PURCHASE TERMS AND CONDITIONS
These Purchase Terms and Conditions (the “Agreement”) control any written order (a “Purchase Order”) issued by VinFast Auto, LLC or VinFast USA Distribution, LLC (either, “VinFast”) to a vendor (the “Vendor”) for the purchase of goods (the “Goods”) or services (the “Services”). VinFast and Vendor may individually be referred to in this Agreement as a “Party” and collectively as the “Parties”.
• Purchase Orders. Each Purchase Order will include a description of the Goods and Services, the applicable fees, pricing, and quantities, and any applicable specifications, acceptance criteria, delivery schedule, or other pertinent information related to the Goods and Services. VinFast will not be responsible for payment, return shipment, and/or disposition of any goods or services delivered without a corresponding Purchase Order.
• Goods and Services.
• Applicable Law and Work Rules. Vendor must comply with all applicable local, state, and federal laws and regulations (“Applicable Law”) in the delivery of Goods and performance of Services, including but not limited to the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”) and any other applicable anti-bribery or anti-corruption rules or regulations, and all applicable financial recordkeeping and reporting requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act) and the AML Act of 2020. While performing Services at VinFast’s facilities, all Vendor personnel shall observe and follow VinFast’s work rules, security policies and standards.
• Delivery. Vendor shall deliver the Goods and/or Services to the location indicated on the Purchase Order (the “Facility”) within the delivery timeframe indicated on the Purchase Order. Time is of the essence on all delivery obligations. If a shipping term is not otherwise specified on the Purchase Order, the Goods are sold CIP (Incoterms 2022) the Facility. Title to the Goods shall pass to VinFast upon delivery of the Goods to VinFast. Risk of loss shall pass to VinFast upon VinFast’s acceptance of the Goods at the Facility.
• Review and Inspection. Except to the extent a longer review period is agreed in a Purchase Order, VinFast will have ten (10) business days from receipt of Goods and Services (the “Review Period”) to review and inspect the Goods and Services to determine whether they conform with the Agreement and any specifications or acceptance criteria in the corresponding Purchase Order. In the event Vendor’s provision of Goods or Services is delayed because VinFast fails to complete its review and inspection within the Review Period, Vendor shall be granted an extension of time to provide the impacted Goods or Services, not to exceed the length of VinFast’s delay. The foregoing extension of time shall be the only remedy of Vendor in the event VinFast fails to complete the review and inspection within the Review Period.
• Non-Conforming Goods or Services. If VinFast informs Vendor of non-acceptance of the Goods or Services, Vendor shall remedy any defect or non-conformity within the reasonable time frame required by VinFast. Upon re-delivery of remedied Goods or Services, the Review Period shall commence again. Such remedy and review shall repeat until the Goods or Services are accepted by VinFast, on which date the Goods or Services will be considered completely delivered. The correction or reworking of the Goods or Services and all related activities shall be at the cost of Vendor if the failure is due to reasons not attributable to VinFast. Except as set forth in Sections 2.3 and 2.4, nothing herein shall relieve the Vendor from its obligation to provide Goods or Services within the time periods prescribed in the applicable Purchase Order.
• Liquidated Damages. Except as set forth in Section 2.3 and 2.4, in the event that the Goods or Services are not delivered within the timeline indicated on the Purchase Order, VinFast’s damages will be liquidated (and deducted from the purchase price) in the amount of 1% of the purchase price per week of delay. Once the liquidated damages reach or exceeds 8% of the purchase price, VinFast may unilaterally terminate the affected Purchase Order, and all payment obligations owed to Vendor by VinFast thereunder shall immediately cease. The liquidated damages contemplated in this section are a genuine pre-estimate of damages that VinFast would incur as a result of Vendor’s untimely delivery and are not a penalty. In addition to the foregoing, Vendor shall be responsible for all relevant losses and damages incurred by VinFast due to delayed delivery other than consequential damages, unless such consequential damages are a result of Vendor’s gross negligence or willful misconduct.
• Fees, Invoicing and Payment.
• Fees. The fees payable by VinFast (the “Fees”) shall be as outlined under the applicable Purchase Order. Unless otherwise stated on the Purchase Order all Fees shall be in US dollars and all Fees for Services shall be on a fixed price basis. The Fees excludes any applicable sales or use tax for which VinFast shall be responsible but include any other taxes and all fees, shipping costs, duties, deposits, tariffs and other costs and charges (including without limitation any costs and fees that may be imposed by government authorities outside the U.S.) for which Vendor shall be responsible.
• Expenses. VinFast shall pay or reimburse Vendor for out-of-pocket travel and living expenses reasonably incurred by Vendor in performing the Services provided that such expenses have been estimated by Vendor and approved by VinFast in advance. Vendor shall comply with the following guidelines: (i) when possible, travel reservations should be made as soon as Vendor is made aware of the business needs for travel to take advantage of lower airfares, and in all instances approval for airfares must be obtained from VinFast at least fourteen (14) calendar days prior to travel (unless otherwise requested or approved in writing by VinFast); (ii) only Economy/Economy Plus flights will be considered for reimbursement; (iii) hotels should be booked based upon vicinity, quality and price (i.e., a single room with private bath in moderately priced business class hotel (4-star or less)); and (iv) reimbursement for meals should be reasonable. Reimbursements will not be made without VinFast first receiving accurate itemized receipts for the applicable expenses.
• Invoicing and Payment. Except as otherwise specified in the Purchase Order, (i) Vendor shall submit invoices to VinFast for payment upon shipment of the Goods or delivery of the Services; and (ii) payment terms shall be net 45 days from VinFast’s final acceptance of the Goods or Services or receipt of undisputed invoice, whichever is later. Payment of any invoice shall not be deemed a waiver of VinFast’s right to reject, cancel or revoke acceptance of any Goods and/or Services performed.
• Pricing. Vendor warrants that the prices specified in any Purchase Order are as low as any net prices given by Vendor to any other customer for goods or services of like grade and quality in like quantities.
• Overdue Payments and Disputed Amounts. Vendor shall promptly notify VinFast in writing of any overdue payments. Within thirty (30) business days from receipt of such notice (the “Cure Period”), VinFast will pay any undisputed amounts and notify Vendor of any amounts that are subject to a good faith dispute. Payment of undisputed fees within the Cure Period shall be deemed paid on time. In the event of a good faith dispute, Vendor may withhold all disputed sums until the Parties resolve the dispute, and such withholding shall not be deemed to constitute a breach of this Agreement.
• Set-Off. If VinFast has a claim against Vendor or Vendor owes VinFast for any damages, rebates and/or credits, VinFast may deduct or set off such amounts from amounts due to Vendor by VinFast.
• Taxes.
• Responsibility. Each Party shall bear all taxes, customs duties and other charges arising in connection with the performance of the Agreement that are imposed on such Party in accordance with Applicable Law, save for any withholding tax imposed by any tax authority under Applicable Law which shall be borne by Vendor and deducted from the Fees. Vendor shall be responsible for all taxes imposed on Vendor’s income or property.
• Contested Tax. If VinFast disagrees with Vendor’s determination that any applicable sales, use, ad valorem or similar taxes (each, a “Tax” and collectively, “Taxes”) is due with respect to the Services, VinFast shall have the right to seek an administrative determination from the applicable taxing authority, or, alternatively, VinFast shall have the right to contest any asserted claim for such Taxes, subject to its agreement to indemnify Vendor for the entire amount of such contested Tax (including any associated interest and/or late penalties) should such Tax be deemed applicable. Vendor agrees to reasonably cooperate with VinFast in the event VinFast contests any such Taxes.
• Additional Tax Liability. Vendor shall promptly inform VinFast in writing of any assertion by a taxing authority of additional tax liability under the Agreement. The Parties shall provide mutual assistance in completing and preparing any necessary application, certification or documentation required for obtaining a reduced rate or deduction or withholding should a relevant double taxation treaty be applicable.
• Warranties. All warranties related to the Goods include third party goods or equipment included with the Goods or otherwise provided by Vendor. Vendor warrants and represents the following:
• Goods. The Goods will: (1) meet or exceed the specifications in the applicable Purchase Order; (2) be new and transferred free and clear of any liens or encumbrances; (3) be free from defects in materials and workmanship for a period of twenty-four (24) months (the “Goods Warranty Period”) commencing two weeks after VinFast’s final acceptance; (4) be manufactured, assembled, installed, commissioned and performed in accordance with prevailing industry standards; and (5) be fungible, merchantable and fit for the intended purpose of this Agreement. In the event the Goods cannot be fully utilized by VinFast for a period of time during the Goods Warranty Period due to the Goods’ non-conformance with the warranty, the Goods Warranty Period shall be extended by that same period of time. In the event VinFast becomes aware of a latent defect after the end of the Goods Warranty Period, but the defect arose during the term of the Goods Warranty, Vendor shall acknowledge, accept and honor such warranty claim.
• Personnel. The persons assigned by Vendor to perform the Services shall have appropriate technical and professional skills and experience to enable them to perform their duties in a professional and workmanlike manner, consistent with generally accepted industry standards for the performance of such Services.
• Performance. Vendor shall perform the Services in accordance with the standards of care and diligence ordinarily exercised by a skilled provider in performing services of a similar nature.
• Virus and Disabling Code. Vendor shall use industry standard anti-virus software and devices to screen all software deliverables prior to delivery to VinFast to prevent any viruses, worms or other computer codes that have the effect of disabling or interrupting the operating of a computer system or destroying, erasing or otherwise harming any data, software or hardware.
• Non-Infringement. The Goods and Services do not and shall not infringe the intellectual property rights of any third party. If the use of any Goods or Services is limited or prohibited as a result of or in connection with any claims or allegations, whether rightful or otherwise, that any Goods or Services infringe any third party´s intellectual property rights, Vendor shall, at Vinfast’s election: (i) modify the Goods or Services so that they no longer infringe any third party rights; (ii) procure, at Vendor’s sole costs, the right for VinFast to continue to use the Goods or Services; (iii) replace the Goods or Services by such equivalent goods or services that are not infringing and meet the contractual requirements of VinFast and which are at least similar in function and value compared to the Goods or Services initially rendered; and/or (iv) cancel the applicable Purchaser Order and refund VinFast for all of the amounts paid.
• Fair Labor Practices. Vendor, Vendor’s representatives and/or any person acting on behalf thereof shall not use slave or trafficked labor in the manufacturing or production process of the Goods or Services. All labor used in the manufacturing or production process shall comply with Applicable Laws. Slave or trafficked labor includes, but is not limited to forced labor, bonded labor, involuntary servitude and child labor.
• Anti-Discrimination. In the hiring of any employee for the manufacture of supplies, performance of work, or any other activity required with respect to the Agreement, Goods, or Services, Vendor and Vendor’s representatives and/or any person acting on behalf thereof shall not, by reason of gender, sexual orientation, age, race, religion, or color, discriminate against any person who is qualified and available to perform the work to which the employment relates. Furthermore, neither Vendor, Vendor’s representatives and/or any person acting on behalf thereof shall in any manner discriminate against or intimidate any employee involved in the manufacture of supplies, the performance of work, or any other activity required with respect to the Agreement, the Goods or Services on account of gender, race, creed or color. Vendor and its agents shall establish and maintain a written sexual harassment policy and shall inform their employees of the policy. The policy shall contain a notice that sexual harassment will not be tolerated and employees who practice it will be disciplined.
• Survival. Vendor’s warranties shall survive delivery and acceptance by VinFast and shall not be deemed waived by reason of VinFast’s payment for the Goods or Services. No attempt by Vendor to disclaim, exclude, or modify any warranties shall be of any force or effect.
6. Independent Contractor. Vendor acknowledges that Vendor’s services are being provided as an independent contractor, and that nothing in this Agreement or any Purchase Order shall create an employer-employee relationship, agent, representative, partnership or joint venture relationship between Vendor and VinFast. Vendor shall be the employer of its own employees and will continue to pay all wages and benefits pursuant to its wages and benefits policies and in accordance with Applicable Law. Vendor shall have no claim against VinFast for worker’s compensation insurance, unemployment insurance or compensation, vacation time, vacation pay, sick leave, retirement benefits, profit sharing, health or life insurance, social security benefits, disability insurance benefits or any other employee benefit of any kind or nature whatsoever. VinFast will not withhold from compensation payments (including Service Fee) any amounts for federal income tax, social security, or similar purposes.
7. Intellectual Property.
7.1 Background IP Rights. “Background IP Rights” of a Party means any and all intellectual property rights which are created, developed or obtained by such Party outside the performance of the Services. Neither Party shall acquire any claims to or rights in the Background IP Rights of the other Party. Notwithstanding the foregoing, if any of Vendor’s Background IP Rights are incorporated into the Goods or Services, Vendor hereby grants VinFast a non-exclusive, perpetual, irrevocable, non-transferable, royalty-free license to Use (as defined below) the Goods, Services, and Vendor’s Background IP Rights incorporated therein for VinFast’s sole purpose.
7.2 New IP Rights and Goods Ownership. “New IP Rights” means all intellectual property rights created or developed when performing the Services. The Goods and all New IP Rights upon creation shall become the property exclusively and solely owned by VinFast. Vendor shall provide VinFast with all support and documents necessary to have New IP Rights registered in any territory VinFast requests, including signing any document and consenting to any measure necessary in order to achieve such registration for the benefit of VinFast.
7.3 Use License. If, according to Applicable Law, the ownership of any New IP Right cannot be vested or assigned to VinFast, Vendor shall grant to VinFast an exclusive, perpetual, irrevocable, transferable, assignable and unrestricted, royalty-free license to in any forms use, exploit, reproduce, copy, decompile, display, publish, practice, make derivative works from, duplicate, modify, perform and otherwise dispose of (“Use”), such New IP Right. Vendor shall not be entitled to, and hereby fully waives its right (including moral rights, if any) to, Use any New IP Right for any purpose without prior written consent of VinFast.
7.4 Improvements. VinFast shall have the unrestricted right to make any improvements on the New IP Rights and shall become the sole and exclusive owner of any such improvements. If Vendor intends to use such newly developed intellectual property, it shall obtain a separate license from VinFast and negotiate with VinFast regarding the applicable royalties.
8. Third Party Components. Vendor shall specify in the Purchase Order any third-party software, tools, products or materials required for performing the Services or for being incorporated into or provided in connection with the Goods. Vendor shall be responsible for obtaining appropriate licenses for such third-party components and for paying any applicable license fees.
9. Indemnification. Vendor agrees to protect, defend, indemnify and hold VinFast and each of its respective past, current and future directors, officers, members, employees and agents (“Indemnified Parties”) harmless against any allegation, lawsuit, claim, regulatory action, loss, liabilities, costs, expenses, damages and reasonable attorneys’ fees (“Claims”) to the extent that such Claims arise out of or relate to: (1) any actual or alleged breach by Vendor of its obligations under this Agreement or any Purchase Order; (2) any violation of law; (3) any Goods or Services rendered by Vendor; or (4) any infringement claim or allegation incurred by the Indemnified Parties related to the Goods or Services.
10. Force Majeure.
10.1 Force Majeure Event. “Force Majeure Event” refers to an event which is beyond a Party’s reasonable control and not occasioned by such Party’s fault or negligence, including (but not limited to) acts of God or public enemy, war, civil war, warlike operations, terrorism, insurrections or riots, fires, floods, explosions, epidemic or quarantine restrictions, any act of government, governmental priorities or allocation order.
10.2 Delayed Performance. Neither Party shall be responsible nor deemed to be in default on account of delays or interruptions in the performance of its obligations under a Purchase Order to the extent affected by a Force Majeure Event.
10.3 Notification. Within ten (10) days of the first occurrence of a Force Majeure Event the Party whose performance is affected by the Force Majeure Event (the “Affected Party”) must notify the other Party of the full particulars of such event, including its date of first occurrence, the cause, the nature and extent of the event’s impact on the Affected Party’s performance, and damages suffered by such Party. A statement by a Chamber of Commerce in the country where the Affected Party is based, confirming the accuracy of the particulars contained in such notification, or other satisfactory and suitable evidence shall be attached thereto. Without the notification as stated above, the events and causes claimed by the Affected Party as Force Majeure Event shall not be accepted by the other Party.
10.4 Continuation of Performance. Problems arising out of Force Majeure Event shall adequately be settled by negotiations so that the performance of the Purchase Order may reasonably continue. Should, however, the delays due to Force Majeure Event continue longer than thirty (30) days and the Parties fail to reach an agreement through negotiation, either Party shall be entitled to terminate the impacted Purchase Order.
11. Term and Termination.
11.1 Term. The term of this Agreement shall commence upon Vendor’s acceptance of any Purchase Order from VinFast and continue for one (1) year from Vendor’s completion of performance under all Purchase Orders.
11.2 Termination for Convenience. VinFast may terminate this Agreement or a Purchase Order at any time by giving a thirty (30) days prior written notice to Vendor. In such case, VinFast shall pay Vendor for Goods or Services already performed in accordance with the Agreement and for any conforming work-in-progress at the time of termination. If VinFast cancels a Purchase Order for Goods prior to delivery, no fees of any nature (including but not limited to cancellation, restocking, or otherwise) shall apply.
11.3 Termination for Cause.
11.3.1 Right to Terminate. Either Party may terminate the Agreement or a Purchase Order immediately upon written notice if the other Party (i) defaults on any of its material obligations, representations or warranties under the Agreement or the Purchase Order and fails to cure such default within thirty (30) days of written notice of such default; or (ii) either (a) files a petition for bankruptcy or is adjudicated bankrupt, (b) has a petition in bankruptcy filed against it, (c) becomes insolvent or makes an assignment to the benefit of its creditors or an arrangement for its creditors pursuant to any bankruptcy law, or (d) discontinues business.
11.3.2 Rejection of Goods or Services. If a Purchase Order is terminated by VinFast in accordance with this Section, VinFast shall be entitled to reject the entire or part of the Goods or Services to the extent that VinFast cannot exploit such part or the whole Goods or Services. In such cases, VinFast shall pay for the delivered parts of Goods or Services which are not rejected, and Vendor shall return any pre-payments corresponding to the rejected Goods or Services.
11.3.3 Payment for Conforming Goods and Services. If the Purchase Order is terminated by Vendor in accordance with this Section, VinFast shall pay Vendor for Goods and Services already performed in accordance with the Agreement and for any conforming work-in-progress at the time of termination.
11.4 Effect of Termination. Termination of the Agreement terminates all Purchase Orders under the Agreement. Termination of one or more Purchase Orders shall have no effect on any other Purchase Orders or this Agreement. Termination by VinFast for breach of Vendor’s performance obligations shall relieve VinFast of all payment obligations related to such performance. In the event of VinFast’s termination for convenience VinFast shall pay for all conforming Goods and Services subject to the termination up to the date of termination.
12. Confidentiality.
12.1 Confidential Information. Vendor acknowledges that it may, in the course of performing under a Purchase Order, be exposed to or acquire information which is proprietary to or confidential to VinFast or its clients or to third parties to whom VinFast owes a duty of confidentiality. The term “Confidential Information” shall mean any and all proprietary, confidential or non-public information in any form. Confidential Information also includes information about VinFast, its present or former partners, managing directors, directors, officers, employees, agents or clients, its or their business and financial affairs, personnel matters, operating procedures, organization responsibilities, marketing matters and policies or procedures.
12.2 Non-Disclosure Obligation. Vendor shall hold the Confidential Information in strict confidence and shall not copy, reproduce, sell, assign, license, market, transfer publicize, dispose of, give, disclose, or allow disclosure of such information to third parties or use such information for any purposes other than the performance under the Purchase Order. Vendor shall advise each of Vendor’s employees and agents (and their employees) who may be exposed to the Confidential Information of their obligations to keep such information confidential.
12.3 Compelled Disclosure. If Vendor is requested to disclose all or any part of any Confidential Information under a subpoena or by an inquiry issued by a court of competent jurisdiction or by a judicial or administrative agency or legislative body or committee (an “Order”), Vendor shall (unless the Order prohibits such action) (i) immediately notify VinFast of the existence, terms and circumstances surrounding such Order) and (ii) consult with VinFast on the advisability of taking legally available steps to resist or narrow the Order and cooperate with VinFast on any steps it considers advisable. If disclosure of the Confidential Information is required or deemed advisable, Vendor shall exercise its best efforts to obtain an order, stipulation or other reliable assurance acceptable to VinFast that confidential treatment shall be accorded to such portion of the Confidential Information to be disclosed. VinFast shall reimburse Vendor for reasonable legal fees and expenses actually incurred in Vendor’s effort to comply with this provision.
12.4 Exclusions. Confidential Information shall not include information that is (i) in or becomes part of the public domain other than by disclosure by Vendor in violation of this Agreement; (ii) demonstrably known to Vendor previously, without a duty of confidentiality; (iii) independently developed by Vendor outside of this Agreement; or (iv) rightfully obtained by Vendor from third parties without a duty of confidentiality.
12.5 Exceptions to Exclusions. The exclusions described in Section 15.4 shall not apply to any information that would otherwise be considered (i) “Nonpublic Personal Information” (as that term is defined under Section 6809(4) of the Gramm-Leach-Bliley Act, and its applicable implementing regulations) or (ii) Confidential Information that is or relates to personally-identifiable financial information provided by individual consumers or customers to VinFast and any list, description or other grouping of consumers or customers that is derived using any such information (all such information, “Nonpublic Personal Information”). Any Nonpublic Personal Information shall remain confidential in all circumstances.
12.6 Security Procedures. Vendor shall implement and maintain administrative, technical and physical safeguards (the “Security Procedures”) to: (i) ensure the security and confidentiality of Confidential Information and of Nonpublic Personal Information; (ii) protect against any anticipated threats or hazards to the security or integrity of Confidential Information and Nonpublic Personal Information; (iii) protect against unauthorized access to or use of Confidential Information and Nonpublic Personal Information that could result in harm or inconvenience to VinFast, its employees, customers or consumers; and (iv) in the performance of Services, to the extent applicable to the Services, detect relevant identity theft “red flags”.
12.7 Warranty. Vendor warrants and covenants that its Security Procedures will, at all times during the term of this Agreement, (i) comply with Applicable Law, (ii) meet or exceed the information security standards and practices that are commonly utilized by the leading service providers in Vendor’s industry that have access to Confidential Information or Nonpublic Personal Information, and (iii) in no event offer less protection than that which the Vendor affords to its own confidential information and materials of like nature.
12.8 Breach. It is understood and agreed that in the event of a breach by Vendor or its employees or agents (or their employees) of this Section 12, damages may not be an adequate remedy and VinFast shall be entitled to injunctive relief to restrain any such breach, threatened or actual.
12.9 Survival of Confidentiality Obligations. This Section 12 (Confidentiality) shall survive and continue to bind both Parties after the termination of the Agreement
13. Limitation of Liability. In no event shall VinFast be liable for any punitive, exemplary, special, incidental, indirect or consequential damages of any kind (including, but not limited to loss of profits, loss of reputation and/or loss of current or prospective business advantage, even where such losses are characterized as direct damages) arising out of or in any way related to the relationship and/or dealings between VinFast and Vendor, regardless of whether the claim under which damages are sought is based upon contract, tort, negligence, strict liability or otherwise, and regardless of whether VinFast has been advised of the possibility of such damages at the time of contracting or otherwise. Under no circumstances (whether in tort, contract, negligence, strict liability or otherwise) shall VinFast’s liability exceed the amounts paid to Vendor by VinFast for the Goods or Services related to the claim.
14. Anti-Bribery Commitment
14.1 Anti-Bribery. Vendor commits and ensures that its managers, employees, agents, or any person working on behalf of Vendor (“Vendor’s Personnel”) shall not, whether directly, indirectly, or through any third party, contact, deal or work, give to any VinFast managers, employees, agents, or any person working on behalf of VinFast (“VinFast’s Personnel”) any bribe, promise to give bribes, gifts, rewards or any assets in cash or in kind or benefit, and/or incentive related to obtaining or performing under any Purchase Order, and/or any other unfair benefits (“Bribery”). Acts of Bribery include acts of Bribery performed before, during and after the implementation of the relevant Purchase Order. Vendor shall immediately notify VinFast at if Vendor or Vendor Personnel detect VinFast Personnel participating in Bribery as follows: (i) by phone: Vietnam +84 24 4458 2193; US/Canada 1 (800) 390-5685; France 0 805 98 78 46; Germany 8001801532 Netherlands 0800 0226859; or (ii) via website: https://www.thornhill.co.za/kpmgfaircallreport/questionnaire/main.
14.2 Remedies. If Vendor violates this Section 14 (Anti-Bribery Commitment), VinFast may at any time apply one or all of the following measures: (i) cancel or terminate any awards won by Vendor; (ii) disallow Vendor’s participation in other bidding packages; (iii) cancel or terminate all VinFast approvals, consents, permissions, or acceptances, and all interests obtained by Vendor related to the purchase Order(s) affected by the Bribery (each, an “Affected Purchase Order”); (iv) require Vendor to indemnify VinFast for any damages resulting from termination of an Affected Purchase Order; (iv) require Vendor to return to VinFast any advanced/prepaid amounts under an Affected Purchase Order; (v) require Vendor to bear the penalties stipulated in the Agreement or the Affected Purchase Order in the event of breach by Vendor; and/or (vi) transfer such bribery case to competent authorities to investigate breaches of criminal law.
14.3 Indemnification. Vendor shall indemnify VinFast from all losses related to any act of Bribery of Vendor and shall compensate VinFast for damages incurred, including administrative expenses, attorney fees and other costs.
15. Governing Law and Dispute Settlement
15.1 Choice of Law. This Agreement and all Purchase Orders shall be construed, interpreted and governed by the substantive laws of the State of California other than those relating to conflicts of laws. THE PARTIES VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE ARISING OUT OF THIS AGREEMENT, ANY CONTRACT, PURCHASE ORDER OR IN ANY WAY RELATED TO THE GOODS OR SERVICES. THIS PROVISION IS A MATERIAL INDUCEMENT FOR BOTH PARTIES TO ENTER INTO THE AGREEMENT.
15.2 Dispute Resolution. Any dispute, controversy or claim arising between the Parties (the “Dispute”), including, without limitation, the formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-contractual claims, shall, if possible, be finally settled amicably by negotiation between senior executives of the Parties (“Internal Dispute Resolution”).
15.3 Mediation. If the Parties are unable to reach an amicable solution to the Dispute pursuant to the Internal Dispute Resolution process within ten (10) Business Days from the first notice of Dispute, then the Dispute shall be submitted first to mediation, in Los Angeles, California, under the auspices of the American Arbitration Association (“AAA”), in accordance with the AAA’s Commercial Mediation Rules then in effect. All negotiations are confidential and are deemed compromise and settlement negotiations for the purposes of applicable rules of evidence. Each Party shall bear its own cost of mediation and shall share mediation costs equally.
15.4 Arbitration. In the event the Parties are unable to resolve any dispute by Internal Dispute Resolution or mediation within sixty (60) days after the notice of Dispute, the Parties shall submit the Dispute to binding arbitration before a single arbitrator agreeable to both Parties, or if the Parties cannot agree, then an arbitrator shall be appointed by the AAA. All proceedings will be conducted at a suitable location chosen by the arbitrator in Los Angeles in the State of California. Judgment upon the arbitrator’s award shall be final and binding and may be entered in any court of competent jurisdiction. The arbitration proceeding and all allegations and matters discussed therein shall remain strictly confidential. The arbitration proceeding shall be conducted in English. Each Party further agrees that in any arbitration proceeding each must submit or file any claim which would constitute a compulsory counterclaim (as defined by Rule 13 of the Federal Rules of Civil Procedure) within the same proceeding as the claim to which it relates. Any claim which is not submitted or filed as required is forever barred. Despite the Parties’ agreement to arbitrate, each Party has the right in a proper case to seek temporary restraining orders and temporary or preliminary injunctive relief from a court of competent jurisdiction; provided, however, that each such Party must contemporaneously submit its dispute for arbitration on the merits as provided in this Section.
15.5 Injunctive Relief. Nothing in this Agreement shall prevent either Party from seeking injunctive relief against threatened conduct that will cause it loss or damages. Such relief may be sought without posting a bond and under the usual equity rules, including the applicable rules for obtaining restraining orders and preliminary and permanent injunctions. If injunctive relief is granted, the enjoined Party’s only remedy will be the court’s dissolution of the injunctive relief. If the injunctive relief was wrongfully issued, the enjoined Party expressly waives all claims for damages incurred as a result of the wrongful issuance.
16. Miscellaneous.
16.1 Insurance. Vendor shall continuously maintain adequate Workers’ Compensation, General Liability and Professional Liability insurance during the term of this Agreement. If the Service involves VinFast’s data or network, the Professional Liability policy must include Internet Liability and Network Protection (Cyber risk) insurance.
16.2 Modifications. Alterations, modifications and additions to the Agreement shall only become valid upon mutual written agreement by the Parties. Verbal alterations, modifications or additions shall not be binding to either Party.
16.3 Transfer. Vendor may not assign, delegate or transfer any of its rights or obligations under this Agreement without the prior written consent of VinFast. VinFast may assign, delegate or transfer any of its rights or obligations to its parents, affiliates or subsidiaries.
16.4 Notices. All notices given by either Party to the other Party will be in writing, by facsimile, registered airmail, electronic mail or courier, and shall be deemed served on the date actually received by the other Party.
16.5 Waiver. A failure to exercise or delay in exercising a right or remedy does not constitute a waiver of the right or remedy or a waiver of other rights or remedies. No single or partial exercise of a right or remedy prevents further exercise of the right or remedy or the exercise of another right or remedy.
16.6 Unenforceability. The invalidity, illegality or unenforceability of any Agreement or Purchase Order terms shall not affect the validity, legality and enforceability of the remainder of the document. If a fundamental provision of the Agreement or Purchase Order is invalid, illegal or unenforceable, such provision will be renegotiated by the Parties with the objective of placing each Party in a position as nearly equal as possible to that had such provision not been invalid, illegal or unenforceable.
16.7 Entire Agreement. This Agreement constitutes the complete and final agreement of the Parties pertaining to its terms and the subject matter hereof, and supersedes the Parties’ prior agreements, understandings and discussions relating thereto. No modification of the Agreement is binding unless it is in writing and signed by VinFast and Vendor.
