods.

“Changes” means any change or modification to volume, materials, quality, warranty, shipping, delivery, timing, scope of work, specifications, or other aspect affecting the design, production, operation of Goods.

“Confidential Information” means all Xirgo’s confidential or proprietary information, whether disclosed orally or in any written, or electronic format. Confidential Information includes trade secrets, data, financial information, technical information, business strategies, designs, specifications, tests, reports, sample products or materials, manufacturing information, or any other information which Xirgo provides to Buyer as well as all copies, notes, compilations, or other documents that contain or reflect any confidential or proprietary information.

“Force Majeure” means any event that is beyond a Party’s reasonable control and that occurs without a Party’s fault or negligence. Force Majeure events include, but are not limited to, accidents, riots, insurrections, acts of terrorism, acts of piracy, acts of violence by any public enemy, acts of civil or military authorities, incursions or invasions (regardless of whether any source of an incursion or invasion is terrestrial), acts of war (regardless of whether a formal declaration of war has been made), epidemics or pandemics (regardless of whether such epidemic or pandemic results in acts of violence related to an inability of any significant number of animated or reanimated people to regulate or otherwise control their actions), fires, floods, earthquakes, severe weather events, lightning, power outages, denial of service attacks or other unauthorized third party intrusions into computing systems, unauthorized access to or interference with products and services (including viruses or malware), disruptions in the flow of data to or from networks, embargoes, strikes, shortages of required materials, delays in transportation required for the production and distribution of products or services, or the denial of or delays in processing of export licenses.

“Goods” means all physical goods, parts, products, Software, deliverables, items, technical information, or services provided by Xirgo to Buyer.

“Losses” means all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind and includes direct, indirect, or consequential losses, losses of profits, loss of reputation, and all interest, penalties, and legal costs (calculated on a full indemnity basis) and other professional costs and expenses).

“Software” means any code or instructions that enable a computer or other electronic device to perform specific tasks or functions, however stored, including but not limited to firmware, software-as-a-service, applications, programs, scripts, interfaces, or similar products/offerings, including all updates, revisions, error corrections, and subsequent versions, whether purchased separately or as part of a component or piece of hardware, and all related documentation.

“Terms” means these Standard Terms and Conditions of Sale.

“Warranty” means the express warranties granted by these Terms, subject to all disclaimers.

“Xirgo” means Xirgo Holdings, Inc., together with any of its Affiliates who may be identified as the selling entity.

GENERAL PROVISIONS

1) Taxes and Duties

1.1 Prices do not include any taxes (whether applicable now or in the future), including importation or customs taxes, applicable to Goods sold. Taxes, tariffs, and applicable import or export duties will be added by Xirgo where required to comply with applicable law and will be paid by Buyer unless Buyer provides Xirgo with a valid exemption certificate.

1.2 If the Goods are subject to an international order which originates from the United States, the following provision applies: Prices do not include duties, fees, social or welfare contributions, or taxes levied by any government or other governmental authority outside of the United States and which Xirgo may be obligated to pay whether directly or indirectly, through withholding or otherwise. In the event Xirgo is required to pay any of the foregoing, or under its normal policy is required to reimburse any employee for the same, the cost of the affected Goods will be increased by such amount.

2) Prices, Releases and Set-off

2.1 Unless otherwise agreed to or notified by Xirgo, prices apply only if the quantity of Goods ordered is released for shipment within 3 from the date of Xirgo’s confirmation of Buyer’s order. If unexpected or unplanned shipping delays are attributable to Xirgo, then prices for Goods ordered apply for up to 6 months from the date Xirgo accepts an order. Otherwise, Xirgo’s standard price in effect at time of release applies to the quantity of Goods shipped and Buyer must pay the difference in price, if any.

2.2 Notwithstanding anything else in these Terms, in the event of:

• (a) currency exchange rate fluctuation;
• (b) increase in the cost of components, raw materials or production; or
• (c) any cost, tariff, duty, or tax imposed on the Goods by a government or regulatory authority, which was not contemplated or not included by Xirgo,

then, for any such event occurring prior to shipment of Goods, Xirgo reserves the right at its sole discretion to pass any resulting additional costs to Buyer.

2.3 Buyer may not set-off any amount owed by Xirgo, for any reason, at any time, against any amount payable at any time by Buyer in connection with the applicable Agreement, without the prior express written permission of Xirgo.

3) Title and Delivery

3.1 All shipments of Goods shall be delivered ex works (EXW) Xirgo’s nominated facility (Incoterms 2020), unless otherwise agreed or required by Xirgo. Risk of loss or damage to Goods passes to Buyer in accordance with the Incoterms rules agreed or required by Xirgo. Costs of insurance and transportation and for all import duties, taxes and any other expenses incurred or licenses or clearance required at port of entry and destination will be borne by the party designated responsible as defined by the Incoterms agreed or required by Xirgo. If the Incoterms rules are updated, Xirgo reserves the right, in its sole discretion, to apply such updated version without amending these Terms.

3.2 Xirgo may deliver Goods in installments. Shipping dates are approximate only and time is not of the essence for delivery. No delay in time of delivery will give Buyer any right to claim damages, to refuse the Goods, or to wholly or partly cancel any order .

3.3 Time for delivery begins at the date of written acceptance of an order by Xirgo, but not until Xirgo has received the information and materials from Buyer necessary for Xirgo’s performance. The time for delivery ends the moment Xirgo has informed Buyer that Goods are ready for shipment at Xirgo’s nominated facility. If Buyer has not supplied Xirgo with the information and materials necessary for Xirgo’s performance within 2 weeks after the order is placed, Xirgo may cancel the order without any liability for any Losses incurred by Buyer. Buyer is liable for all costs incurred by Xirgo, including a reasonable allowance for pro-rated indirect costs and anticipated profits.

3.4 Xirgo is not be liable, under any theory of liability (including contract or tort) for any loss or expense, including consequential or other losses or expenses, incurred by Buyer if Xirgo fails to meet the specified estimated delivery schedule because of delays in production or any other delays.

3.5 Title to Goods does not pass to Buyer until Xirgo has received payment in full in cleared funds. Until title has passed to Buyer, Buyer will:

• (a) hold Goods on a fiduciary basis as Xirgo’s bailee;
• (b) store Goods separately and ensure they are easily identifiable from all other goods;
• (c) maintain Goods in good condition and keep them insured against all risks for their full price on Xirgo’s behalf from the date of delivery; and
• (d) notify Xirgo immediately if it becomes or is likely to become subject to any risk of insolvency, administration, moratorium, scheme of arrangement or similar proceedings in any jurisdiction.

3.6 Before title to Goods passes to Buyer, if Buyer becomes or is likely to become subject to any risk of insolvency, administration, moratorium, scheme of arrangement, receivership, or similar proceedings in any jurisdiction, then without limiting any other right or remedy Xirgo may have, Xirgo may at any time require Buyer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product. If Buyer fails to do so promptly, Buyer will, immediately on demand and without delay, enable Xirgo, its Affiliates, agents, contractors, representatives or assignees to obtain access to Buyer’s premises or the premises of any third party where Goods are stored, in order to permit Xirgo to recover the Goods at Buyer’s cost.

4) Quantities

Any variation in quantities shipped over or under the quantities ordered that does not to exceed 10% is deemed to constitute compliance with Buyer’s order. The stated unit price of Goods will continue to apply, subject to the provisions in Section 9.

5) Payment Terms

5.1 Payment is due 30 days from date of invoice unless agreed otherwise in writing between Buyer and Xirgo. When Xirgo has extended credit to Buyer, Xirgo reserves the right to modify the amount of credit or terms of payment, to revoke Buyer’s credit, or to decline to extend further credit to Buyer at any time. Xirgo reserves the right to charge interest on late payments in an amount of 1.5% per month or, if less, the maximum amount allowed by law.

5.2 If Goods are delivered in installments, Buyer will pay for each installment separately.

5.3 Payment must be made for Goods without regard to whether Buyer has made or may make any inspection of Goods.

5.4 Time for payment is of the essence and no payment shall be deemed to have been made until Xirgo has received full payment in cleared funds.

5.5 If shipments are delayed by Buyer beyond the agreed upon delivery date, payments are due 30 days after the previously agreed to delivery date. Any Goods held beyond the agreed to delivery date by Xirgo at the request of Buyer will be held at Buyer’s risk of loss and expense. Xirgo reserves the right to charge storage, handling, and other fees incurred in connection with holding Goods beyond the agreed delivery date.

6) Contingencies and Force Majeure

Xirgo is not liable for any delay in delivery or for non-delivery, in whole or in part, caused by Force Majeure. Xirgo in its sole discretion may allocate production and deliveries among its customers.

7) Substitutions and Modifications of Goods

Unless otherwise expressly agreed to by the parties in writing, Xirgo may modify the specifications or designs of Goods and substitute modified Goods that substantially conform to the original specifications contained in the relevant order for Goods manufactured to original specifications.

8) Legal Compliance

Buyer, at all times, must comply with all applicable laws and regulations.

9) Changes

Any Changes requested by Buyer are deemed automatically rejected unless specifically approved in writing by Xirgo. Xirgo reserves the right, in its sole discretion, to adjust the price and/or delivery schedule of all Goods affected by Buyer’s requested Changes. Xirgo reserves the right to adjust, suspend, decrease, or discontinue the manufacture or production of any Goods and implement Changes in its sole discretion.

10) Warranties and Remedies

THE FOLLOWING WARRANTIES ARE IN LIEU OF ANY AND ALL OTHER WARRANTIES OR CONDITIONS WHETHER EXPRESS OR IMPLIED. XIRGO EXPRESSLY DISCLAIMS ANY WARRANTY NOT EXPRESSLY GRANTED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. XIRGO’S SOLE AND EXCLUSIVE LIABILITY FOR ANY BREACH OF THE FOLLOWING WARRANTIES IS ITS OBLIGATION TO REPAIR OR REPLACE GOODS OR TO REFUND THE PURCHASE PRICE OF GOODS PAID BY BUYER, AS DETERMINED BY XIRGO IN ITS SOLE DISCRETION.

10.1 Xirgo warrants to Buyer that:

• (a) Goods will be free from defects in workmanship and materials;
• (b) Goods will conform to Xirgo’s written specifications and drawings (subject to Section 7); and
• (c) at the time of delivery, Xirgo has title to Goods free and clear of any and all liens and encumbrances.

10.2 The Warranty term for cameras is 2 years from the date of shipment and for all other devices is one year from the date of shipment, or in each case, such longer period as may be required by operation of law but only (i) to the extent such other period applies to the order and (ii) for the minimum period legally required (the “Warranty Period”). Xirgo gives no warranty as to samples, Goods or products that are used in HAST applications (High Accelerated Temperature/Humidity Stress Test), experimental or developmental goods, or goods not manufactured by Xirgo. For goods not manufactured by Xirgo, where permitted by Xirgo’s contract with its supplier, Xirgo will assign to Buyer any rights Xirgo may have under any warranty of the supplier.

10.3 The Warranty and Warranty Period may not be enlarged, diminished, or affected by, and no obligation or liability will arise or occur from Xirgo’s provision of technical advice or service in connection with Buyer’s order of the Goods.

10.4 If the Goods furnished by Xirgo fail to conform to the Warranty, Xirgo’s sole and exclusive liability shall be (at Xirgo’s option) to repair, replace or credit Buyer’s account for any Goods which are returned by Buyer during the applicable Warranty Period, provided that:

• (a) Xirgo is promptly notified in writing upon discovery by Buyer that such Goods failed to conform to the Warranty, with a detailed explanation of any alleged non-conformity;
• (b) Immediately after notifying Xirgo of such failure to conform, such Goods are returned, at Buyer’s expense to Xirgo at Xirgo’s facility per Xirgo’s written instructions or as agreed in writing between the parties; and
• (c) Xirgo’s examination of such Goods proves to Xirgo’s satisfaction that the alleged nonconformities actually exist and were not caused by accident, misuse, neglect, alteration, improper installation, unauthorized repair, improper testing or by any other means beyond the control of Xirgo.

10.5 If Xirgo elects to repair or replace defective Goods, Xirgo has a commercially reasonable time to make the repairs or replace the Goods. If Xirgo, in its sole discretion, determines that the alleged nonconformity does not fall within the Warranty, Buyer will reimburse Xirgo for all costs associated with Xirgo’s inspection of the Goods.

10.6 Nothing in the Terms limits or excludes any liability which cannot legally be limited, including liability for:

• (a) breach of any statutory implied terms which cannot be limited or excluded, including but not limited to the terms implied by section 12 of the UK Sale of Goods Act 1979 (title and quiet possession);
• (b) the terms relating to defective products under the UK Consumer Protection Act 1987;
• (c) the terms relating to defective products under the Danish Product Liability Act and the unwritten product liability rules under Danish law; and
• (d) any liability under the German Product Liability Act.

10.7 Any statutory implied terms which can be legally excluded as a result of the terms contained in these Conditions are, to the fullest extent permitted by law, excluded from these Conditions, including but not limited to:

• (a) the terms implied by sections 13 to 15 of the UK Sale of Goods Act 1979;
• (b) the terms implied by sections 3 to 5 of the UK Supply of Goods and Services Act 1982; and
• (c) § 445a (1) German Civil Code (Bürgerliches Gesetzbuch; "BGB") and pursuant to § 445a (2) BGB (also with regard to the corresponding applicability pursuant to § 445a (3) BGB).

10.8 Xirgo expressly disclaims the terms, conditions, and applicability of the United Nations Convention on Contracts for the International Sale of Goods.

10.9 Xirgo reserves the right to use a third party to service the Warranty.

10.10 This Section 10 can only be amended by a written document signed by an authorized representative of Xirgo.

11) Indemnity

Buyer agrees to indemnify and hold Xirgo and its Affiliates, and each of Xirgo and its Affiliates’ agents, contractors, consultants, suppliers, licensors, employees, officers, directors, successors, permitted assigns and insurers harmless from all Losses, arising out of or in connection with:

• (a) the application of Goods to Buyer’s designs and/or products, or Xirgo’s assistance in the application of Goods;
• (b) use of Goods by Buyer’s customers;
• (c) use of Goods for any applications outside Xirgo’s product specifications or which have not been agreed to in writing in advance between the parties;
• (d) any negligent acts or omissions of Buyer or its Affiliates, or each of Buyer’s and its Affiliates’ agents, contractors, consultants, customers, employees, officers, directors, successors or permitted assigns; or
• (e) Buyer’s breach of the Agreement or these Conditions.

12) Limitation of Liability

BUYER’S ATTENTION IS DRAWN IN PARTICULAR TO THIS SECTION 12.

12.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, XIRGO’S TOTAL AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS, LIABILITIES, COSTS, EXPENSES, PENALTIES, OR DAMAGES ARISING UNDER THE AGREEMENT, IN NO EVENT WILL EXCEED THE AMOUNT OF THE PURCHASE PRICE RECEIVED BY XIRGO FOR THE GOODS GIVING RISE TO THE CLAIMS IN THE ONE YEAR PERIOD PRIOR TO THE OCCURRENCE OF THE EVENT GIVING RISE TO THE CLAIMS.

12.2 UNDER NO CIRCUMSTANCES WILL XIRGO BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, COLLATERAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR LOSSES OF ANY KIND, OR LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA, LOSS OF OPPORTUNITY, OR ECONOMIC LOSSES, WHETHER ARISING FROM BREACH OF CONTRACT, WARRANTY, TORT, INDEMNIFICATION OR OTHERWISE, AND REGARDLESS OF WHETHER XIRGO HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.

12.3 Under no circumstances will Xirgo be liable for:

• (a) natural wear and tear;
• (b) consumables, including but not limited to wires and batteries, where the normal decrease of their performance over time and as a result of the intended use by Buyer will not be considered a defect that is subject to the Warranty;
• (c) any damage caused by Goods or any damage caused by the use of Goods, if Buyer has failed to follow instructions from Xirgo (or the manufacturer’s instructions including use for non-approved applications outside the product specification) or fails to implement a Software upgrade recommended by Xirgo;
• (d) incorrect assembly, installation, repair or maintenance by Buyer or a third party commissioned by Buyer;
• (e) any damages which are attributed to abuse, misuse, incorrect or unusual use of Goods, or which are caused by Buyer’s or a third party’s products, services or interference;
• (f) any damage to property occurring while Goods are in the possession of Buyer or Buyer’s agents;
• (g) any damage to products manufactured by Buyer, or of other products of which Buyer’s products form a part; or
• (h) any damage to commercial property.

13) Acceptance of Goods

Goods are deemed accepted by any of the following actions of Buyer:

• (a) the absence of a particularized rejection of the Goods after a reasonable opportunity to inspect the Goods;
• (b) act of Buyer inconsistent with Xirgo’s ownership of the Goods; or
• (c) express acceptance or payment for the Goods.

Buyer’s acceptance of any part of a shipment of Goods is an acceptance of all the Goods in that shipment.

In the absence of the foregoing, Goods are deemed accepted by Buyer thirty (30) days following delivery of the Goods to Buyer.

14) Intellectual Property

14.1 The sale of Goods to Buyer under the Agreement does not grant, convey, or confer upon Buyer or any third party, a license or any right whether express or implied, to Xirgo-owned patents, trademarks, copyrights, know how, trade secrets, work product, proprietary information, or any other Xirgo-owned intellectual property. Buyer may not reverse engineer, decompile, or disassemble the Goods or any part thereof, or attempt to do so, except and only to the extent that such activity is expressly permitted by applicable law.

14.2 Xirgo will defend any suit or proceeding brought against Buyer which is based on a claim that any Goods directly infringe upon any U.S. patent duly issued and Xirgo will pay all damages and costs finally awarded against Buyer in relation to such claim, provided that Xirgo is promptly informed and provided with a copy of each communication, notice or other action relating to the alleged infringement and is given sole authority over the defense and settlement of such claim and information and assistance (at Xirgo’s expense) necessary to defend or settle the suit or proceeding. Xirgo’s obligations under this Section 14.2 do not apply to any continued activities alleged to constitute infringement that occur after Buyer has received notice of such suit or proceeding alleging the infringement, unless Xirgo has given written permission for such continuing activities.

14.3 If any Goods manufactured and supplied by Xirgo to Buyer are finally determined by a court of competent jurisdiction to infringe any valid U.S. patent duly issued, Xirgo will at its option and at its expense:

• (a) use its reasonable efforts to procure for Buyer the right to use such Goods free of any liability for patent infringement; or
• (b) use its reasonable efforts to replace such Goods with a non-infringing substitute otherwise complying substantially with all requirements of the Agreement; or
• (c) refund the purchase price and the transportation costs of such Goods.

14.4 If infringement by Buyer is alleged prior to completion of delivery of Goods, Xirgo may delay further shipments or decline to make further shipments without being in breach of these Terms. If Xirgo has not been prevented from selling the Goods to Buyer, Xirgo may agree at Buyer’s request to supply the Goods to Buyer and the patent indemnity obligation set out in Section 14.2 provided by Xirgo to Buyer, will instead be provided by Buyer to Xirgo.

14.5 Xirgo’s obligations pursuant to Section 14.2 do not apply if the infringement arises out of or in connection with:

• (a) compliance with Buyer’s specification(s), designs, or instructions;
• (b) combination with, or in addition to, other products, equipment, Software or data not supplied by Xirgo;
• (c) modification of Goods after delivery by Xirgo that was made without Xirgo’s written authorization;
• (d) use of Goods not in conformity with Xirgo’s recommended usage and instruction; or
• (e) use of a version of any Software or firmware in connection with Goods, other than the most recent version provided or made available by Xirgo,

(subsections 14.5(a) to (e), each an “Excluded Claim”).

If any suit or proceeding is brought against Xirgo based on an Excluded Claim, then the patent indemnity obligations set out in Section 14.2 provided by Xirgo to Buyer, will instead be provided by Buyer to Xirgo.

14.6 Xirgo may provide or develop Software for use with Goods, either incorporated into the Goods or supplied separately. All Software is subject to Xirgo's End User License Agreement, available at www.xirgo.com, as may be updated or changed from time to time.

14.7 Buyer acknowledges and agrees that all property, copyright, patent, trade secret, industrial or shop rights, and other intellectual property rights in any work or tangible deliverable item arising from or created, produced or developed by Xirgo under or in the course performing any activities subject to these Terms, including without limitation all rights, title and interest in and to Goods, software and all documents, data drawings, specifications, articles sketches, reports, inventions, improvements, modifications, discoveries, tools, scripts and other items will immediately upon creation or performance vest in, are, and remain the sole and exclusive property of Xirgo. Buyer does not acquire any right, title, or interest in or to the same.

14.8 Any Advertising Material is the property of Xirgo. Buyer may use the Advertising Material only in accordance with the instructions of Xirgo and in relation to the sale of Goods. Buyer may not authorize any third party to use the Advertising Material.

14.9 Buyer may only advertise the Goods and use the Advertising Material and the trademarks of Xirgo for advertising the Goods if Xirgo has granted its prior express consent in writing. Xirgo may withdraw its consent at any time and in its sole discretion. If Xirgo withdraws its consent, all advertising of Buyer involving the Advertising Material, any of Xirgo’s intellectual property, or otherwise relating to the Goods must be ceased at Buyer's expense according to the instructions of Xirgo. Buyer is responsible to ensure that all advertising measures or advertisements fulfill the applicable statutory requirements, if any, and do not breach any intellectual property rights of third parties.

14.10 This Section 14 states the sole and exclusive liability of Xirgo for any patent infringement and is in lieu of all other warranties or conditions, express, implied or statutory.

15) Confidential Information

15.1 Buyer may not disclose Confidential Information to any third parties unless Buyer receives Xirgo’s express written consent to the disclosure. Buyer may use Confidential Information solely for purposes related to these Terms.

15.2 Buyer may only disclose Confidential Information to those employees, directors, or officers of Buyer who have a need to know the Confidential Information for purposes relating to these Terms. Such representatives of Buyer must execute an agreement that requires them to treat and protect Confidential Information in a manner that is consistent with this provision or otherwise be bound by confidentiality obligations that are at least as restrictive as those found in these Terms. Buyer is liable for any breach of this Section 15 by its employees, directors, or officers.

15.3 Obligations under this provision continue until any Confidential Information disclosed to Buyer is publicly known and available through no act or omission of Buyer and without respect to any breach of confidentiality owed to Xirgo by any party.

15.4 Upon termination or expiration of any relationship between the Parties subject to these Terms, or upon request of Xirgo, Buyer will destroy all Confidential Information, and certify the destruction in writing, or return all Confidential Information to Xirgo.

16) Termination and Cancellation

16.1 Without affecting any other right or remedy available to it, Xirgo may immediately terminate all or part of these Terms for convenience by giving Buyer written notice thereof (subject to any longer notice period required by law in the applicable Xirgo jurisdiction), without Xirgo incurring any liability whatsoever. Buyer is liable to promptly pay for all Goods delivered to Buyer prior to the termination of these Terms.

16.2 Without affecting any other right or remedy available to it, Xirgo may terminate these Terms with immediate effect by giving written notice to Buyer if:

• (a) Buyer commits a material breach of any term of these Terms and (if such breach is remediable) fails to remedy that breach within a period of 10 business days after being notified in writing to do so;
• (b) Buyer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
• (c) Buyer suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
• (d) Buyer’s financial position deteriorates so far as to reasonably justify Xirgo’s opinion that Buyer’s ability to give effect to the terms of the Agreement is in jeopardy.

16.3 Without affecting any other right or remedy available to it, Xirgo may terminate these Terms with immediate effect by giving written notice to Buyer if:

• (a) Buyer fails to pay any amount due on the due date for payment; or
• (b) there is a change of control of Buyer.

16.4 Without affecting any other right or remedy available to it, Xirgo may suspend all further deliveries of Goods under these Terms or any other contract between Buyer and Xirgo if Buyer fails to pay any amount due on the due date for payment, Buyer becomes subject to any of the events listed in this Section 16, or Xirgo reasonably believes that Buyer is about to become subject to any of them.

16.5 Buyer does not have the right to terminate any order after written acceptance by Xirgo, without the consent of Xirgo in writing. If Xirgo accepts such termination, Buyer is liable for termination charges which will include a price adjustment based on the quantity of Goods actually delivered, and all costs, direct or indirect, incurred and committed for the Agreement together with a reasonable allowance for pro-rated expenses and lost profits. Any notice or request of Buyer regarding cancellation or suspension (or use of any similar terminology) with respect to any order is deemed an attempt to terminate the order and subject to the provisions of this Section 16.5.

17) Non-Waiver of Default and Collection Rights

17.1 In the event of any default by Buyer, Xirgo may invoke any remedy provided by law or by the Terms, and may decline to make further shipments. If Xirgo elects to continue to make shipments, Xirgo’s actions do not constitute a waiver of any default by Buyer, an election of claims or remedies by Xirgo, or in any way affect Xirgo’s legal remedies for any such default.

17.2 In the event Xirgo resorts to a third party or to litigation in order to collect amounts owed to Xirgo, without prejudice to any other remedy available to Xirgo, Buyer agrees to pay costs of collection for amounts owed to Xirgo, including but not limited to, attorney’s fees, court costs, applicable storage charges or inventory carrying charges, and interest in the amount of the lesser of 1.5% per month or the maximum amount allowed by applicable law, from the date the amount is due.

18) Applicable Law and Forum

18.1 The validity, performance, and construction of these Terms, as well as all applicable Agreements, is governed by the laws of the State of Illinois and the United States of America without regard to conflicts of law provisions that would result in the application of the law of any other jurisdiction. All conflict of laws provisions are excluded and the United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed and does not apply.

18.2 The courts in and for Cook County, Illinois have exclusive jurisdiction over any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with any Agreement or its subject matter or formation or these Terms. Buyer irrevocably submits to the personal jurisdiction and venue of such courts, and irrevocably waives any objection to the personal jurisdiction or venue of such court. Buyer agrees to accept service of process issuing from such courts.

19) Trade Compliance

19.1 Buyer will comply with US and all other applicable export control and trade compliance laws and regulations. Buyer may not sell, export, re-export, transfer, divert or otherwise dispose of Goods or any direct product of Software or technical information (individually and collectively, “Trade Items”) directly or indirectly to any person, firm, entity, country or countries prohibited by US or other applicable export control laws and regulations. Where applicable, Buyer will not re-export any Trade Items directly or indirectly to or for use in Russia or Belarus.

19.2 Each party agrees to obtain any necessary export license or other documentation (for example, an End-User Statement) prior to the exportation or re-exportation of any Trade Items covered under these Terms. Each party will secure, at its own expense, such licenses and export and import documents as are necessary to fulfill its obligations under these.

19.3 Even if orders under these Terms are placed domestically, the order fulfillment might include cross-border movements of Trade Items. In such cases the party responsible for export or import clearance is deemed to be the party defined responsible in the applicable Incoterms.

19.4 Buyer will comply with minimum supply chain security standards as defined by the WCO SAFE Framework (for example, CTPAT or AEO programs). Xirgo requires the Buyer to implement appropriate security measures throughout its supply chains, as warranted.

19.5 All drawback or Inward Processing Relief (IPR) of duties, and rights thereto, related to duties paid by Xirgo or its suppliers upon importation of the Goods or any materials or components that enter into the manufacture of the Goods accrue to the exclusive benefit of Xirgo. Such duty drawback rights include rights developed by substitution and duty drawback rights obtained from sub-tier suppliers related to the Goods. Buyer will provide Xirgo or a designated third-party drawback broker with all documents, records, and other supporting information necessary to obtain any duty drawback and will reasonably cooperate with Xirgo to obtain payment.

19.6 Buyer will take all necessary steps to ensure compliance. Upon request by Xirgo and at its own expense, Buyer will provide such written assurances and other documentation to Xirgo as necessary to comply or demonstrate compliance. If Buyer becomes aware of any potential or actual violation, Buyer will immediately notify Xirgo in writing and take immediate necessary corrective actions.

19.7 Buyer is liable for, and will indemnify and hold Xirgo harmless from and against all claims, settlements, judgments, penalties, fines, and expenses (including without limitation attorneys’ fees and costs) that arise out of, relate to, or result from any breach related to trade compliance. Xirgo reserves the right to terminate these Terms with immediate effect in the event of any breach by Buyer related to trade compliance.

20) Assignment

The rights and obligations under these Terms may not be assigned or transferred by Buyer without the prior written consent of Xirgo. Any assignment or attempted assignment, whether by voluntary act or operation of law, is null and void, unless it is approved in writing by Xirgo. The rights and obligations under these Terms may be assigned or transferred by Xirgo at any time without the prior written consent of Buyer.

21) Tools and Dies

21.1 All tools and dies, including without limitation, fixtures, gauges and assembly equipment manufactured or purchased by Xirgo are Xirgo’s property unless otherwise agreed to in writing by Xirgo.

21.2 Any tools or dies that are Buyer’s property pursuant to any mutual agreement between Buyer and Xirgo will be held at Buyer’s sole risk and expense. Xirgo is not liable for loss, damage, maintenance, repair or replacement, regardless of cause. If Buyer desires to withdraw such tools and dies from Xirgo’s plant, and if Xirgo consents to Buyer’s withdrawal, Buyer will compensate Xirgo for any cost owed or incurred with respect to such items, including, without limitation, design and development costs and storage costs for the period such are stored on Xirgo premises and not used in Goods supplied by Xirgo to Buyer.

22) Severability of Terms

If any provision or part-provision of these Terms is or becomes invalid, illegal or unenforceable, it will be modified, to the extent permitted by law, to give effect to the original provision as nearly as possible. The validity and enforceability of the rest of the Terms is not affected. If any provision or part provision of the Terms cannot be modified under this Section 22 then the parties will negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.

23) Release of Information

In no event will Buyer , publicly announce or otherwise disclose the existence of any relationship between Buyer and Xirgo, or release any publicity regarding the same, without the prior written consent of Xirgo. This provision survives the expiration, termination or cancellation of these Terms.

24) Modification

Except as set out in these Terms, no variation of these Terms is effective unless it is agreed in writing and signed by a duly authorized representative of Xirgo.

25) Order of Precedence

If there are any inconsistencies or conflicts between these Terms and the terms on any other document, precedence will be given to these Terms unless the parties agree in writing to the contrary.

26) Waiver

A delay or failure to exercise and remedy or the single or partial exercise of any right or remedy does not waive that or any other right or remedy, nor does it prevent or restrict the further exercise of that or any other right or remedy.

27) Compliance with Anti-Corruption and Anti-Bribery Laws

Buyer represents and warrants to Xirgo that:

27.1 Buyer, and to its best knowledge, its partners, officers, directors, employees, agents, and anyone acting on its behalf (collectively, the “Buyer Representatives”) are in compliance with all applicable anti-bribery and anti-corruption laws, including but not limited to the US Foreign Corrupt Practices Act and the UK Bribery Act 2010 and any analogous laws that apply by operation of law to these Terms (collectively, the “Anti-Bribery Laws”).

27.2 Neither Buyer, nor to its best knowledge, any of Buyer’s representatives has, directly or indirectly, offered, paid, promised, or authorized the giving of money or anything of value to any:

• (a) Government Official; or
• (b) other person or entity while knowing or having reason to believe that some portion or all of the payment or thing of value will be offered, given, or promised, directly or indirectly, to a Government Official or another person or entity,

for the purpose of:

• (c) influencing any act or decision of such Government Official or such person or entity in his/her or its official capacity, including a decision to do, omit, or fail to do any act in violation of his/her or its lawful duties or proper performance of functions; or
• (d) inducing such Government Official or such person or entity to use his/her or its influence or position with any Government Entity or other person or entity to influence any act or decision;

in order to obtain or retain business for, direct business to, or secure an improper advantage for Xirgo or Buyer.

27.3 Neither Buyer, nor to its best knowledge, any of the Buyer Representatives has a personal, business, or other relationship or association with any Government Official or Close Family Member of any Government Official who may have responsibility for or oversight of any business activities of Buyer, or any member of its group (which means subsidiaries, ultimate holding company and subsidiaries worldwide), other than any relationships or associations that have been disclosed in writing to Xirgo.

27.4 Neither Buyer, nor to its best knowledge, any of the Buyer Representatives is or has been the subject of any investigation, inquiry, or enforcement proceeding by any court, governmental, administrative, or regulatory body, or customer regarding any violation or alleged violation of any Anti-Bribery Laws.

27.5 The following definitions apply to this Section 27:

• (a) “Close Family Member” means (i) the individual’s spouse; (ii) the individual’s and the spouse’s grandparents, parents, siblings, children, nieces, nephews, aunts, uncles, and first cousins; (iii) the spouse of any persons listed in subcategories (i) and (ii); and (iv) any other person who shares the same household with the individual.
• (b) “Government Entity” means (i) any national, state, regional, or local government (including, in each case, any agency, department, or subdivision of such government); (ii) any political party; (iii) any entity or business that is owned or controlled by any of those bodies listed in subcategory (i) or (ii); or (iv) any international organization, such as the United Nations or the World Bank.
• (c) “Government Official” means (i) any director, officer, employee, agent, or representative (including anyone elected, nominated, or appointed to be a director, officer, employee, agent, or representative) of any Government Entity, or anyone otherwise acting in an official capacity on behalf of a Government Entity; (ii) any political party, political party official, or political party employee; (iii) any candidate for public or political office; (iv) any royal or ruling family member; or (v) any agent or representative of any of those persons listed in subcategories (i) through (iv).

28) Compliance with Data Protection and Personal Information Protection Laws

28.1 From time to time Xirgo may transfer data acquired from Buyer for the purpose of carrying out the performance of an agreement with any of its Affiliates worldwide. The data collected may be transferred to, and stored at, a destination outside the European Economic Area (“EEA”) or the UK. It may also be processed by staff operating outside the EEA or the UK who work for Xirgo. By submitting data, Buyer agrees to this transfer, storing or processing. Xirgo will take reasonable steps necessary to ensure that Buyer’s data is treated securely and in accordance with the practices contained in applicable data protection laws including but not limited to the General Data Protection Regulation (EU) 2016/679 and the UK Data Protection Act 2018.

28.2 Buyer agrees that if Buyer needs to provide any personal information of its employees/personnel within the People’s Republic of China to Xirgo in relation to or for the performance of the Agreement, Buyer will, in a timely manner, notify Buyer’s relevant employees/personnel and obtain all authorizations and consents that must be obtained in accordance with the applicable laws and regulations to process such personal information. Buyer agrees to ensure that Buyer’s relevant employees/personnel understand their rights and obtain their consent.

28.3 Buyer agrees that if Xirgo provides any personal information of its employees/personnel within the People’s Republic of China to Buyer in relation to or for the performance of these Terms, Buyer will process such personal information strictly in accordance with all applicable laws and regulations and only for achieving the purpose as notified or implied when Xirgo provides such personal information.

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Terms and Conditions (Equipment Financing)

The terms and conditions in any purchase order or sales order acknowledgement (each, an "Order") govern the transaction described. All prior terms and conditions in any other document other than an existing Master Sales and Services Agreement ("MSA") between a party ordering products or services (the "Customer") and Xirgo are expressly rejected. These terms and conditions take precedence over any conflicting terms in any other document except for any preexisting MSA between Customer and Xirgo. These terms may not be modified by Customer. Any attempt to alter any term or condition set forth here, including the inclusion of any other term or condition in any other document forming part of the transaction described in an Order is void.

Capitalized terms used have the meanings given to them below.

1. Definitions

"Activation Date" means the date the Subscription Term commences with respect to eligible Hardware and Services listed in the Order and is the earlier of (a) the date of Enrollment or (b) 60 days from shipment of Hardware to Customer.

"Default" means:

1. Customer failed to pay to Xirgo any amount when due and such failure is not cured within five (5) days of notice from Xirgo;
2. Customer failed to observe or perform any of its non-payment obligations under this Agreement and such failure is not cured within twenty (20) days of notice from Xirgo;
3. Customer or End User committed any act or omission that resulted in a lien or other encumbrance to be placed on any Hardware;
4. Customer
   1. ceased doing business as a going concern,
   2. made an assignment for the benefit of creditors,
   3. admitted in writing its inability to pay its debts as they became due,
   4. filed a voluntary petition in bankruptcy, was adjudicated bankrupt or insolvent, filed a petition for itself seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar arrangement or filed an answer admitting material allegations of a petition filed against it in any such proceeding,
   5. consented to or acquiesced in the appointment of a trustee, custodian, receiver or liquidator of itself or of all or any substantial part of its assets or properties, its shareholders took any action looking to its dissolution or liquidation, or an order for relief is entered under the United States Bankruptcy Code against Customer;
5. failed to obtain the dismissal of any proceedings against it seeking reorganization, arrangement, readjustment, liquidation, dissolution, or similar relief within thirty (30) days after the commencement of such proceedings;
6. entered into any transaction of merger or consolidation in which it is not the surviving entity, or sells, transfers, or otherwise disposes of all or substantially all of its assets without Xirgo's written consent, which may be withheld, conditioned, or delayed in Xirgo's sole discretion; or
7. made any representation or warranty in connection with this purchase order that is untrue or misleading in any material respect.

"End User" means an individual or entity authorized by Customer to use the End User Solution.

"End User Solution" means the Xirgo Hardware or Services solution supplied by Customer.

"Enrollment" means the activation of any of the Services associated with a specific piece of Hardware.

"Provisioning Wizard" means Xirgo software provided to Customer for the configuration and activation of Products and select Services through a self-service portal.

"Services" means Xirgo services selected by Customer during Enrollment.

"Subscription Term" means the duration of a subscription selected using the Provisioning Wizard.

2. Services

2.1 Service Delivery. Hardware and Services are provided to Customer pursuant to the terms and conditions set forth in the Order.

2.2 End User Use. Xirgo will provide the Products and Services to Customer and Customer will provide the Products and Services to End Users solely for End Users' internal business use for no more than the number of Subscriptions selected during Enrollment. Customer may not make, nor allow End Users to make any alterations, modifications, additions, subtractions, or improvements to the Products or Services without the prior written consent of Xirgo. Except with respect to any End User Solution authorized by Xirgo, additions and improvements of whatever kind and nature to the Service are the property of Xirgo. All such additions or improvements will be assigned to Xirgo upon their creation and are hereby assigned to Xirgo. Customer will ensure that End Users fully comply with these terms and conditions, including ensuring that End Users assign ownership rights in additions or improvements to Xirgo.

2.3 Term. The Subscription Term commences on the Activation Date and expires on the last day of the subscription for each of the Services. Unless a Party provides written notice of termination at least sixty (60) days prior to the expiration date of the Subscription Term or the Parties enter into a new agreement with respect to Products and Services, upon expiration, Xirgo will continue to provide Services on a month-to-month basis at its then-current prevailing rate for the Services until terminated in accordance with the terms and conditions of the Order. Neither Customer nor any End User may terminate for convenience and may not assign any of its rights or obligations to any third party without the prior written consent of Xirgo, which may be withheld in Xirgo's sole discretion.

2.4 Program Fees. Products and Services are provided at the subscription rates specified in the customer service order form provided by Xirgo to Customer.

2.5 Termination. Xirgo may, in its sole discretion, terminate its obligations under the Order without liability, if (i) Customer is in Default under any agreement with Xirgo; (ii) Xirgo determines that Customer's or End User's use of the Hardware or Services is a threat to the normal operation of, or otherwise compromises, the Xirgo network or any network used to provide the Services; (iii) Xirgo has reason to question the financial stability of Customer; or (iv) Xirgo believes that Customer, any of Customer's agents, any End Users, or any third party, is misusing or abusing the Hardware or Services, obtained the Hardware or Services fraudulently, or is using the Hardware or Services fraudulently.

3. Hardware

3.1 Hardware. Xirgo retains title to the Hardware until payment in full of all sums due (and if Customer is in Default, to become due) for the Subscription Term. All transactions under the Order are intended by the Parties to be a lease and not a security agreement subject to Article 9 of the Uniform Commercial Code, or other regionally applicable alternative. Nevertheless, to secure the payment of all sums due to Xirgo pursuant to the Order, as well as all other present and future indebtedness and obligations of Customer to Xirgo of every kind and nature whatsoever, Customer grants Xirgo a first priority security interest in the Products together with all substitutions, replacements, additions, improvements, accessions, repair parts, accumulations, and proceeds of the foregoing, superior to all others. Customer also grants Xirgo a first priority security interest in accounts receivables generated from contracts with End Users (the "Receivables"). Customer authorizes Xirgo, at Customer's expense, to cause the Order, or any statement or other instrument showing and/or continuing the interest of Xirgo in the Products and Receivables (including but not limited to UCC-1 Financing Statements), to be filed or recorded. Customer agrees to pay or reimburse Xirgo for its administrative costs and out-of-pocket expenses relating to any searches undertaken by Xirgo or any filings, records, stamp fees, or taxes arising from the filing or recording or any such instrument or statement. Customer will, at its expense, protect and defend Xirgo's title against all persons claiming against or through Customer or End Users and must at all times keep the Products free and clear from any legal process, liens, claims, or encumbrances whatsoever. Customer must give Xirgo immediate written notice of any legal process, lien, claim, or encumbrance that reasonably has the potential to affect Xirgo's title to or other rights in the Products or Receivables. Customer will indemnify and hold Xirgo harmless from and against any loss caused by such legal process, liens, claims, or encumbrances. Upon payment in full of all sums due (and if Customer is in Default, to become due) for the Subscription Term, Xirgo will convey all right, title and interest in and to the Products to Customer.

3.2 Installation of Products. Xirgo is not responsible for installing any Products. Customer is solely responsible for arranging for installation of Products by Xirgo authorized installers. Customer acknowledges that with respect to any Hardware installed by any party, including Customer, that is not authorized and certified by Xirgo, Customer is responsible for all costs of correcting any failures due to faulty installation, including, without limitation, payment for an authorized and certified installer and purchases of replacement Hardware, if needed, at full list price.

4. Maintenance and Support Services

Xirgo will, at no additional charge, provide remote maintenance and support services to Customer by telephone in accordance with the current Xirgo support schedule. Fees for support services outside of scheduled hours will be: (i) negotiated by the Parties, or (ii) at then-prevailing market rates established by Xirgo from time to time.

5. Default, Remedies, and Termination

5.1 Remedies for Default. Upon the occurrence of any Default, in addition to exercising any other rights Xirgo may have under the Agreement, at law, or in equity, Xirgo may do any or all of the following, with or without notice to Customer:

1. terminate the Agreement without prejudice to any of Xirgo's rights to damages, other rights, or recourse at law, in equity, or otherwise;
2. declare all sums for the remainder of the Subscription Term to be immediately due and payable;
3. exercise Step-In Rights; or
4. exercise any other right or remedy which may be available to it under the Uniform Commercial Code or applicable law, including without limitation, the right to recover damages.

Customer remains fully liable for all costs and expenses incurred by Xirgo to enforce its legal and contractual rights and remedies, including attorneys' fees, legal expenses, and court costs. All remedies of Xirgo are cumulative and nonexclusive, are in addition to any other remedies provided for by law, and may, to the extent permitted by law, be exercised concurrently or separately. The exercise of any one remedy is not an election of remedies, nor does that exercise preclude the exercise of any other remedy. No failure of Xirgo to exercise, and no delay in exercising, any right or remedy, is a waiver or modifies the terms of the Order. A waiver of default is not a waiver of any other or subsequent default.

5.2 Step-In Rights. If Customer is in Default, Xirgo has the right, but not the obligation, to assume some or all Customer rights with respect to an End User, up to and including the right to step into the shoes of Customer with respect to any agreement or document Customer has with an End User (the "Step-in Rights"). Step-in Rights include all rights to collect amounts due and to apply the net proceeds, after deduction of all expenses incurred by Xirgo in the exercise of Step-In Rights, to amounts due to Xirgo by Customer under this Agreement. Xirgo's exercise of Step-In Rights in no way relieves Customer from liability for any of its obligations under this Agreement or any other agreement between Customer and Xirgo. Customer will reasonably cooperate with Xirgo and End User to facilitate the exercise of the Step-In Rights.

5.3 Effect of Termination. Upon termination of this Agreement, Customer must promptly return to Xirgo all copies of software and accompanying updates and modifications stored on Customer or End User's hardware and backup media. Customer may not use any components comprising the Hardware or Services following any termination or expiration of the Agreement.

6. Fees, Payments and Accounting Matters

6.1 Billing. Xirgo will bill amounts due under each subscription to the billing address provided by Customer at the time of account setup. Charges will be at rates set forth on the Customer Service Order Form. All payments to Xirgo are due in the time frame stated on the invoice and must be paid in U.S. Dollars. Xirgo will commence charging monthly fees for each subscription upon the Activation Date. If applicable, the first partial month fees after commencement of the Subscription Term will be billed along with the next full month of fees; thereafter, each monthly fee will be billed in advance (next month's fee). Monthly subscription fees will be automatically charged to the Customer's authorized payment method or invoiced unless Customer notifies Xirgo in writing requesting change of payment method. Xirgo does not waive its right to collect the full amount due if Customer makes untimely payments or partial payments, even if Customer writes the words "Paid in Full" (or similar words) on any correspondence to Xirgo. All payments received will be credited to any outstanding late fees, subscription fees, and other amounts due under the Order at the sole discretion of Xirgo. In addition to all other remedies set forth in this Agreement, if balances remain unpaid after thirty (30) days, the Customer's Services will be subject to suspension or termination by Xirgo. Service will only be reinstated upon receipt of ALL past due payments plus advancement of 1 additional monthly payment. Customer will pay for all reasonable costs of collection, including attorneys' fees, incurred for any reason.

6.2 Credit Information. Customer's Enrollment and continued use of the Service is contingent on Xirgo's approval of credit terms for Customer. Xirgo may extend, change, or deny credit terms in its sole discretion. Xirgo may require Customer to update its credit information from time to time. Customer warrants and represents that all credit information furnished to Xirgo is current, complete, accurate, and true. Xirgo, in its sole discretion, may require a security deposit from Customer at any time during the Subscription Term as a condition to continued use of the Service.

6.3 Payment Obligations. Customer will pay fees at the rates set forth on the Customer Service Order Form. Xirgo may modify its pricing schedule from time to time and will notify Customer no less than 30 days in advance. Except as expressly set forth, the Order is irrevocable from and after the Effective Date and for the amounts reflected on the Customer Service Order Form or agreed to in connection with Customer's enrollment. No abatement, deduction, set off, or deferment by Customer in paying any fees or amounts due to Xirgo are allowed without Xirgo's prior written approval, which may be granted or withheld in Xirgo's sole discretion.

6.4 Late Fees. If any payment or other obligation due from Customer to Xirgo is not timely made, Customer will pay Xirgo a late charge on each such overdue payment or other obligation at a rate equal to the lesser of 5% of the amount due for each 30 day period the payment or obligation remains unpaid, or the maximum amount permitted by law.

6.5 Taxes. All local withholding, excise, sales, use and similar taxes, fees, surcharges, and other charges imposed by any governmental authority with respect to the transactions described in the Order are, as between Customer and Xirgo, the sole responsibility of Customer. Customer will pay, as invoiced by Xirgo, all taxes, fees, surcharges, and other charges imposed by any state, Federal, local, or foreign government arising out of or incurred in connection with transactions described in the Order unless Customer can provide documentation satisfactory to Xirgo that Customer is exempt from same. Xirgo is not required to provide advance notice of changes to taxes, fees, surcharges, or other charges, unless required by applicable law. Customer is responsible for and will timely pay all duties, tariffs, and shipping costs.

7. Service Warranty

7.1 No Warranty for Customer or End User Caused Issues. The warranties granted under or in accordance with any agreement are void if failure of the Hardware results from accident, abuse, incorrect installation, modification, or misapplication.

7.2 Remedy. Customer's exclusive remedy under the foregoing warranties concerning Hardware (and Xirgo's entire liability with respect thereto) is the repair or replacement of the defective Hardware as determined by Xirgo. Customer is responsible for all costs associated with de-installation and re-installation of Hardware.

7.3 No Other Warranties. XIRGO DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE HARDWARE (INCLUDING ALL UPDATES AND MODIFICATIONS) AND THEIR PERFORMANCE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES THAT XIRGO IS NOT LIABLE, AMONG OTHER THINGS, IF THE HARDWARE DOES NOT MEET THE REQUIREMENTS OF CUSTOMER, IF THE HARDWARE DOES NOT OPERATE FREE OF ERRORS, OR IF THE HARDWARE DO NOT FUNCTION IN CUSTOMER'S TECHNOLOGY ENVIRONMENT.

7.4 No Warranty for Taxes. Customer and Xirgo acknowledge that Xirgo is not responsible for the accuracy of any tax determination by Xirgo or the failure by Customer to properly remit any such taxes. Xirgo will, however, exercise commercially reasonable efforts to assist Customer in resolving any dispute with a governmental authority concerning such taxes. Customer indemnifies and holds Xirgo harmless from and against any liability, loss, cost, or expense, including attorneys' fees, from or relating to the transactions described in the Order, the Services or the Hardware, or resulting from any tax, penalty, interest, additions to tax, surcharge or other charge or expense payable or incurred by Customer.

8. Export

Customer agrees not to export or re-export, directly or indirectly, any item described in the Order or any other technical data acquired or any products utilizing such data to any location where such export or re-export would be prohibited by law or to any person listed on any prohibited persons list of any governing body with jurisdiction over Customer.

9. Governing Law; Jurisdiction and Venue

The Order is governed by and construed in accordance with the laws of the United States and the State of Illinois without reference to any law regarding conflicts of laws. The UN Convention on Contracts for the International Sale of Goods is expressly disclaimed and does not apply to the interpretation or enforcement of the Order. The duties and obligations of each Party under the Order are enforceable exclusively in the state and federal courts in and for Cook County in the State of Illinois. Each Party irrevocably consents to personal jurisdiction and venue in any of those courts and to service of process by or for those courts. Each Party waives all objections and defenses based on venue, including a defense of forum non conveniens.

10. Severability

If any provision of the Order or any portion or provision of the Order as applied to any particular situation or circumstance is held invalid, the remainder of the Order or the remainder of such provision (as the case may be), and its application to other situations or circumstances will not be affected.

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END USER LICENSE AGREEMENT

This End User License Agreement (this "Agreement") is a legally binding contractual agreement between you ("you") and Xirgo Holdings, Inc. as well as any of affiliates, if applicable. Xirgo Holdings, Inc., together with its affiliates through which it does business, are collectively referred to as "Xirgo". This Agreement governs your access to and use of all software, firmware, and other machine-readable instructions provided by Xirgo, including (a) all downloadable and non-downloadable software or firmware components, regardless of whether those components are used on a local processor or accessed over a network; (b) all cloud-based software applications and services; (c) all application programming interfaces ("APIs") offered by Xirgo; (d) all other components, technology, or software provided or required by Xirgo that allow you to access and use such applications and services or to access data or other information on your Device (as defined below); and (e) all related documentation. These components are collectively referred to as the "Application".

The Application is non-exclusively licensed to you on the limited basis of this Agreement. If you have a separate mutually executed and delivered written agreement with Xirgo that provides you with specific rights or obligations for your use of the Application, then terms and conditions in that written agreement will apply to the extent that any of those terms or conditions conflict with this Agreement.

BY (A) CLICKING ANY LINK OR BUTTON THAT INDICATES THAT YOU "ACKNOWLEDGE" OR "AGREE" TO THIS AGREEMENT; (B) ACCESSING, USING, DOWNLOADING OR INSTALLING THE APPLICATION; OR (C) USING THE APPLICATION; YOU ACKNOWLEDGE AND AGREE THAT (1) YOU HAVE READ AND UNDERSTAND THIS AGREEMENT IN ITS ENTIRETY, (2) YOU ACCEPT THIS AGREEMENT AND CONFIRM THAT YOU ARE LEGALLY BOUND BY ITS TERMS AND CONDITIONS; AND (3) IF YOU ARE USING THE APPLICATION AS AN EMPLOYEE OR AUTHORIZED AGENT OF ANOTHER PERSON OR ENTITY, THEN YOU HAVE THE AUTHORITY TO BIND, AND ARE HEREBY BINDING, THAT PERSON OR ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.

YOU SHOULD PRINT OR SAVE A COPY OF THIS AGREEMENT FOR FUTURE REFERENCE. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT AND CANNOT ACCESS, USE, DOWNLOAD, OR INSTALL THE APPLICATION OR ANY OF ITS COMPONENT PARTS AND MUST DELETE THE APPLICATION FROM YOUR DEVICE IN ITS ENTIRETY.

1. License Grant

Subject to the terms of this Agreement, Xirgo grants you a limited, non-exclusive, non-sublicensable, and nontransferable license to download, install, access, and use the Application from any mobile phone, tablet, computer, or similar device owned or otherwise controlled by you (collectively, the "Device") strictly in accordance with the Application's documentation and specifications as provided by Xirgo.

2. License Restrictions

You may not:

• copy the Application, except as expressly permitted by this Agreement;
• modify, translate, adapt, or otherwise create derivative works or improvements, whether or not copyrightable or patentable, of the Application;
• reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any component part of the Application, except as permitted by applicable law;
• remove, delete, alter, deface, cover, or obscure any trademarks or service marks, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application or its documentation, including any copy;
• rent, lease, lend, sell, pledge, hypothecate, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason;
• take any action that affects or impacts in any way the security, integrity, or functionality of the Application;
• permit unauthorized access to the Application;
• introduce any virus, malware, or harmful code into the Application;
• use the Application in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right, data protection or privacy right, or other right of any person;
• use the Application in any manner or for any purpose that violates any applicable law, rule, or regulation.

3. Ownership; Reservation of Rights

You acknowledge and agree that the Application is license to you and not sold. You do not acquire any ownership interest or any other rights in the Application under this Agreement, other than to use the Application in accordance with the license granted in this Agreement, and subject to all terms, conditions, and restrictions under this Agreement. As between you and Xirgo, you acknowledge and agree that Xirgo owns all right, title, and interest in and to the Application, including all copyrights, trademarks, patents, trade secrets, and other industrial, intellectual property, and proprietary rights in, to, or relating to the Application. Xirgo's rights extend to all modifications and enhancements to the Application, as well as to all derivative works created from the Application. You agree that you will not take any action, or permit any third party to take any action, that might impair or otherwise interfere with Xirgo's ownership rights in its intellectual property or the Application. Xirgo reserves all rights arising out of or in connection with the Application.

4. Collection and Use of Your Information

You acknowledge that when you access, use, download, or install the Application, Xirgo may use automatic means (including, for example, cookies and web beacons) to collect information about your Device and about your use of the Application. You also may be required to provide certain information about yourself as a condition of accessing, using, downloading, or installing the Application or certain of its features or functionality. Under applicable data protection legislation, Xirgo is required to provide you with certain information about Xirgo, how Xirgo processes your personal data or personally identifiable information and for what purposes, your rights in relation to your personal data or personally identifiable information, and how to exercise those rights. This information is provided in Xirgo's privacy notice at https://xirgo.ignitesolutions.com/privacy-policy/ (the "Privacy Notice"). It is important that you read this information. By accessing, using, downloading, installing, or providing information to or through the Application, you understand that Your Data, defined below, will be processed by Xirgo in accordance with the terms of the Privacy Notice.

5. Data License

You or the entity for which you accepted this Agreement will be providing or supplying information and data to Xirgo by or through your use of the Application ("Your Data"). You grant to Xirgo, for the benefit of its affiliates, subcontractors, agents, and designees a non-exclusive, transferable, sublicensable, worldwide, and royalty-free license to use, copy, modify, distribute, display, create derivative works of, and otherwise use Your Data to provide the Application and any administrative services related to the Application. You also grant to Xirgo a non-exclusive, transferable, sublicensable, worldwide, royalty-free, and irrevocable license to use, copy, modify, distribute, display, create derivative works of, and otherwise use Your Data for the purposes of (a) improving, monitoring, testing, troubleshooting, and optimizing performance and quality of Xirgo's products and services including the Application; and (b) developing new products and services, for all of which the intellectual property rights will be owned by Xirgo. Xirgo will not use your name in any such new products or services and will de-identify or anonymize personally identifiable information in the process of creation and in final versions of such new products or services.

6. Xirgo's Websites

The Application may provide you with access to Xirgo's websites (the "Website"). Your access to and use of the Website is governed by the terms of use and the privacy notice located at the Website, which are incorporated into this Agreement by this reference, and which are legally binding on you. Your access to and use of the Website may require you to acknowledge your acceptance of the Website terms of use and privacy notice or to register with the Website. Your failure to do so may restrict you from accessing or using certain of the Application's features and functions. Any violation by you of such terms of use is a violation of this Agreement.

7. Updates; Suspension of Service

Xirgo may from time to time in its sole discretion develop and provide Application updates, such as upgrades, bug fixes, patches, other error corrections, or new features (collectively, including related documentation, the "Updates"). Updates may also modify or delete in their entirety certain features and functionality. You agree, unless otherwise specified in a separate executed written contract between you and Xirgo, that Xirgo has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Device settings, when your Device is connected to the Internet either: (a) the Application will automatically download and install all available Updates or (b) you may receive notice of availability of Updates or be prompted to download and install available Updates. You will promptly download and install all Updates. You acknowledge and agree that the Application or portions of the Application may not operate properly if you fail to do so. All Updates are deemed part of the Application and subject to all terms and conditions of this Agreement. Xirgo reserves the right to suspend your use of the Application, in its discretion, to modify, enhance, protect, or maintain the integrity or security of the Application. Xirgo also has the right to immediately suspend or terminate your use of the Application for any breach of this Agreement.

8. Third-Party Materials

The Application may display, include, or make available third-party content and services, including but not limited to data, information, software, and other products, services, and/or materials, including but not limited to those that are owned and controlled by third party providers and re-sold by Xirgo ("Third-Party Materials"). You acknowledge and agree that Xirgo is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect. Xirgo does not assume and has no liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links to such materials are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to any separate terms and conditions applicable to such Third-Party Materials.

9. Term and Termination

The term of this Agreement commences upon the download of any component of the Application and continues in effect until terminated by you or Xirgo. If you or the person or entity responsible for paying any fees that permit you to use the Application (a "Subscriber") either (a) fails to make any payments when due for the Application or (b) breaches this Agreement, Xirgo may immediately terminate this Agreement. You or the Subscriber may also terminate this Agreement pursuant to any applicable subscription terms and conditions offered by Xirgo. Xirgo reserves the right to stop offering the Application to you or the applicable Subscriber, and in such case this Agreement is terminated. Upon termination of this Agreement, you or the applicable Subscriber to the Application remain responsible to pay Xirgo for any unpaid fees. Upon termination, all rights granted to you under this Agreement will also terminate and you must cease all use of the Application and delete all copies of the Application from your Device and account. Termination does not limit any of Xirgo's rights or remedies at law or in equity.

10. Disclaimer of Warranties

THE APPLICATION IS PROVIDED TO YOU "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, XIRGO, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, XIRGO PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, BE SECURE, BE FREE OF MALWARE OR HARMFUL CODE, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

11. Limitation of Liability

(A) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AND SUBJECT TO SECTION 11(B) BELOW, IN NO EVENT WILL XIRGO OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE WEBSITE FOR: (1) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OR CORRUPTION OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHATSOEVER; AND (2) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU OR THE SUBSCRIBER FOR THE APPLICATION IN THE TWELVE MONTHS PRIOR TO YOUR CLAIM. THE FOREGOING LIMITATIONS APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR UNDER ANY OTHER THEORY OF LIABILITY WHATSOEVER AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR XIRGO WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

(B) SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OR EXCLUSIONS OF LIABILITY, AND IN SUCH CASE, SOME OR ALL OF THE ABOVE LIMITATIONS OR EXCLUSIONS OF LIABILITY MAY NOT APPLY TO YOU.

(C) THIS SECTION 11 IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE AGREEMENT BETWEEN COMPANY AND YOU. XIRGO WOULD NOT BE ABLE TO PROVIDE THE APPLICATION ON AN ECONOMIC BASIS WITHOUT SUCH LIMITATIONS. THESE PROVISIONS INURE TO THE BENEFIT OF COMPANY AND ITS LICENSORS, SUPPLIERS, SERVICE PROVIDERS AND AFFILIATES.

12. Indemnification

You agree to indemnify, defend, and hold harmless Xirgo and its affiliates and their respective officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of any kind, including reasonable attorneys' fees, arising from or relating to your (a) use or misuse of the Application, (b) breach of this Agreement, or (c) violation of any applicable law, rule or regulation.

13. Confidential Information

You may not at any time, directly or indirectly, use or disclose or furnish to any other person or entity, any Confidential Information (as defined below) of Xirgo. Notwithstanding the foregoing, if specifically required by a court of competent jurisdiction, governmental agency, or administrative body having proper jurisdiction or authority, you may disclose such Confidential Information, but you must first provide written notice to Xirgo prior to such disclosure and provide Xirgo with reasonable time to challenge any order compelling such disclosure. For purposes of this Agreement, “Confidential Information” means any and all non-public information about Xirgo, including but not limited to information relating to its finances, pricing, purchasing activity, business and marketing plans, product development, customer and supplier lists and information, and technology, software, data and other non-public, proprietary and confidential information. If you breach this Agreement by disclosing Confidential Information, such information shall remain subject to this Section. You acknowledge and agree that the covenants contained in this Section are reasonable and necessary for the protection of Xirgo and its business and that your breach hereof would irreparably injure Xirgo and that there is no adequate remedy at law for any such breach. Accordingly, in addition to pursuing any other remedies it may have in law or in equity, Xirgo may obtain injunctive relief in any court, foreign or domestic, having the capacity to grant such relief, to restrain any such breach of this Section by you, and to enforce the provisions of this Section. To the extent permitted by law, you agree that Xirgo is entitled to injunctive relief from a court of competent jurisdiction to protect its Confidential Information and that Xirgo is not required to post bond as a condition of obtaining injunctive relief.

14. Product Warning

DISTRACTION MAY CAUSE ACCIDENTS. DO NOT USE THE APPLICATION OR ITS DOCUMENTATION WHILE OPERATING MACHINERY, EQUIPMENT OR VEHICLES, WHILE PERFORMING ANY DANGEROUS ACTIVITY, OR WHILE PERFORMING ANY ACTIVITY THAT REASONABLY REQUIRES YOU TO BE FREE FROM DISTRACTION.

15. Limitations of Technology; Not for Emergency Use

The Application is based on cellular, wireless, Internet, or other telecommunications technology that may become unreliable or unavailable at times, or that may become obsolete in the future, as a result of changes in such technology or actions by telecommunication service providers, regulators, or third parties, including, but not limited to, with respect to cellular technology in mapping applications. In such event, Xirgo has no obligation to issue a refund or furnish a replacement Application. Further, Xirgo has no liability for any event or consequence that arises from a lack of network connectivity, including any incapacity of the Application that results from concentrations of usage in certain locations. With respect to wireless technology applicable to the Application, Xirgo is not obligated to update or maintain any particular technology if a wireless or other telecommunications provider changes, reduces or terminates such technology network. You acknowledge that the geographic network coverage of cellular or other wireless service providers is subject to change and Xirgo shall have no liability to you for any adverse changes to any such wireless network or other telecommunications coverage. The Application is not designed for emergency use or communication. Xirgo has no liability whatsoever if you or any user uses or attempts to use the Application in any emergency. CELLULAR AND/OR WIRELESS COMMUNICATION PLANS AND THE PRODUCTS AND SERVICES OFFERED THEREUNDER (“DATA PLANS”) ARE MANAGED, OWNED AND/OR CONTROLLED BY THIRD PARTIES (INDIVIDUALLY AND COLLECTIVELY, “NETWORKS”) AND NOT BY XIRGO, BUT MAY BE OFFERED OR RE-SOLD BY XIRGO. XIRGO DISCLAIMS ANY AND ALL RESPONSIBILITY FOR SUCH DATA PLANS. YOU IRREVOCABLY WAIVE ANY AND ALL CLAIMS AGAINST XIRGO THAT ARISE OUT OF OR THAT ARE IN CONNECTION WITH THE DATA PLANS AND/OR THE ACTIONS OR OMISSIONS OF THE NETWORKS. WITH RESPECT TO ANY DATA PLANS, XIRGO MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT COMMUNICATIONS OR OTHER TRANSMISSIONS WILL BE ABLE TO BE ACCESSED, ROUTED, OR COMPLETED WITHOUT ERROR OR INTERRUPTION. XIRGO MAKES NO GUARANTEE REGARDING THE SECURITY OR ENCRYPTION EMPLOYED BY ANY NETWORK OR THE INTEGRITY OF ANY DATA THAT IS SENT, BACKED UP, STORED, OR SUBJECT TO LOAD BALANCING BY ANY NETWORK. XIRGO MAKES NO GUARANTEE THAT NETWORK SECURITY PROCEDURES WILL PREVENT THE LOSS OR ALTERATION OF OR IMPROPER ACCESS TO YOUR DATA AND INFORMATION.

16. Safeguarding

You will safeguard the Application (including all copies of the Application) from infringement, misappropriation, theft, misuse, or unauthorized access. You may not, and will not attempt to, remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection or security features of the Application.

17. Feedback

You grant Xirgo a non-exclusive, royalty-free, worldwide, irrevocable, sublicensable, transferable license to use, copy, modify, otherwise exploit, distribute, display, or create derivative works of and incorporate into the Application and any other products or services any suggestions, enhancement requests, recommendations or other feedback you provide to Xirgo about the Application and its other products or services.

18. Compliance with Law; Export Regulation

You must comply with all applicable laws, rules and regulations in connection with your access to and use of the Application. The Application may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. You will not, directly or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any person, entity, jurisdiction, or country to which export, re-export, or release is prohibited by law, rule, or regulation. You must comply with all applicable laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Application available outside the US.

19. Insurance

During the term of this Agreement, you agree to maintain at all times all necessary, reasonable and customary insurance, with coverages consistent with prevalent standards in the industry, to cover any liability you may incur under this Agreement.

20. Independent Contractors

This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between you and Xirgo. You and Xirgo are independent contractors. Neither party has any authority to act on behalf of, or to bind the other to any obligation.

21. Severability

If any provision of this Agreement is determined to be illegal or unenforceable under applicable law, that provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.

22. Governing Law

This Agreement all related documents including all exhibits attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Illinois and the United States of America, without giving effect to any conflict of laws provisions that would require or permit the application of the laws of any jurisdiction other than those of the State of Illinois and the United States of America.

23. Limitation on Type of Claims; Limitation of Time to File Claims

YOU AGREE TO NOTIFY XIRGO IN WRITING (A “CLAIM NOTICE”) OF ANY CLAIM OR CAUSE OF ACTION AGAINST XIRGO (“CLAIM”) AT LEAST 30 DAYS PRIOR TO FILING ANY PLEADING OR NOTICE OF SUCH CLAIM WITH ANY COURT, TRIBUNAL, OFFICE OR ADMINISTRATIVE BODY OF ANY KIND, CHARACTER OR NATURE (“COURT”). YOUR CLAIM NOTICE SHOULD BE SENT TO XIRGO HOLDINGS, INC, 1016 Lunt Avenue, Schaumburg, IL 60193, ATTENTION: GENERALCOUNSEL/LEGAL DEPARTMENT BY HAND OR RECOGNIZED OVERNIGHT COURIER WITH PROOF OF DELIVERY. YOU MUST ATTEMPT IN GOOD FAITH TO SETTLE YOUR CLAIM WITHIN 30 DAYS FOLLOWING THE DELIVERY OF YOUR CLAIM NOTICE (“CLAIM PERIOD”). XIRGO HAS THE ABSOLUTE RIGHT IN ITS DISCRETION TO CAUSE SUCH CLAIM TO BE EXCLUSIVELY AND FINALLY RESOLVED BY BINDING ARBITRATION BY A RECOGNIZED PRIVATE ENTITY IN ACCORDANCE WITH THE RULES AND REGULATIONS OF SUCH ENTITY, INSTEAD OF BEING HEARD BY A COURT, REGARDLESS OF WHETHER YOU FILE YOUR CLAIM PRIOR TO XIRGO’S EXERCISE OF ITS RIGHT TO ARBITRATE. IF YOU HAVE FILED YOUR CLAIM IN COURT PRIOR TO XIRGO’S EXERCISE OF ITS RIGHT TO ARBITRATE, YOU AGREE TO DISMISS SUCH CLAIM AND REMOVE IT FROM THE COURT IF XIRGO DEMANDS SUCH ARBITRATION. IF XIRGO DOES NOT INVOKE ITS RIGHT TO ARBITRATE, ANY CLAIM WILL BE DETERMINED BY A JUDGE AND NOT BY A JURY. YOU IRREVOCABLY WAIVE YOUR RIGHT TO A JURY TRIAL. YOU IRREVOCABLY WAIVE YOUR RIGHT TO BRING ANY CLAIM AS PART OF A GROUP, COLLECTION, OR CLASS OF PLAINTIFFS OR COMPLAINANTS, SUCH AS ANY ACTION OR PROCEEDING IN WHICH YOU ARE NOT THE SOLE PLAINTIFF OR COMPLAINANT. ANY CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CLAIM ACCRUES, OTHERWISE SUCH CLAIM IS PERMANENTLY BARRED.

24. Waiver

No failure to exercise, and no delay in exercising, on the part of either party, any right or any power under this Agreement is a waiver. No single or partial exercise of any right or power under this Agreement precludes further exercise of that or any other right under this Agreement.

25. Force Majeure

Xirgo is not responsible for any failure of performance due to an event beyond its reasonable control, including accidents, severe weather events, acts of God, actions of any government agency, pandemic, acts of terrorism, acts of war, or the stability or availability of the Internet or portions thereof.

26. Changes to Agreement

Xirgo reserves the right to make changes to this Agreement from time to time in its sole discretion. Changes are effective immediately when posted.

27. Entire Agreement

Unless you have a separate executed written agreement with Xirgo, this Agreement and the Privacy Notice constitute the entire agreement between you and Xirgo with respect to the Application and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Application.

28. Survival

The following provisions survive any expiration or termination of this Agreement: (a) Sections 10, 11, 12 and 13; (b) all licenses granted by you to Xirgo under this Agreement; (c) all provisions that are applicable to the making and resolution of claims under this Agreement; (d) all provisions related to the protection and preservation of Xirgo’s intellectual property rights; and (e) those definitions and provisions which must reasonably and logically survive in order to effectuate the intent of this Agreement.

29. Assignment and Subcontracting

Your rights and obligations under this Agreement may not be assigned or otherwise transferred by you by contract, operation of law, or otherwise without Xirgo’s prior written consent, which may be withheld in Xirgo’s sole discretion. Xirgo has the right to assign or transfer this Agreement or its rights and obligations under this Agreement in its sole discretion. Xirgo has the right to use affiliates, subcontractors, or other designees to exercise its rights or perform its obligations under this Agreement. The rights and obligations of the parties to this Agreement shall inure to the benefit of each party’s successors and assigns that may be permitted under this Section. Any attempt to assign or otherwise transfer this Agreement or any right or obligation under this Agreement that is not in compliance with this section is null and void.