Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is not material and would likely cause competitive harm to the registrant if publicly disclosed. DEVELOPMENT AND SUPPLY AGREEMENT
Exhibit 99.2
[***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is not material and would likely cause competitive harm to the registrant if publicly disclosed.
DEVELOPMENT AND SUPPLY AGREEMENT
THIS DEVELOPMENT AND SUPPLY AGREEMENT (this “Agreement”) is made and entered into as of the Effective Date, by and between XXXXXXX BUS CORPORATION, a Kansas corporation, having its principal place of business at 000 Xxxx 0xx Xxxxxx, Xxxxx Xxxxxxxxxx, Xxxxxx 00000 (“XXXXXXX”), and LIGHTNING eMotors, Inc., a Delaware corporation, having its principal place of business at 000 00xx Xxxxxx XX, Xxxxx X000, Xxxxxxxx, Xxxxxxxx 00000 (“LEM”). The terms “Parties” and “Party” as used in this Agreement shall refer to XXXXXXX and LEM collectively and individually, as applicable.
RECITALS
WHEREAS, XXXXXXX is a manufacturer of commercial bus vehicles and related equipment (“XXXXXXX Technology”);
WHEREAS, LEM has developed electric drivetrain equipment, battery systems, and related software and firmware including telematics and analytics software (“LEM Technology”);
WHEREAS, the Parties wish to participate in a project to develop one or more electric commercial bus vehicles (“Products”), which will be derived from or incorporating both the XXXXXXX Technology and the LEM Technology (including, without limitation, the LEM Components), upon the terms and conditions provided herein;
WHEREAS, the Parties desire to allocate development responsibility, intellectual property ownership and certain licensing rights to the technology developed pursuant to the joint development project;
WHEREAS, if the development project is successful, the Parties also desire to set forth the agreed terms of a supply arrangement the LEM Technology to Xxxxxxx for the purpose of manufacture, marketing, sale and servicing of the Products; and
WHEREAS, each Party will undertake expense and time in connection with undertakings described in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises, and of the mutual promises and covenants hereinafter set forth, and for other good and valuable consideration, the receipt, adequacy, and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
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[***]
[***]
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LEM shall have no obligation under this Section 8 with respect to any claim to the extent it is based on (a) Section 8(b) if as a result of XXXXXXX’ unique specifications that LEM does not otherwise integrate into its deliverables for other customers as a standard customer offering (including, without limitation, any portion of a product which is based on XXXXXXx’ specifications), (b) XXXXXXx’ misuse of the LEM Component in conflict with express warnings provided in LEM’s documentation, (c) use of the LEM Components other than its inherent use, (d) Section 8(b) if as a result of a combination of LEM Components with one or more third party products, without which such combination no intellectual property infringement would have occurred, (e) XXXXXXX’ failure to use materials or instructions expressly provided by LEM in writing which would have avoided the claim, and (f) XXXXXXX’ negligence or breach of this Agreement.
LEM shall pay all costs and damages incurred by XXXXXXX if XXXXXXX promptly (i) notifies LEM of the claim, (ii) gives LEM a copy of the communication establishing the claim, and (iii) gives LEM such authority, information and assistance reasonably necessary and within XXXXXXX’x reasonable ability to defend or settle the proceeding; provided, however, that the foregoing requirements shall not limit XXXXXXX claim except to the extent XXXXXXX failure results in actual prejudice LEM.
Limitation of Liability. EXCEPT FOR SECTION 8 SET OUT HEREIN OR CLAIMS BY THIRD PARTIES FOR PERSONAL INJURY BASED ON RECKLESSNESS AND INTENTIONAL MISCONDUCT, THE TOTAL LIABILITY OF EITHER PARTY FOR ALL CLAIMS, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND PRODUCT LIABILITY), OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THE MANUFACTURE, SALE, DELIVERY, RESALE, REPAIR, REPLACEMENT, OR USE OF ANY ITEM OF THE PRODUCTS SHALL NOT EXCEED THE FEES PAID OR PAYABLE TO LEM HEREUNDER. EXCEPT FOR SECTION 8 SET OUT HEREIN, IN NO EVENT SHALL LEM OR ITS SUPPLIERS BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR SPECIAL DAMAGES, INCLUDING (WITHOUT LIMITATION) DAMAGES FOR LOSS OF REVENUE, LOSS OF PROFITS, COST OF CAPITAL, CLAIMS OF CUSTOMERS OR FAILURE OF SUPPLY, AND COSTS AND EXPENSES INCURRED IN CONNECTION WITH ROADSIDE ASSISTANCE, LABOR, OVERHEAD, TRANSPORTATION, INSTALLATION, OR REMOVAL OF PRODUCTS OR SUBSTITUTE FACILITIES OR SUPPLY SOURCES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
Notwithstanding anything herein to the contrary, the maximum damages that LEM shall be responsible to XXXXXXX for hereunder shall be limited to [***].
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If to XXXXXXX:415 Xxxx 0xx Xxxxxx
Xxxxx Xxxxxxxxxx, Xxxxxx 00000
Attn:
E-Mail:
If to LEM:815 00xx Xxxxxx XX, Xxxxx X000
Xxxxxxxx Xxxxxxxx 00000
Attn:
E-Mail:
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[Signature Page Follows]
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
XXXXXXX BUS CORPORATION LIGHTNING eMOTORS, INC.
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxx Xxxxx Name: Xxxxxxx Xxxxxx
Title: President Title: CEO
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