Xos, Inc. DIGITAL SERVICES TERMS OF USE
Last revised: August 2023
These terms and conditions of use (“Terms of Use”) govern your use of our online interfaces and digital properties (e.g., websites and mobile applications) owned and controlled by XOS, Inc. and/or its wholly owned subsidiaries (collectively, “XOS”), including, without limitation, (1) our website and its subdomains, (2) vehicles designed, developed, manufactured and/or sold by XOS (“XOS Vehicles”) and products, which includes, without limitation, any automobile, truck, van, or any other moving vehicle designed and/or sold by XOS; and any product, whether or not designed and/or sold by XOS, which includes the XOS telematics platform, charging infrastructure hardware and software, any XOS App, or any other XOS product or accessory, and (3) XOS software and telematics applications (our “App”) (collectively, “Digital Services”). Your compliance with these Terms of Use is a condition to your use of the Digital Services. If you do not agree to be bound by the Terms of Use, promptly exit the Digital Services. Please also consult our Privacy Policy for a description of our privacy practices and policies.
Binding Arbitration. These Terms of Use provide that all disputes between you and XOS that in any way relate to these Terms of Use or your use of the Digital Services will be resolved by BINDING ARBITRATION. ACCORDINGLY, YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT (INCLUDING IN A CLASS ACTION PROCEEDING) to assert or defend your rights under these Terms of Use (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury and your claims cannot be brought as a class action. Please review the Section below entitled Dispute Resolution; Arbitration Agreement or the details regarding your agreement to arbitrate any disputes with XOS.
1. Ownership of the Digital Services
All Content (as defined herein), Digital Services, and any material made available for download are the property of XOS, or its licensors or suppliers, as applicable. The Digital Services are protected by United States and international copyright and trademark laws. The contents of the Digital Services, including without limitation all data, files, documents, pages, features, text, photographs, images, audio, and video, and any materials accessed through or made available for use or download through these Digital Services (“Content”) may not be copied, distributed, modified, reproduced, published or used, in whole or in part, except for purposes authorized by these Terms of Use or otherwise approved in writing by XOS. You may not frame or utilize framing techniques to enclose, or deep link to, any name, trademarks, service marks, logo, Content or other proprietary information (including images, text, page layout, or form) of XOS without our express written consent. XOS may use Content for any purpose related to: (i) performing its obligations under any agreement with you, including any warranties; (ii) improving XOS’s products and services generally (including by performing analyses on such information); and (iii) to aggregate with other data.
2. Access to Digital Services, Security and Restrictions; Passwords
You are prohibited from violating or attempting to violate the security of the Digital Services, including, without limitation, (a) accessing data not intended for such user or logging onto a server or an account which the user is not authorized to access; or (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; or (c) accessing or using the Digital Services or any portion thereof without authorization, in violation of these Terms of Use or in violation of applicable law.
You may not use any scraper, crawler, spider, robot or other automated means of any kind to access or copy data on the Digital Services, deep-link to any feature or content on the Digital Services, bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Digital Services.
Violations of system or network security may result in civil or criminal liability. XOS will investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations. You agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of these Digital Services or any activity being conducted on these Digital Services.
In the event access to the Digital Services or a portion thereof is limited requiring a user ID and password (“Protected Areas”), you agree to access Protected Areas using only your user ID and password as provided to you by XOS. You agree to protect the confidentiality of your user ID and password, and not to share or disclose your user ID or password to any third party. You agree that you are fully responsible for all activity occurring under your user ID. Your access to the Digital Services may be revoked by XOS at any time with or without cause. You agree to defend, indemnify and hold XOS harmless from and against all third-party claims, damages and expenses (including reasonable attorneys’ fees) against or incurred by XOS arising out of your breach of these Terms of Use or violation of applicable law, your use or access of the Digital Services, or access by anyone accessing the Digital Services using your user ID and password.
3. License to use our Digital Services
XOS grants to you a nontransferable license to use our Digital Services on devices that you own or control. XOS reserves all rights in and to the App not expressly granted to you under this Agreement. The terms of this Agreement will govern any content, materials, or services accessible from or purchased within the App as well as upgrades provided by XOS that replace or supplement the original App, unless such upgrade is accompanied by a new or revised Agreement. You may not copy (except as permitted by this license), reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the our Digital Services, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the Digital Services).
4. Limitations on License
The license to use our Digital Services are restricted as follows:
Limitations on Copying and Distribution. You may not copy or distribute our Digital Services.
Limitations on Reverse Engineering and Modification; APIs. You may not reverse engineer, decompile, disassemble, modify or create works derivative of the Digital Services, except to the extent expressly permitted by applicable law.
Transferring Your XOS Vehicle to a Third Party. In the event that you sell, lease, rent, or any other assigning of your rights to use or own an XOS Vehicle, you must either (i) ensure that the Third Party agrees to these Terms of Use in a legally binding manner; or (ii) notify XOS in writing of the transfer of legal rights.
Proprietary Notices. You may not remove any proprietary notices (e.g., copyright and trademark notices) from the Digital Services or their documentation.
Use in Accordance with Documentation. All use of the Digital Services must be in accordance with its then current documentation, if any, provided with the XOS Vehicle, the applicable XOS product, or made available on XOS’s website.
Compliance with Applicable Law. You are solely responsible for ensuring your use of the Digital Servers are in compliance with all applicable foreign, federal, state and local laws, and rules and regulations, including but not limited to, traffic laws and violations.
Online Services Associated with the Digital Services.
The Digital Services may be used to access certain online services. In some cases, you will not receive a separate notice when the Digital Services connect to those services. Using the Digital Services constitutes your consent to the transmission of standard device information (including, but not limited to, technical information about your device, system, XOS Vehicle information, and application software) to those services. Your use of those services may be governed by additional terms and conditions. Using the online services will constitute your acceptance of and agreement to be bound by those additional terms and conditions, if any. You may not use any online services in any way that could harm those services, disrupt their operation, or impair any other user’s use of those services or the wireless network through which they are accessed. You may not use the online services to gain unauthorized access to or use of any service, data, account, or network by any means.
5. Location-Enabled Features
Certain location-enabled functionality made available in XOS Vehicles or in XOS products is provided by Google Inc., Apple Inc., and other third-party providers. Your use of that functionality may be subject to additional terms and conditions (as updated from time-to-time): http://www.google.com/intl/en-US_US/help/terms_maps.html and https://www.apple.com/legal/internet-services/maps/terms-en.html. You must exercise your own judgment as to the adequacy and appropriateness of the information. All location-based information is provided entirely “as-is,” without warranties, express or implied, of any kind.
6. Vehicle Support; Functionality
All questions and requests relating to XOS Vehicle or XOS product support must be directed to XOS. We may change or remove functionality and other features of XOS Vehicles and XOS products at any time, without notice.
7. Modified Devices and Operating Systems
XOS will have no liability for errors, unreliable operation, or other issues resulting from use of any XOS Vehicle or XOS product on or in connection any XOS Vehicle or XOS product that is not in conformance with the XOS’ original specifications, including use of modified versions of the operating system, batteries, or any other unapproved modification that could be made to an XOS Vehicle or XOS product (collectively, “Modified Devices”). Use of an XOS Vehicle with Modified Devices will be at your sole and exclusive risk and liability.
8. Accuracy and Integrity of Information
Although XOS attempts to ensure the integrity and accuracy of the Digital Services, it makes no representations, warranties or guarantees whatsoever as to the correctness or accuracy of the Digital Services and Content thereon. It is possible that the Digital Services could include typographical errors, inaccuracies or other errors, and that unauthorized additions, deletions and alterations could be made to the Digital Services by third parties. In the event that an inaccuracy arises, please promptly inform XOS in writing so that it can be corrected. XOS reserves the right to unilaterally correct any inaccuracies on the Digital Services without notice. Information contained on the Digital Services may be changed or updated without notice. Additionally, XOS shall have no responsibility or liability for information or Content posted to the Digital Services from any non-XOS affiliated third party.
9. Typographical Errors
In the event a product or service is listed at an incorrect price due to typographical error or error in pricing information received from our suppliers, we shall have the right to refuse or cancel any orders placed for product / service listed at the incorrect price. We shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit or debit card charged. If your credit or debit card has already been charged for the purchase and your order is canceled, we shall promptly issue a credit to your credit or debit card account in the amount of the incorrect price.
10. Export Policy and Restrictions
You acknowledge that the products which are sold or licensed on the Digital Services, which may include technology and software, are subject to the customs and export control laws and regulations of the United States of America and may also be subject to the customs and export laws and regulations of the country in which the products are manufactured and/or received. By purchasing, downloading or using technology or software from the Digital Services, you agree to abide by the applicable laws, rules and regulations – including, but not limited to the Export Administration Act and the Arms Export Control Act – and you represent and warrant that you will not transfer, by electronic transmission or otherwise, the software or technology to a foreign national or a foreign destination in violation of the law. By purchasing any products, you agree that you will not use any products, or provide products to any person, who is forbidden from receiving the product under the Export Administration Regulations or any economic sanctions maintained by the U.S. Department of Treasury. U.S. antiboycott regulations, or U.S. economic sanctions, including the export and antiboycott restrictions found in the Export Administration Regulations or the sanctions regulations administered by the U.S. Office of Foreign Assets Control. You shall indemnify and hold harmless XOS from all claims, demands, damages, costs, fines, penalties, attorneys’ fees and all other expenses arising from your failure to comply with this provision and/or applicable export control, antiboycott, or economic sanctions laws and regulations.
11. Links to Other Sites
XOS makes no representations whatsoever about any other website that you may access through these Digital Services. When you access a non-XOS website, please understand that it is independent from XOS, and that XOS has no control over the content on that website. In addition, a link to a non-XOS website does not mean that XOS endorses or accepts any responsibility for the content, or the use, of the linked website. It is up to you to take precautions to ensure that whatever you select for your use or download is free of such items as viruses, worms, Trojan horses, and other items of a destructive nature. If you decide to access any of the third party websites linked to these Digital Services, you do this entirely at your own risk.
12. Disclaimer of Warranties
XOS DOES NOT WARRANT THAT ACCESS TO OR USE OF THE DIGITAL SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE DIGITAL SERVICES WILL BE CORRECTED. THESE DIGITAL SERVICES, INCLUDING ANY CONTENT OR INFORMATION CONTAINED WITHIN IT OR ANY SERVICE RELATED TO THE DIGITAL SERVICES, IS PROVIDED “AS IS,” WITH ALL FAULTS, WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY OF INFORMATION, QUIET ENJOYMENT, AND TITLE/NON-INFRINGEMENT. XOS DOES NOT WARRANT THE ACCURACY, COMPLETENESS OR TIMELINESS OF THE INFORMATION OBTAINED THROUGH THE DIGITAL SERVICES.
YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THESE DIGITAL SERVICES, DIGITAL SERVICES-RELATED SERVICES, AND LINKED WEBSITES. XOS DOES NOT WARRANT THAT FILES AVAILABLE FOR DOWNLOAD WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER DESTRUCTIVE PROGRAMMING. YOU ARE RESPONSIBLE FOR IMPLEMENTING PROCEDURES SUFFICIENT TO SATISFY YOUR NEEDS FOR DATA BACK UP AND SECURITY.
WARRANTIES RELATING TO PRODUCTS OR SERVICES OFFERED, SOLD AND DISTRIBUTED BY XOS ARE SUBJECT TO SEPARATE WARRANTY TERMS AND CONDITIONS, IF ANY, PROVIDED WITH OR IN CONNECTION WITH THE APPLICABLE PRODUCTS OR SERVICES.
13. Limitation of Liability Regarding Use of Digital Services
XOS AND ANY THIRD PARTIES MENTIONED ON THESE DIGITAL SERVICES ARE NEITHER RESPONSIBLE NOR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATING IN ANY WAY TO THE DIGITAL SERVICES, DIGITAL SERVICES-RELATED SERVICES, CONTENT OR INFORMATION CONTAINED WITHIN THE DIGITAL SERVICES, AND/OR ANY LINKED WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE DIGITAL SERVICES, DIGITAL SERVICES-RELATED SERVICES, AND/OR LINKED WEBSITES IS TO STOP USING THE DIGITAL SERVICES AND/OR THOSE SERVICES. TO THE EXTENT ANY ASPECTS OF THE FOREGOING LIMITATIONS OF LIABILITY ARE NOT ENFORCEABLE, THE MAXIMUM AGGREGATE LIABILITY OF XOS TO YOU WITH RESPECT TO YOUR USE OF THESE DIGITAL SERVICES IS $500 (FIVE HUNDRED DOLLARS).
14. No Liability of App Store and Other Third Parties
Your wireless carrier, the manufacturer and retailer of your mobile device, the developer of the operating system for your mobile device, the operator of any application store, marketplace, or similar service through which you obtain the App, and their respective affiliates, suppliers, and licensors (each a “Third Party” and collectively, “Third Parties”) are not parties to this Agreement and they do not own and are not responsible for the App. Company, and not any Third Parties, is responsible for addressing any claims raised by you or any third party regarding the App or your use or possession thereof, including claims related to product liability, legal or regulatory requirements, and consumer protection or similar legislation. You are responsible for complying with all application store and other applicable Third Party terms and conditions. YOU AGREE (I) THE THIRD PARTIES DISCLAIM ALL WARRANTIES, EXPRESS AND IMPLIED, WITH RESPECT TO THE APP, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND FITNESS FOR A PARTICULAR PURPOSE; (II) IN NO EVENT WILL THE THIRD PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) ARISING OUT OF THIS AGREEMENT OR THE APP, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES; (III) IN ANY EVENT, THE MAXIMUM LIABILITY OF ANY THIRD PARTY FOR ALL CLAIMS (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) OF EVERY KIND WILL IN NOT EXCEED FIVE HUNDRED DOLLARS ($500.00); AND (IV) YOU WAIVE ANY AND ALL CLAIMS, NOW KNOWN OR LATER DISCOVERED, THAT YOU MAY HAVE AGAINST THE THIRD PARTIES ARISING OUT OF THE APP AND THIS AGREEMENT. THE THIRD PARTIES ARE INTENDED THIRD PARTY BENEFICIARIES OF THIS AGREEMENT, CAPABLE OF DIRECTLY ENFORCING ITS TERMS. NOTHING CONTAINED IN THIS AGREEMENT WILL BE CONSTRUED AS MODIFYING OR AMENDING ANY AGREEMENTS OR OTHER TERMS BETWEEN YOU AND THE THIRD PARTIES WITH REGARD TO THEIR SUBJECT MATTER. In the event of any claim that the App or your possession and use of the App infringes a third party’s intellectual property rights, the Third Parties are not responsible for the investigation, defense, settlement, or discharge of the infringement claim.
15. External Services
The App may enable access to XOS’s and/or third-party services and websites, including social media sites (collectively and individually, “External Services“). You agree to use the External Services at your sole risk. XOS is not responsible for examining or evaluating the content or accuracy of any third-party External Services, and shall not be liable for any such third-party External Services. Data displayed by the App or External Service, including but not limited to financial, medical and location information, is for general informational purposes only and is not guaranteed by XOS or its agents. You will not use the External Services in any manner that is inconsistent with the terms of this Agreement or that infringes the intellectual property rights of XOS or any third party. You agree not to use the External Services to harass, abuse, stalk, threaten or defame any person or entity, and that XOS is not responsible for any such use. External Services may not be available in all languages or in your Home Country, and may not be appropriate or available for use in any particular location. To the extent you choose to use such External Services, you are solely responsible for compliance with any applicable laws. XOS reserves the right to change, suspend, remove, disable or impose access restrictions or limits on any External Services at any time without notice or liability to you.
16. Forward Looking Statements
The Digital Services may include forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 about securities of an issuer which are located on the Digital Services. To the extent that statements on these Digital Services do not relate to historical or current facts, they constitute forward-looking statements. The words “outlook,” “believes,” “expects,” “potential,” “continues,” “may,” “will,” “could,” “should,” “seeks,” “approximately,” “predicts,” “intends,” “plans,” “estimates,” “anticipates” and similar expressions are intended to identify forward-looking statements. These forward-looking statements are based on the current assumptions and beliefs of the applicable issuer in light of the information currently available to it, and involve known and unknown risks, uncertainties and other factors. Such risks, uncertainties and other factors may cause actual results, performance, achievements or financial position to be materially different from any future results, performance, achievements or financial position expressed or implied by these forward-looking statements. XOS undertakes no obligation to review or publicly update any forward-looking statements to reflect subsequently occurring events or circumstances or to reflect unanticipated events or developments.
17. Dispute Resolution; Arbitration Agreement
We will try work in good faith to resolve any issue you have with the Digital Services, including products and services ordered or purchased through the Digital Services, if you bring that issue to the attention of our customer service department. However, we realize that there may be rare cases where we may not be able to resolve an issue to a customer’s satisfaction.
You and XOS agree that any dispute, claim or controversy arising out of or relating in any way to these Terms of Use or your use of the Digital Services, including products and services ordered or purchased through the Digital Services, shall be determined by binding arbitration instead of in courts of general jurisdiction. Arbitration is more informal than bringing a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and is subject to very limited review by courts. Arbitration allows for more limited discovery than in court, however, we agree to cooperate with each other to agree to reasonable discovery in light of the issues involved and amount of the claim. Arbitrators can award the same damages and relief that a court can award, but in so doing, the arbitrator shall apply substantive law regarding damages as if the matter had been brought in court, including without limitation, the law on punitive damages as applied by the United States Supreme Court. You agree that, by agreeing to these Terms of Use, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and XOS are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms of Use and any other contractual relationship between you and XOS.
If you desire to assert a claim against XOS, and you therefore elect to seek arbitration, you must first send to XOS, by certified mail, a written notice of your claim (“Notice“). The Notice to XOS should be addressed to: ATTN: Legal Department, 3550 Tyburn Street, Los Angeles, CA 90065 (“Notice Address“). If XOS desires to assert a claim against you and therefore elects to seek arbitration, it will send, by certified mail, a written Notice to the most recent address we have on file or otherwise in our records for you. A Notice, whether sent by you or by XOS, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand“). If XOS and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or XOS may commence an arbitration proceeding or file a claim in small claims court. During the arbitration, the amount of any settlement offer made by XOS or you shall not be disclosed to the arbitrator. You may download or copy a form Notice and a form to initiate arbitration from the American Arbitration Association at www.adr.org. If you are required to pay a filing fee, after XOS receives notice at the Notice Address that you have commenced arbitration, it will promptly reimburse you for your payment of the filing fee, unless your claim is for more than US $10,000. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules“) of the American Arbitration Association (“AAA“), as modified by these Terms of Use, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by requesting them from us by writing to us at the Notice Address. The arbitrator is bound by the terms of these Terms of Use. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of these Terms of Use, including this arbitration agreement. Unless XOS and you agree otherwise, any arbitration hearings will take place in the county (or parish) of your billing address. (If you reside outside of the United States, any arbitration hearings will take place in your country of residence at a location reasonably convenient to you, but will remain subject to the AAA Rules including the AAA rules regarding the selection of an arbitrator). If your claim is for US $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds US $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. If the arbitrator issues you an award that is greater than the value of XOS’s last written settlement offer made before an arbitrator was selected (or if XOS did not make a settlement offer before an arbitrator was selected), then XOS will pay you the amount of the award or US $1,000, whichever is greater. Except as expressly set forth herein, the payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. Each party shall pay for its own costs and attorneys’ fees, if any. However, if any party prevails on a statutory claim that affords the prevailing party attorneys’ fees, or if there is a written agreement providing for payment or recovery attorneys’ fees, the arbitrator may award reasonable fees to the prevailing party, under the standards for fee shifting provided by law.
YOU AND XOS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and XOS agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.
If this Agreement to Arbitrate provision is found to be unenforceable, then (a) the entirety of this arbitration provision shall be null and void, but the remaining provisions of these Terms of Use shall remain in full force and effect; and (b) exclusive jurisdiction and venue for any claims will be in state or federal courts located in and for Los Angeles, California.
18. Revisions; General
XOS reserves the right, in its sole discretion, to terminate your access to all or part of these Digital Services, with or without cause, and with or without notice. In the event that any of the Terms of Use are held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that these Terms of Use shall otherwise remain in full force and effect. These Terms of Use constitute the entire agreement between XOS and you pertaining to the subject matter hereof. In its sole discretion, XOS may from time-to-time revise these Terms of Use by updating this posting. You should, therefore, periodically visit this page to review the current Terms of Use, so you are aware of any such revisions to which you are bound. Your continued use of the Digital Services after revisions to these Terms of Use shall constitute your agreement to the revised Terms of Use. Certain provisions of these Terms of Use may be superseded by expressly designated legal notices or terms located on particular pages within these Digital Services.