EV Connect Subscription Services Agreement

This EV Connect Subscription Services Agreement, including any Sales Order or SOW into which this EV Connect Subscription Services Agreement is incorporated, and together with any addenda or exhibits incorporated herein, and any applicable terms and conditions at https://www.evconnect.com/legal/ (collectively, the “Agreement”) is entered into by and between EV Connect, Inc., a California Corporation  with offices located at 26521 Rancho Parkway S, Lake Forest, CA 92630, E-Mail: legal@evconnect.com (“EVC”), and the subscriber who is agreeing to this Agreement (“Subscriber”) as of the Effective Date.  This Agreement may be amended by EVC from time to time by posting an updated version, and Subscriber’s continued use of the EVC Service constitutes acceptance of the amended terms.

1. DEFINITIONS.

a.) “Certified EVSE” means any EVSE that has been approved by EVC for use with the EVC Service.  A list of all Certified EVSE is available upon request by Subscriber.

b.) “Confidential Information” means any and all information disclosed by one party to the other party, directly or indirectly, in writing, orally, electronically, or in any other form, that is marked as “confidential” or “proprietary” or with a similar designation at the time of the disclosure, or is or should be reasonably understood to be confidential or proprietary to the disclosing party given the nature of the information and the circumstances of the disclosure, including, without limitation, information about the EVC Service, the Documentation, and the terms of this Agreement. Notwithstanding the foregoing, Confidential Information does not include information that (i) is or becomes generally available to the public through no breach of this Agreement or any other agreement by the recipient of the information; (ii) was known by the recipient of the information at or before the time such information was received from the discloser, as evidenced by the recipient’s tangible (including written or electronic) records; (iii) is received from a third-party that is not under an obligation of confidentiality to the disclosing party with respect to such information; or (iv) is independently developed by the recipient of the information without any breach of this Agreement, as evidenced by the recipient’s contemporaneous tangible (including written or electronic) records.

c.) “Documentation” means such manuals, documentation, and any other supporting materials relating to the EVC Service that describe the technical standards, usage guidelines and instructions, and features and operation of the EVC Service that are provided to Subscriber by EVC in connection with this Agreement.

d.) “Driver” means any driver who charges an electric vehicle using EVSE that is managed by the EVC Service.

e.) “Effective Date” means the earlier of the date Subscriber enters into a Sales Order or SOW, or the date Subscriber first accesses and uses the EVC Service.

f.) “EVC Service” has the meaning set forth on Exhibit B.

g.) “EVSE” means electric vehicle supply equipment used to charge electric vehicles, including Level 2 (AC) and Level 3 (DC) chargers, that is managed by the EVC Service.

h.) “Expenses” means the out-of-pocket expenses incurred by EVC in connection with its performance of any Related Services.

i.)“Intellectual Property Rights” means any and all rights existing from time to time under patent, copyright, trademark, trade secret, unfair competition, moral rights, publicity rights, privacy rights laws, and any and all other proprietary rights.

j.) “Legal Requirements” means all applicable laws, rules, regulations, governmental permits, or other binding determinations of any governmental authorities.

k.) “Mobile App” means a mobile version of the EVC Service (Apple and Android compatible) that allows Drivers to search for charging stations, charge their vehicles, receive notifications, communicate with customer support, and otherwise operate the EVC Service from their cell phones.

l.) “Related Services” means any services related to the EVC Service that EVC has agreed to provide to Subscriber as described in a Sales Order or SOW.

m.)“Sales Order” means the order document signed by an authorized representative of each party, online order, or other ordering process that EVC may enable, identifying the EVC Service and Related Services to be provided, the Subscription Term, and the Fees to be paid, incorporated by reference into and governed by the Agreement.

n.) “Service Commencement Date” means, with respect to the Subscription Services, the earlier of: (1) the date the EVSE is commissioned; (2) the date the EVSE is made available for production use; or (3) one hundred twenty (120) days after the Effective Date.

o.) “SLA” means the Service Level Agreement(s) set forth on Exhibit A to this Agreement.

p.) “Statement of Work” or “SOW” means a written statement of work executed by the parties (or attached to a Sales Order) that describes the EVC Service or any Related Services to be provided by EVC to Subscriber and references this Agreement.

q.) “Subscriber Affiliate” means any third party that enters into a written agreement with Subscriber permitting such third party to use the EVC Service (including, without limitation, franchisees of Subscriber) for charging electric vehicles or developing applications that are integrated with the EVC Service.

r.) “Subscriber Data” means all data or information provided solely by or on behalf of Subscriber to EVC in connection with Subscriber’s use of the EVC Service and Related Services, but excluding Usage Data and any information, data, data models and algorithms, content, or materials developed or controlled by EVC or its licensors and made available through or in connection with the EVC Service and Related Services.

s.) “Subscription Services” means the EVC Service and any Related Services that are provided to Subscriber on a recurring subscription basis.

t.) “Subscription Term” means the term of any Subscription Services, commencing on the Service Commencement Date and continuing for the duration specified in the applicable Sales Order or SOW, including any renewals thereof.

u.) “Updates” means any modifications, error corrections, bug fixes, new releases, or other updates of or to the EVC Service and/or Documentation that are generally made available by EVC to its customers at no additional charge during the term of this Agreement.  Updates do not include any releases, options, or future products that EVC provides or charges for separately.

v.) “Usage Data” means data, metrics, and information collected or generated by EVC or the EVC Service relating to Subscriber’s use of the EVC Service and Related Services, including system logs, telemetry data, feature usage statistics, performance data, and configuration information, but excluding Subscriber Data and any personal data in identifiable form of Subscriber, any Subscriber Affiliate, or Driver, or any other Confidential Information of Subscriber.  Usage Data also includes data collected, generated, or derived from electric vehicle charging sessions, including session start and end times, duration, energy dispensed (kWh), charging power levels, state of charge where available, charger and connector identifiers, station location, utilization metrics, applicable rates and fees, and transaction details (collectively, “Charging Session Data”). 

2. EVC SERVICE.

a.) Permitted Use. Subject to the terms and conditions of this Agreement and the timely payment of all Fees hereunder, EVC grants to Subscriber a nonexclusive, nontransferable, non-sublicensable, limited right, during the Subscription Term, to access and use the EVC Service through a compatible Internet browser or other remote Internet interface approved by EVC for the purpose of configuring and administering Subscriber’s network of EVSE; provided, however, that Subscriber’s use of the EVC Service in accordance with the rights above must be exercised solely (a) in accordance with the Documentation; (b) for Subscriber’s own internal business use; and (c) subject to the limitations and restrictions set forth in this Agreement (including, without limitation, in Statement of Work No. 1 attached hereto as Exhibit B). For clarity, the rights above do not include a license with respect to any source code owned by EVC.  Subscriber may provide access to the EVC Service through the Mobile App to as many Drivers as it deems appropriate. Each Subscriber Affiliate and Driver will be considered an agent of Subscriber, and not an agent of EVC.  EVC makes no representations or warranties for the benefit of any Subscriber Affiliate or Driver.  Subscriber will be responsible for (i) ensuring that each Subscriber Affiliate complies with all of the terms and conditions of this Agreement as if it were the Subscriber and (ii) all of the acts and omissions of any Subscriber Affiliate in connection with this Agreement as if such acts or omissions of the Subscriber Affiliate, as applicable, were Subscriber’s own acts or omissions.  Except as set forth in this Section 2(a), no other right or license of any kind is granted by EVC to Subscriber hereunder with respect to the EVC Service.  Except as otherwise expressly set forth in this Agreement, EVC is not obligated to customize or alter the EVC Service for Subscriber. If a Driver is an employee or related party to Subscriber, the Driver will be considered an agent of Subscriber for purposes of this paragraph.

b.) Restrictions.

(1) Subscriber acknowledges that the EVC Service, including, without limitation, the know-how and Intellectual Property Rights embodied therein, constitute the valuable intellectual property of EVC. Subscriber may not, and may not permit others, to (a) copy, disassemble, decompile, “unlock,” reverse translate, reverse engineer, decode, modify, create derivative works based on, or customize the EVC Service, or any components of the EVC Service; (b) copy, use, or commercially exploit in any way the EVC Service (including the processes, methods and know-how embodied in the EVC Service) or any component of the EVC Service, other than as expressly allowed in this Agreement; (c) distribute, assign, sell, lease, sublicense, grant a security interest in, or otherwise offer the benefits of the EVC Service to any third party, whether such arrangement is in the nature of a service bureau, an outsourcing service, or any other similar service or business; (d) access (or attempt to access) the EVC Service by any means other than through the interface that is provided by EVC to Subscriber; (e) gain unauthorized access to the EVC Service, (f) conduct security or vulnerability tests of the EVC Service, or interfere with its operation; or (g) use the EVC Service to develop a product that is similar to or competes with the EVC Service. 

(2) Notwithstanding the foregoing, EVC reserves the right to suspend or permanently terminate any Subscriber Affiliate’s or Driver’s use of the EVC Service (or any portion thereof) if EVC reasonably believes, in its sole discretion, that Subscriber has violated its obligations under Section 2, or that Subscriber’s use of the EVC Service threatens the security or operation of the EVC Service, or risks material harm to the EVC Service or others.

(3) Subscriber may not use the EVC Service to manage any EVSE that is not Certified EVSE. 

c.) Service Level Agreement.  The maintenance of the EVC Service will be governed by the SLA.

d.) Subscriber Responsibilities.

(1) Subscriber agrees that Subscriber’s and all Subscriber Affiliates’ and Drivers’ use of the EVC Service will comply with all Legal Requirements.

(2) Except to the extent otherwise set forth in this Agreement, Subscriber is responsible for providing and for maintaining the same in good working order, at its own expense, all EVSE, other hardware, system software, access devices, network, telecommunications, or other connections required to access the EVC Service.  To ensure a high quality experience for all users, if EVC reasonably determines a Subscriber’s EVSE(s) are non-functional, EVC reserves the right to hide the EVSE(s) from Drivers until issues are resolved and EVSE operability is restored to EVC’s reasonable satisfaction.

(3) Subscriber is responsible for provisioning and managing its user accounts, for safeguarding its access credentials, and for its users’ actions through the EVC Service. Subscriber will ensure that its users keep their access credentials confidential and will promptly notify EVC upon learning of any compromise of user accounts or credentials.

(4) Subscriber Security Program.  Subscriber is solely responsible for the implementation and maintenance of a comprehensive security program that contains reasonable and appropriate security measures and safeguards to protect its computer network, systems, machines and data (“Subscriber Systems”) against any circumstance or event with the potential to adversely impact, compromise, damage, or disrupt Subscriber Systems, or that may result in any unauthorized access, acquisition, loss, misuse, destruction, disclosure, disruption, and/or modification of Subscriber Systems,  including through malware, hacking, or similar attacks (“Cyber Threats”), and Subscriber agrees to regularly monitor Subscriber Systems with respect to Cyber Threats.

(5) Reporting a Vulnerability.  If Subscriber identifies or otherwise becomes aware of any vulnerabilities or other Cyber Threats relating to the EVC Service or any Related Services, Subscriber shall promptly notify EVC of such vulnerability via the Schneider Electric ‘Report a Vulnerability’ page (https://www.se.com/ww/en/work/support/cybersecurity/report-a-vulnerability.jsp) and provide EVC with any reasonably requested information relating to such vulnerability or other Cyber Threat(s) (collectively, “Cybersecurity Feedback”). EVC and its affiliates shall have a non-exclusive, perpetual, and irrevocable right to use, display, reproduce, modify and distribute the Cybersecurity Feedback (including any confidential information or intellectual property contained therein) in whole or part, including to analyze and fix the vulnerability, to create Updates, and to otherwise modify the EVC Service and Related Services, in any manner without restrictions, and without any obligation of attribution or compensation to Subscriber; provided, however, EVC shall not publicly disclose Subscriber’s name in connection with such Cybersecurity Feedback or the use thereof (unless Subscriber consents otherwise). By submitting Cybersecurity Feedback, Subscriber represents and warrants to EVC that Subscriber has all necessary rights in and to such Cybersecurity Feedback and all information it contains, including to grant the rights to EVC described herein, and that such Cybersecurity Feedback does not infringe any proprietary or other rights of third parties or contain any unlawful information.

(6) Subscriber agrees to make available to EVC, at Subscriber’s expense, any Subscriber Materials (as defined below) reasonably necessary for EVC to provide the EVC Service and any Related Services, including without limitation, any Subscriber Materials specified in a SOW.

(7) If Subscriber moves an EVSE to a new location, Subscriber will update the location of such EVSE within the EVC Service within five (5) days.  If Subscriber ceases operating an EVSE, Subscriber will notify EVC in writing within five (5) days.

e.) Secure Communications. EVC reserves the right to periodically assess and validate the security of communications between each EVSE and the EVC Service, to implement security upgrades as reasonably necessary to maintain compliance with applicable industry standards, best practices, and EVC security protocols, and to suspend or terminate connectivity with any EVSE that cannot maintain a secure connection.  EVC will notify Subscriber of any material adverse communications security findings.

f.) Display of Name/Logo. During and after the Term, EVC may display Subscriber’s name and logo on EVC’s website and in EVC’s sales materials for the sole purpose of identifying Subscriber as an existing or former customer of EVC.

3. STATEMENTS OF WORK AND RELATED SERVICES.

a.) Statements of Work. During the term of this Agreement, the parties may, from time to time, execute Statements of Work. The Statement of Work attached hereto as Exhibit B, as well as any future Statements of Work agreed to by the parties, are hereby incorporated into this Agreement.

b.) Resources. EVC will provide such resources and utilize such employees and/or subcontractors, as it reasonably deems necessary to perform any Related Services. The manner and means used by EVC to perform any Related Services are in the sole discretion and control of EVC.

4. CONFIDENTIAL INFORMATION

a.) Confidentiality Obligations.  Each party will (i) hold all Confidential Information of the other party in strict confidence and will not disclose any Confidential Information to any third party except to its officers, employees, contractors and agents (collectively, “Representatives”) who have a need to know such Confidential Information in connection with the performance of its obligations under this Agreement, provided that the receiving party’s Representatives have been informed by the receiving party of the confidential nature of such Confidential Information and have been instructed by such receiving party to keep such Confidential Information confidential in accordance with the terms of this Section 4(a), it being understood that the receiving party will be responsible for any breaches of this Section 4(a) by such Representatives, (ii) avoid the unauthorized use or disclosure of the other party’s Confidential Information using the same degree of care that it uses in safeguarding its own confidential information, but in no event less than a reasonable degree of care, and (iii) use the other party’s Confidential Information only in connection with the performance of its obligations under this Agreement.  Notwithstanding the foregoing, the restrictions on Confidential Information contained in this Section 4(a) will not apply to the extent that such disclosure is: (i) approved in writing by the disclosing party, (ii) necessary for the receiving party to enforce its rights under this Agreement in connection with a legal proceeding, or (iii) required by law or by the order of a court or a similar judicial or administrative body, provided that the receiving party promptly notifies the disclosing party in writing of such required disclosure and cooperates with the disclosing party, at the disclosing party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.

b.) Equitable Relief.  The parties acknowledge that (i) the covenants contained in Section 4(a) are reasonable and necessary to protect the legitimate interests of the parties; (ii) the parties would not have entered into this Agreement in the absence of such covenants; and (iii) any violation or threatened violation of such covenants would cause irreparable harm for which monetary damages would not be adequate.  Therefore, the parties agree that, in the event of a breach of Section 4(a) by a party, the other party will be entitled to seek equitable relief in addition to any remedies it may have hereunder or at law, and the breaching party will reimburse the non-breaching party for the reasonable costs associated with such enforcement (including any attorney’s fees).

5. PAYMENT.

a.) Fees. Subscriber will pay EVC (i) the fees (collectively, the “Fees”) set forth in Exhibit B to this Agreement and in each Sales Order or SOW and (ii) any Expenses by ACH in U.S. Dollars directly to EVC’s bank account. If EVC incurs any fees or expenses resulting from Subscriber’s chosen method of payment, Subscriber must reimburse EVC for such fees and expenses.       

b.) Invoices and Terms. Unless otherwise stated in the Agreement, all Fees are invoiced at execution of the Sales Order or SOW in advance, are non-refundable, and due within thirty (30) days of the invoice date. If Subscriber breaches the immediately preceding sentence, Subscriber hereby authorizes EVC to debit Subscriber’s designated bank account (ACH) for any Fees then accrued or thereafter accrued until the expiration or termination of this Agreement, without any further authorization from Subscriber. If Subscriber wishes to alter its designated bank account, Subscriber will immediately provide EVC with the information regarding the new designated account necessary for EVC to debit such account pursuant to this paragraph. If any Fee or other amount owed is past due, EVC reserves the right to (i) apply a service charge to such overdue balance at the rate of 1.5% per month (but in no event more than the maximum rate allowed by law); (ii) suspend Subscriber’s access to the EVC Service and EVC’s performance of Related Services; and/or (iii) terminate the Agreement.  Subscriber will reimburse EVC for all reasonable costs and expenses incurred (including reasonable attorneys’ fees, court costs, and collection agency fees) in collecting any past due amounts owed under this Agreement.

c.) Taxes.  Subscriber will also be responsible for payment of all taxes (other than taxes based on EVC’s income), fees, duties, and other governmental charges, and any related penalties and interest, arising from the payment of Fees to EVC under this Agreement, whether collected by taxing authorities pursuant to existing Legal Requirements or Legal Requirements enacted in the future. Subscriber will pay all Fees to EVC free and clear of, and without reduction for, any withholding taxes. Taxes will be calculated at billing when applicable.

d.) Other Payments.  To the extent permitted by Legal Requirements, EVC will be entitled to prepare and submit ongoing reports for, and to apply for, receive, and retain any and all credits provided by governmental authorities and/or utilities resulting from Subscriber’s, Subscriber Affiliates’, and Drivers’ use of EVSE.  Subscriber acknowledges and agrees that EVC’s ability to apply for and receive such credits is an integral, bargained-for component of the parties’ commercial arrangement and is reflected in the pricing and Fees set forth in this Agreement.  For the avoidance of doubt, the foregoing does not apply with respect to any rebates or incentives available solely related to the purchase or installation of EVSE.

6. TERM; TERMINATION.

a.) Term of the Agreement. The term of this Agreement will commence on the Effective Date and will continue for the duration of all Subscription Terms, or otherwise until completion of all Sales Orders and SOWs (the “Term”).  If no Sales Order or SOW is in effect, either party may terminate this Agreement for any or no reason upon thirty (30) days’ notice to the other party.

b.) Term of the Sales Order / SOW.  A Sales Order or SOW may specify the Subscription Term, or otherwise the effective duration of any Related Services. 

c.) Renewal of Subscription Term.  Unless otherwise specified in a Sales Order or SOW, and subject to the Subscription Services continuing to be generally available, each Subscription Term will automatically renew for successive one (1) year periods at EVC’s then-current pricing unless either party notifies the other party of its intention not to renew the Subscription Term at least sixty (60) days before the end of the then-current Subscription Term. EVC will notify Subscriber of the pricing applicable to any such renewal at least ninety (90) days prior to the renewal date (which notice may be sent via email or communication through the EVC Service).

d.) Termination.  Either party may terminate this Agreement or any Sales Order or SOW immediately upon written notice to the other party if (i) the other party materially breaches this Agreement and such breach is not cured within thirty (30) days after written notice thereof by the non-breaching party; (ii) ceases operation without a successor; or (iii) becomes insolvent or unable to pay its debts when due, or seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within sixty (60) days.

e.) Effects. Upon the expiration or termination of this Agreement for any reason: (i) any amounts owed to EVC before such effective date of termination or expiration will be immediately due and payable; (ii) all rights and licenses granted to Subscriber (and Subscriber Affiliates and Drivers) hereunder will immediately terminate; (iii) Subscriber will immediately stop using the EVC Service and Related Services; and (iv) within thirty (30) days, each party will, at the other party’s option, either destroy or permanently erase all copies of the other party’s Confidential Information under its control; provided, however, that each party may retain one archival copy of the other party’s Confidential Information in accordance with its routine computerized backup procedures, and further provided that any such archival copies shall remain subject to the confidentiality provisions of this Agreement.  Either party’s termination of this Agreement will be without prejudice to any other right or remedy that it may have at law or in equity, and will not relieve either party of breaches occurring prior to the effective date of such termination.  Sections 1, 2(b), 2(f), 4-10, and 12, and any other provisions in the Exhibits to this Agreement that by their nature would reasonably be expected to survive, will survive the expiration or termination of this Agreement. 

7. PROPRIETARY RIGHTS.

a.) General.  Except as expressly specified in this Agreement, neither party grants the other any rights or licenses to its intellectual property under this Agreement.

b.) EVC.  As between EVC and Subscriber, EVC will exclusively own and retain all right, title, and interest, including all Intellectual Property Rights, in and to (i) the EVC Service (including all Documentation) and any Related Services, including, without limitation, all software, technology, information, know-how, content, and materials relating thereto; (ii) all Confidential Information of EVC; (iii) any suggestions, recommendations, or other feedback relating to the EVC Service and any Related Services provided by Subscriber or any Subscriber Affiliate or Driver to EVC; (iv) the Usage Data; and (v) any modifications, Updates, copies, translations, improvements, derivative works, or adaptations of any of the foregoing, irrespective of who authored, invented, or made same. 

c.) Subscriber. As between EVC and Subscriber, Subscriber will exclusively own all right, title, and interest, including all Intellectual Property Rights, in and to (i) the Subscriber Data and (ii) all Confidential Information of Subscriber (collectively, the “Subscriber Materials”). Subscriber hereby grants EVC a royalty-free, worldwide, non-exclusive right and license to use, reproduce, distribute, transmit, perform, display, and make derivative works of the Subscriber Materials, or any portion thereof, solely for the purpose of providing and maintaining the EVC Service and performing any Related Services, and to comply with Legal Requirements.

d.) Usage Data.  EVC may collect Usage Data and use it to develop, improve, operate, and support its products and services, and for other lawful business purposes, including benchmarking and reports. However, EVC will not disclose Usage Data to third parties unless it is (a) anonymized and aggregated such that it does not identify Subscriber, Subscriber Affiliates, or Drivers; or (b) in accordance with Section 4 (Confidential Information) of this Agreement to perform its obligations.  Without limiting the foregoing, Subscriber acknowledges and agrees that EVC may disclose Charging Session Data to third party utilities and governmental or regulatory authorities to the extent EVC is required to share such Charging Session Data with such third parties under a written agreement.

e.) Charging Session Data.  During the Subscription Term, EVC grants Subscriber a limited, nonexclusive, nontransferable right to access, view, download, use, and create derivative works from Charging Session Data relating to Subscriber’s and Subscriber Affiliate’s accounts, EVSEs, locations, or authorized end users, solely for Subscriber’s internal business purposes.  Subscriber shall retain a perpetual, irrevocable, royalty free right to use, reproduce, store, analyze, and create derivative works from any Charging Session Data that Subscriber lawfully exported or downloaded from the EVC Service during the Subscription Term, solely for Subscriber’s internal business purposes.

8. LIMITED WARRANTY.

a.) Mutual. Each party represents and warrants to the other party that the execution, delivery and performance of this Agreement (i) is within its corporate powers, (ii) has been duly authorized by all necessary corporate action on such party’s part, and (iii) does not and will not contravene, violate, or constitute a default under, and is not and will not be inconsistent with, any Legal Requirement, judgment, decree or order, or any contract, agreement, or other undertaking, applicable to such party.

b.) EVC Service. EVC warrants that, when operated in accordance with the Documentation, the EVC Service will substantially conform to the specifications set forth in the Documentation. Notwithstanding the foregoing, EVC’s warranty in this paragraph will not apply to the extent that EVC’s breach of such warranty arises from (i) any use of the EVC Service not in accordance with the terms of this Agreement or any Legal Requirements; (ii) any use of the EVC Service in combination with other services, products or data provided by Subscriber or third parties; or (iii) any modification of the EVC Service by Subscriber or any third party.  Subscriber shall report a breach of warranty in reasonable detail within thirty (30) days after discovering the issue in the EVC Service.  EVC’s sole obligation, and Subscriber’s sole and exclusive remedy for a breach of this warranty will be, at EVC’s option, either to (i) remedy the purported defect within a reasonable time or (ii) terminate this Agreement and refund any Fees that have been prepaid by Subscriber for the EVC Service for any period of time after such termination.  

c.) Related Services. EVC warrants that it will perform any Related Services in a professional and workmanlike manner consistent with applicable industry standards.  This warranty shall be in effect for a period of thirty (30) days from the date of completion of the Related Services.  EVC’s sole obligation, and Subscriber’s sole and exclusive remedy for a breach of this warranty will be, at EVC’s option, either to: (a) re-perform any Related Services that fail to meet the foregoing warranty; or (b) terminate the applicable Sales Order or SOW and refund any Fees that have been paid by Subscriber for any Related Services that fail to meet the foregoing warranty.

d.) General Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 8(a), 8(b) and 8(c), THE EVC SERVICE AND RELATED SERVICES ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND EVC, ITS AFFILIATES, SUPPLIERS, AND LICENSORS EXPRESSLY DISCLAIMS ALL WARRANTIES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WHETHER EXPRESS, IMPLIED, OR STATUTORY, AS TO ANY ASPECT OF THE EVC SERVICE, ANY RELATED SERVICES, OR ANY OTHER ASPECT OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. EVC DOES NOT WARRANT THAT THE EVC SERVICE AND RELATED SERVICES WILL MEET ALL OF SUBSCRIBER’S REQUIREMENTS, THAT ITS ACCESSIBILITY OR OPERATION WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE, THAT THE ELECTRICAL, INTERNET, WIRELESS, OR CELLULAR NETWORKS NECESSARY TO OPERATE THE EVC SERVICE WILL BE AVAILABLE, OR THAT THE EVC SERVICE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EVC IS NOT LIABLE TO SUBSCRIBER FOR ANY LOSS OR CORRUPTION OF SUBSCRIBER CONTENT ON THE EVC SERVICE.  SUBJECT TO ANY EVC OBLIGATIONS IN THE SLA, SUBSCRIBER ACKNOWLEDGES THAT ACCESS TO INFORMATION STORED IN THE EVC SERVICE IS NOT GUARANTEED, AND SUBSCRIBER AGREES TO EMPLOY APPROPRIATE BACK-UP PROCEDURES FOR DATA STORAGE IN ORDER THAT ANY LOSS OF DATA CAUSED BY THE EVC SERVICE OR ITS UNAVAILABILITY WILL NOT ADVERSELY AFFECT SUBSCRIBER. TO THE EXTENT EVC MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.

e.) Third-Party Data. THE EVC SERVICE MAY CONTAIN DATA FROM THIRD-PARTY PROVIDERS AND/OR WEBSITES THAT ARE NOT OWNED OR CONTROLLED BY EVC. EVC HAS NO CONTROL OVER, AND ASSUMES NO RESPONSIBILITY FOR, SUCH DATA OR POLICIES, OR PRACTICES OF ANY THIRD-PARTY DATA PROVIDER. SUBSCRIBER EXPRESSLY RELIEVES EVC FROM ANY AND ALL LIABILITY ARISING FROM SUBSCRIBER’S USE OF ANY SUCH THIRD-PARTY DATA.

9. LIMITATION OF LIABILITY.

a.) Cap; Damages Waiver.  TO THE GREATEST EXTENT PERMITTED BY LEGAL REQUIREMENTS, EVC’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT PAID OR PAYABLE BY SUBSCRIBER TO EVC PURSUANT TO THIS AGREEMENT FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH SUCH LIABILITY AROSE. TO THE GREATEST EXTENT PERMITTED BY LEGAL REQUIREMENTS, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD-PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, GOODWILL, LOST PROFITS OR LOST DATA, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING FROM SUCH PARTY’S OR THIRD PARTY’S PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT OR THE OPERATION OF SUCH PARTY’S BUSINESS.

b.) Exclusions.  The limitations of liability set forth in Section 9(a) shall not apply with respect to any claims or liabilities arising from (a) bodily injury or death caused by the negligence of a party, its employees or agents; (b) a party’s gross negligence, willful misconduct, fraud, or fraudulent misrepresentation; (c) Subscriber’s breach of Section 2(b)(1); or (d) any other liability that cannot be excluded or limited by Legal Requirements.

c.) Nature Of Claims And Failure Of Essential Purpose. THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION 9 (LIMITATION OF LIABILITY) APPLY REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNITY, STRICT LIABILITY, OR OTHERWISE AND WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.

10. INDEMNIFICATION.

a.) EVC.  EVC will, at its sole expense, defend, indemnify, save and hold harmless Subscriber and Subscriber’s officers, directors, agents and employees from any and all damages, losses, liabilities, costs or expenses, including reasonable attorneys’ fees (collectively, “Losses”), resulting from third-party claims, demands, suits, or proceedings (collectively, “Claims”) arising out of or relating to (i) the infringement or misappropriation of any third-party’s Intellectual Property Rights by the EVC Service (which, for clarity, does not include Subscriber Materials) or by EVC when performing Related Services, and (ii) EVC’s gross negligence or willful misconduct.  Notwithstanding the foregoing, EVC’s indemnity obligation in this paragraph will not apply to the extent that such obligation arises from (i) any use of the EVC Service and Related Services not in accordance with the terms of this Agreement or any Legal Requirements; (ii) any use of the EVC Service and Related Services in combination with other services, products, or data not provided by EVC; or (iii) any modification of the EVC Service by anyone other than EVC. 

b.) Subscriber.  Subscriber will, at its sole expense, defend, indemnify, save and hold harmless EVC, its affiliates, and each of their respective officers, directors, agents and employees from any and all Losses resulting from Claims arising out or relating to (i) an alleged breach by Subscriber or any Subscriber Affiliate of any representation, warranty or covenant of Subscriber in this Agreement; (ii) the Subscriber Materials; (iii) any representations or warranties made by Subscriber to a Subscriber Affiliate, Driver, or other third party concerning any aspect of the EVC Service or Related Services; (iv) any acts or omissions of Subscriber, or any Subscriber Affiliate, in connection with Subscriber’s use of the EVC Service, other than as expressly authorized in this Agreement; (v) any bodily injury, death, or property damage occurring on Subscriber’s premises or any Subscriber Affiliate’s premises unless and except to the extent caused by EVC’s negligence or willful misconduct; and (vi) Subscriber’s gross negligence or willful misconduct.

c.) Requirements.  Any party seeking indemnification under this Agreement will (i) promptly notify the indemnifying party in writing regarding any facts that may give rise to a claim for indemnification under this Agreement (provided that any delay in notification will not relieve the indemnifying party of its obligations hereunder except to the extent that the indemnifying party is actually prejudiced by such delay); (ii) provide the indemnifying party with reasonable information, assistance and cooperation in defending the lawsuit or proceeding (at the indemnifying party’s expense, to the extent of any out-of-pocket expenses); and (iii) give the indemnifying party full control and sole authority over the defense and settlement of such claim, subject to the indemnified party’s approval of any such settlement, which approval will not be unreasonably withheld or delayed.

d.) Infringement.  In response to an actual or potential infringement-related Claim, EVC may, at its sole option and expense: (a) procure for Subscriber the right to continue using the EVC Service and Related Services; (b) replace or modify the allegedly infringing portion of the EVC Service or Related Services to avoid infringement, without reducing their overall functionality; or (c) terminate this Agreement or the affected Sales Order or SOW and refund any prepaid, unused Fees for the terminated portion.

e.) Exclusive Remedy. THIS SECTION 10 SETS OUT SUBSCRIBER’S EXCLUSIVE REMEDY AND EVC’S SOLE LIABILITY REGARDING ANY ACTUAL OR POTENTIAL CLAIMS RELATING TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS.

11. INSURANCE.  During the Term, EVC will maintain the following insurance coverages with companies that are licensed to do business in each U.S. state and Canada and are rated at least A-:VIII by A.M. Best Company: (a) Workers’ Compensation insurance as required by statute and Employers’ Liability with limits of $5,000,000 Each Accident, Each Employee, and Policy Limit; (b) Commercial General Liability insurance with limits of $10,000,000 per occurrence and $15,000,000 aggregate; (c) Professional Liability/Errors & Omission insurance with limits of $5,000,000 per claim and aggregate; and (d) Cyber Liability insurance with limits of $10,000,000 per claim and aggregate.  Upon Subscriber’s request, EVC will provide certificates of insurance evidencing the insurance coverages set forth above.

12. MISCELLANEOUS.

a.) Arbitration.  In the event of any dispute, claim or controversy between the parties arising out of or relating to this Agreement, whether in contract, tort, equity or otherwise, and whether relating to the meaning, interpretation, effect, validity, performance or enforcement of this Agreement, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim or controversy will be resolved by and through an arbitration before one (1) arbitrator in Los Angeles, CA, to be administered by Judicial Arbitration and Mediation Services, Inc., or its successor, pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Both the foregoing agreement of the parties to arbitrate any and all such disputes, claims and controversies, and the results, determinations, findings, judgments and/or awards rendered through any such arbitration will be final and binding on the parties and may be specifically enforced by legal proceedings in any court of competent jurisdiction. This clause will not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The costs of the arbitrator, the arbitration proceeding, any proceeding in court to confirm or to vacate any arbitration award, and each party’s reasonable attorneys’ fees and costs will be borne by the unsuccessful party or, at the discretion of the arbitrator(s), may be prorated between or among the parties in such proportion as the arbitrator(s) determine(s) to be equitable and will be awarded as part of the arbitrators’ award.

b.) Export Restrictions.  EVC is subject to the laws of, and the items provided by EVC under this Agreement contain or may contain components and/or technologies from the United States of America (“US”), the European Union (“EU”), and/or other nations. Subscriber acknowledges and agrees that the supply, assignment, and/or usage of the products, software, services, information, other items, and/or the embedded technologies (hereinafter referred to as “Deliverables”) and all activities carried out under this Agreement shall fully comply with applicable trade, export control, economic and financial sanctions and anti-boycott requirements imposed, administered or enforced from time to time by the US, the United Kingdom, the EU, and other applicable jurisdictions (collectively, “International Trade Controls”).  Unless applicable International Trade Control authorizations have been obtained from the relevant authorities and EVC has approved such actions in writing, the Deliverables shall not (i) be exported and/or re-exported to any destination and party (including an individual, group, and/or legal entity) restricted by International Trade Controls; or (ii) be used for those purposes and fields restricted by International Trade Controls. Subscriber also agrees that the Deliverables will not be used either directly or indirectly in any rocket systems, unmanned air vehicles, or nuclear weapons delivery systems, nor in any design, development, production, or use for any weapons, (including but not limited to chemical, biological, or nuclear weapons). If any necessary or advisable licenses, authorizations, or approvals are not obtained, whether arising from inaction by any relevant government authority or otherwise, or if any such licenses, authorizations or approvals are denied or revoked, or if International Trade Controls would prohibit EVC from fulfilling its obligations under this Agreement, or would, in EVC’s judgment, otherwise expose EVC, its affiliates, suppliers, or licensors to a risk of liability under International Trade Controls if it fulfilled the Agreement, EVC shall be excused from all obligations under such this Agreement.

c.) Entire Agreement; Amendments. This Agreement constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous proposals, agreements, negotiations, and communications, whether oral or written. EVC’s acceptance of any order or provision of the EVC Services is expressly limited to the terms of this Agreement. EVC rejects any additional or different terms proposed by Subscriber, including in any purchase order, acknowledgment, invoice, procurement portal, or other document, and none of such terms will apply, even if EVC performs after receipt thereof, unless expressly agreed to in a writing signed by an authorized officer of EVC. Any purchase order or other document issued by Subscriber (whether before or after acceptance of this Agreement) is for administrative convenience only and will be deemed solely a confirmation of Subscriber’s acceptance of this Agreement, and will not modify, expand, or supplement this Agreement, and all such additional or different terms are hereby rejected and will be null and void.

d.) EVC may amend this Agreement at any time, and Subscriber’s continued use of the EVC Service shall constitute acceptance of such amendment.

e.) Waivers.  The waiver by either party of a breach of or a default under any provision of this Agreement must be in writing and will not be construed as a waiver of any subsequent breach or default under the same or any other provision of this Agreement.  No delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operates as a waiver of any right or remedy.      

f.) Severability.  If the application of any provision of this Agreement to any particular facts or circumstances will be held to be invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, then (i) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement will not in any way be affected or impaired thereby and (ii) such provision will be enforced to the maximum extent possible so as to effect the intent of the parties and reformed without further action by the parties to the extent necessary to make such provision valid and enforceable.

g.) Assignment. The rights granted and obligations undertaken in this Agreement are personal to Subscriber and Subscriber agrees not to transfer, assign or sublicense such rights or obligations to any third-party. Any attempted transfer, assignment or sublicense of such rights or obligations by Subscriber will be null and void.

h.) Relationship.  The relationship of EVC and Subscriber established by this Agreement is that of independent contractors, and nothing contained in this Agreement will create or be construed to create any partnership, joint venture, agency, franchise, sales representative, employment or fiduciary relationship between the parties or any of its respective agents or employees. Nothing in this Agreement grants to either party the authority to make any promise, warranty, guarantee, or representation that will create any obligation or liability whatsoever, whether express or implied, on behalf of the other.

i.) Law; Venue. This Agreement will be governed by and construed in accordance with the laws of the State of California, without giving effect to any contrary choice of law rules, and applicable United States federal law. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.

j.) Notices. All notices under this Agreement will be in writing and will be delivered to a party at the physical address or e-mail address specified in the Sales Order, Attn: Chief Legal Officer, by: (1) depositing the notice in the mail, using registered mail, return receipt requested; (2) overnight delivery service; (3) e-mail; or (4) hand delivery to an individual authorized to accept such delivery. The notice will be effective; (i) seven (7) calendar days after deposit in the mail; (ii) the next business day after deposit with an overnight delivery service; (iii) upon receipt by e-mail; or (iv) on the date of hand delivery.

k.) Force Majeure. Except for Subscriber’s obligations to pay EVC hereunder, neither party will be liable to the other party for any failure or delay in performance caused by reasons beyond its reasonable control.

l.) Construction. The terms of this Agreement have been negotiated by the parties hereto and the language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent. This Agreement will be construed without regard to any presumption or rule requiring construction against the party causing such instrument or any portion thereof to be drafted, or in favor of the party receiving a particular benefit under this Agreement.

m.) Headings.  The captions and section and paragraph headings used in this Agreement are inserted for convenience only and will not affect the meaning or interpretation of this Agreement.

n.) Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same Agreement. All signed fax copies of the Agreement will be deemed as valid as an original.

o.) Trust Charter.  EVC is part of Schneider Electric’s portfolio of companies and follows Schneider Electric’s Trust Charter.  In the event Subscriber has concerns related to ethics, compliance, Schneider Electric’s Trust Charter, and/or any potential violations of these policies, Subscriber is welcome to make use of Schneider Electric’s TrustLine. The TrustLine is Schneider Electric’s global helpline for external stakeholders and is a confidential channel through which customers and external parties can ask questions and raise concerns. Reports can be made using the link below: https://secure.ethicspoint.eu/domain/media/en/gui/104677/index.html.

p.) Free Trials and Betas.  Subscriber may receive access to the EVC Service and/or Related Services, or certain features thereof, on a free trial, proof-of-concept, or pilot basis, or as an alpha, beta, or early access offering (collectively, “Trials and Betas”).  To the extent that EVC makes Trials and Betas available to Subscriber, Subscriber hereby acknowledges and agrees that: (a) the Trials and Betas may not contain all of the features and functions made generally available by EVC to purchasers, or may be inoperable, incomplete, or include features never released; (b) EVC may, at any time and without liability to Subscriber, modify or discontinue Trials and Betas or Subscriber’s access thereto; and (c) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE TRIALS AND BETAS ARE PROVIDED “AS IS” AND EVC OFFERS NO WARRANTY, INDEMNITY, SERVICE LEVEL AGREEMENT, OR SUPPORT, AND ITS MAXIMUM AGGREGATE LIABILITY FOR TRIALS AND BETAS WILL NOT EXCEED ONE HUNDRED DOLLARS ($100). For the avoidance of doubt, Trials and Betas do not include prepaid bundles or any EVC products and services (including the EVC Service and Related Services) that are bundled or provided in connection with the purchase of other products, such as hardware and EVSE, from EVC or EVC’s authorized resellers and distributors.

EXHIBIT A-1

Service Level Agreement – EVC Service

1. DEFINITIONS.

a.) “Error” means, with respect to this Exhibit only, an event that causes interruption to, or a reduction in, the quality of, the Software.

b.) “EV” means electric vehicle.

c.) “EVSE” means the hardware components (electric vehicle supply equipment) that make up an EV charging station. 

d.) “Host” means the owner or operator of an EV charging station.

e.) “Response Time” means, after EVC receives notice of an Error, the amount of time it takes EVC to provide Subscriber with an update and potential resolution time for such Error. 

f.) “Resolution Time” means, after EVC receives notice of an Error, the amount of time it takes EVC to resolve such Error, which may include a permanent fix or temporary workaround.

g.) “Scheduled Downtime” means the number of hours in a given calendar month that one or more material elements of the Software is not available to Subscriber because of scheduled system maintenance across the Software (i.e., not Subscriber-specific) for which EVC has provided Subscriber with at least 48 hours prior notice.  Notwithstanding the foregoing, Software downtime that occurs any Tuesday between 2:00 a.m. and 4:00 a.m. Pacific Time will qualify as “Scheduled Downtime” without the need for EVC to provide prior notice to Subscriber. EVC will use commercially reasonable efforts to perform Scheduled Downtime from 11:00 p.m-4:00 a.m. Pacific Time.

h.) “Severity Levels” mean the categories of Errors set forth below: