(Effective January 1, 2016)
- Customers. Customers are defined as those entities (companies or individuals) which purchase charging station equipment; charging station services; charging station management services; or any other products or services which EV Connect sells.
- Charging Stations. Electric vehicle charging stations which are manufactured by other entities, but resold by EV Connect to Customers.
- SaaS Services or Management Services. Software-as-a-Service or Management Services refer to the management service and platform provided by EV Connect to the Charging Stations or charge stations not purchased from or through EV Connect.
- Charging Systems. Charging Systems include Charging Stations, installation of Charging Stations (even if the installation is not for charging stations purchased from or through EV Connect), and SaaS Services (even if management is not for charging stations purchased from or through EV Connect).
- Parties. Refers to EV Connect and Customers jointly.
2. Placement of Orders
- Purchase of Charging Systems. These Terms and Conditions of Purchase (“Terms”) govern the Customer’s purchase of Charging Systems from EV Connect. Customer’s initial purchase and all future purchases of Charging Systems made by Customer shall be made by a binding, written purchase order from the Customer specifying (i) the number of Charging Station(s) to be purchased; (ii) models of Charging Station(s) to be purchased, (iii) requested delivery date(s) (which, absent agreement between the parties, shall be a date that is no less than sixty (60) days after the date of the purchase order from the Customer), and (iv) that Customer’s purchase of Charging Systems is subject to all of the terms and conditions contained in these Terms. Any additional printed terms and conditions in Customer’s purchase order which conflict with, vary or add to the terms and conditions of these Terms, shall be of no force and effect, unless the parties hereto agree in writing, in advance, to accept such additional terms and conditions.
- Acceptance of Purchase Orders. All purchase orders and modifications to purchase orders are subject to acceptance or rejection by EV Connect in its sole discretion. No purchase order shall be binding upon EV Connect unless and until so accepted in writing by an authorized representative of EV Connect. EV Connect agrees to use commercially reasonable efforts to notify Customer of its acceptance or rejection of Customer’s order within ten (10) business days after receipt thereof. Any Customer purchase order accepted by EV Connect is referred to in these Terms as, an “Accepted Order.” Accepted Orders are non-cancelable, non-returnable and non-refundable.
- Refusal of Purchase Orders. EV Connect may withhold shipments to Customer if Customer has (i) exceeded its applicable credit limit, if any, and not provided for prepayment, (ii) is in violation of its payment obligations or otherwise is in material breach of these Terms, (iii) is deemed by EV Connect, in its sole discretion, to be a competitive attempt to damage the reputation of or intellectual property of EV Connect.
- Stations Require Subscription to SaaS Offerings. The Charging Stations are designed to work with EV Connect’s cloud-based application services (“SaaS Offerings”). Access to SaaS Offerings requires the Customer to enter into a Master Services and Subscription Agreement with EV Connect for such Saas Offerings.
- Shipping Costs; Terms. All shipping, unless otherwise agreed to by the Parties in writing, shall be FOB Origin (typically, the Charging Station manufacturer’s production or warehouse facility). Customer shall be responsible for all costs of shipping, transportation, insurance, warehousing, and other charges and costs associated with shipment of the Charging Systems to Company. All shipping dates are approximate and are based upon prompt receipt of all necessary information from the Customer. In no event shall EV Connect be liable for any costs related to delays in delivery of the Charging Systems. Customer’s sole remedy for any material delay in delivery of the Charging Systems shall be cancellation of the order, which must be made in writing to EV Connect no later than 24 hours before the expected (materially delayed) shipment day of the Charging Systems.
- Transfer of Title. Delivery of the Charging Systems to Customer shall be completed upon delivery of the Charging Systems to Customer’s location as specified in the Customer’s purchase order to EV Connect. Risk of loss and damage to the Charging Systems shall pass to Company upon the delivery of such Charging Systems. EV Connect shall use commercially reasonable efforts to deliver Charging Systems ordered by Customer on the scheduled delivery date. All claims for non-conforming shipments must be made in writing to EV Connect within twenty (20) days of the passing of risk of loss and/or damage, as described above. Any claims not made within such period shall be deemed waived and released.
- Substitutions. EV Connect shall have the right to make reasonable substitutions and modifications to Charging Systems and in the specifications of Charging Systems to be delivered under the terms of any applicable purchase order, provided that such substitutions or modifications will not materially affect overall Charging Station form, fit, function or safety specifications.
4. Invoicing and Payment
- Invoicing; Charging Stations. Unless otherwise agreed in writing by the Parties, EV Connect shall issue an invoice to the Customer on or after the date it or the manufacturer ships the ordered Charging Stations; provided that, EV Connect may condition its acceptance of a purchase order on such credit and/or prepayment terms as EV Connect, in its reasonable discretion, determines appropriate due to, among other things, Customer’s prior payment history and/or the size of the order. In the case of any change to the applicable credit and/or prepayment terms, no purchase order or acceptance thereof will be effective unless and until Company has consented in writing thereto. If Company causes a delay in delivery, EV Connect may issue its invoice at any time on or after the scheduled delivery date.
- Invoicing; Installation and Management. Unless otherwise agreed in writing by the Parties, EV Connect shall begin issuing invoices for Charge Station installation and Management Services to the Customer on or after the date the ordered Charging Stations are activated and connected to the EV Connect network. If Company causes a delay in delivery and/or installation of the Charging Stations, EV Connect may issue its invoice at any time on or after the scheduled delivery date for all components of the Charging Systems.
- Payment Terms. All invoices shall be paid within thirty (30) days of Customer’s receipt thereof. Fees for SaaS Services subscriptions, unless pre-paid, shall be invoiced on each anniversary date of the Charge Station’s activation. Invoices not paid when due are subject to interest at the rate of one and one-half percent (1.5%) per month or, if less, the highest rate allowed under applicable law.
- Payment Default. Should Customer not make payment for SaaS Services within sixty (60) days of an invoice for said Services, EV Connect may, at its sole discretion, (i) discontinue offering SaaS Services to the Customer, (ii) deactivate the Charging Station(s) related to the unpaid invoices, and (iii) only restore functionality to the affected Charging Stations upon full-payment of all outstanding invoices for SaaS Services and payment of a $250 reactivation charge.
- No Right of Set-Off; No Right of Return. Invoiced amounts are not subject to reduction by set-off or otherwise without the express written permission of EV Connect. All sales are final and Customer shall have no right of return, provided, that, EV Connect shall comply with its obligations under the Warranty (as defined below).
- Taxes, Duties, Etc. All amounts due to EV Connect under these Terms and/or any applicable purchase order are net of any duties, any sales, use, excise, value-added, withholding, or similar tax of any kind and any and all other fees and charges of any nature (collectively, “Taxes”) imposed by the United States or any foreign, state or local governmental entity or instrumentality thereof on the purchase, shipment, use or sale of the Charging Systems by or to the Customer, other than taxes measured by EV Connect’s income, corporate franchise, or personal property ownership. Where applicable, EV Connect shall bill Customer for the full amount of such taxes and shall include such amount as a separate line item on the invoice(s) sent to the Customer; provided that, EV Connect’s failure to so bill the Customer shall not relieve Customer from the obligation to pay any Taxes described in this Section 3.E.
- Payment in Dollars. All amount payable under these Terms shall be paid in United States Dollars. If Company is located outside of the United States, Customer agrees to take all necessary actions required, including registration of these Terms and application for permission to make payments to EV Connect hereunder, with the appropriate government authorities in the Customer’s jurisdiction, or such other institution or official, and to take such other measures as may be necessary to comply with any government currency controls in effect in Customer’s jurisdiction, as soon as reasonably practicable after execution of these Terms. Customer shall remit payment to EV Connect, at Customer’s option:
- via wire or ACH transfer to an account designated by EV Connect in writing from time-to-time; or
- by check drawn on a registered and certified bank or financial institution, made out to “EV Connect, Inc.”
- All Orders Subject to Credit Approval. All orders are subject to credit approval by EV Connect. The amount of credit or terms of payment may be changed or credit withdrawn by EV Connect in its reasonable discretion without advance notice. EV Connect may, in its sole discretion, withhold further manufacture, performance or shipment; require immediate cash payments for past and future shipments or performance; or require other security satisfactory to EV Connect before further manufacture, performance or shipment is made; and may, if shipment has been made, recover the goods from the carrier pending receipt of such assurances.
- Provisions Relating to Shipments in Lots. If these Terms require or authorize delivery of goods in separate lots, shipments or milestones to be separately accepted by Customer, Customer may only refuse such portion of a lot, shipment or milestone that fails to comply with the requirements of these Terms. Customer may not refuse to receive any lot or portion thereof for failure of any other lot or portion or a lot to be delivered or to comply with these terms, unless such right of refusal is expressly provided for on the face hereof. Customer shall pay for each lot in accordance with the terms hereof. Products held for Customer are at Customer’s sole risk and expense.
- Prices do not include Freight, Etc. Except to the extent expressly stated in these Terms, EV Connect’s prices do not include any freight, storage, insurance, taxes, excises, fees, duties or other government charges related to the goods, and Customer shall pay such amounts or reimburse EV Connect for any amounts EV Connect pays. If Customer claims a tax or other exemption or direct payment permit, it shall provide EV Connect with a valid exemption certificate or permit and indemnify, defend and hold EV Connect harmless from any taxes, costs and penalties arising out of same. EV Connect’s prices include the costs of its standard domestic packing, only. Any deviation from this standard packing (domestic or export), including U.S. Government sealed packing, shall result in extra charges to the Customer. To determine such extra charges, Customer should consult with EV Connect’s sales personnel. Any and all increases, changes, adjustments or surcharges (including, without limitation, fuel surcharges) which may be in connection with the freight charges, rates or classification included as part of these terms, shall be for Customer’s account.
- Disputes. In the event Customer disputes any portion or all of an invoice, it shall notify EV Connect in writing of the amount in dispute and the reason for its disagreement within twenty-one (21) days of receipt of the invoice. The undisputed portion shall be paid when due, and finance charges on any unpaid portion shall accrue, from the date due until the date of payment, to the extent that such amounts are finally determined to be payable to EV Connect.
- Remedies upon Payment Default. Upon Customer’s default of these Terms, EV Connect may, in addition to any other rights or remedies it may have at law or otherwise, subject to any cure rights of Customer, declare the entire balance of Customer’s account immediately due and payable or foreclose any security interest in the goods delivered. If any unpaid balance is referred for collection, Customer agrees to pay EV Connect, to the extent permitted by law, reasonable attorneys’ fees in addition to all damages otherwise available, whether or not litigation is commenced or prosecuted to final judgment, play any court costs or expenses incurred by EV Connect, and any finance charges accrued on any unpaid balance owed by Customer. In addition to these remedies, Customer may also be sanctioned by the terms stated in Section 4.C. above.
- Suspended Shipments. EV Connect reserves the right to suspend further shipments of goods if Customer is over thirty (30) days late in payment of an undisputed invoice. EV Connect reserves the right to terminate the order if Customer is over sixty (60) days late in payment of an undisputed invoice
- Unless specifically contracted with EV Connect, Customer shall be responsible for arranging for the installation and provisioning of the Charging Systems and for the costs thereof. At Customer’s request, EV Connect may provide the names and contact information of one or more installers of Charging Systems; provided that, in providing such information EV Connect makes no representation or warranty of any kind, nor does it undertake any liability, with respect to or regarding the quality of any installation or other services performed by any such installer. EXCEPT AS SPECIFICALLY AGREED TO IN WRITING, EV CONNECT IS NOT RESPONSIBLE FOR AND WILL NOT BE LIABLE FOR, THE QUALITY OF ANY INSTALLATION SERVICES OR ANY CLAIM IN ANY WAY RELATING TO OR RESULTING FROM SUCH SERVICES.
6. Warranties/Limitation of Liability
- Warranty. Unless expressly contracted with EV Connect, the Charging Station(s) is covered by the terms of the Charging Station’s manufacturer’s standard parts-only product Warranty (the “Warranty”), which will expire on one year from the date of installation. All applicable warranties with respect to the Charging Station are set forth in the manufacturer’s warranty, and are hereby incorporated by reference into these Terms.
- Post-Warranty Maintenance. Customer acknowledges and agrees that in order to obtain warranty and/or other maintenance services for the Charging Systems after expiration of the Warranty, Company must purchase extended warranties and/or maintenance agreements directly from EV Connect.
- Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 6, EV CONNECT MAKES NO WARRANTY WITH RESPECT TO THE PERFORMANCE OF THE CHARGING STATIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. EV CONNECT EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON- INFRINGEMENT OF THIRD PARTY RIGHTS BY THE CHARGING STATIONS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EV CONNECT DOES NOT WARRANT UNINTERRUPTED OR ERROR FREE OPERATION OF CHARGING STATIONS.
- Limitation of Liability.
- NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS, EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EV CONNECT BE LIABLE TO COMPANY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF THESE TERMS OR THE TRANSACTIONS CONTEMPLATED HEREUNDER, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY OR ITS AGENTS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- CUSTOMER’S SOLE REMEDY FOR ANY BREACH BY EV CONNECT OF ITS OBLIGATIONS OR WARRANTIES UNDER THESE TERMS SHALL BE LIMITED TO, AT EV CONNECT’S OPTION, REPAIR OR REPLACEMENT OF THOSE CHARGING STATIONS TO WHICH SUCH BREACH IS APPLICABLE OR REFUND BY EV CONNECT OF ALL OR A PART OF THE PURCHASE PRICE OF THE NON- CONFORMING CHARGING STATIONS.
- Warranty Exclusions. The Warranty set forth in these Terms is subject to certain exclusions as more fully set forth in the Warranty. CUSTOMER HAS BEEN INFORMED AND UNDERSTANDS THAT, IN THE EVENT ANY SUCH EXCLUSION BECOMES APPLICABLE, ALL REPRESENTATIONS AND WARRANTIES CONTAINED IN THESE TERMS SHALL IMMEDIATELY BECOME NULL AND VOID.
- Exclusive Remedies. THE REMEDIES CONTAINED IN SECTION 6 ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES AND ARE IN LIEU OF ANY OTHER RIGHTS OR REMEDIES COMPANY MAY HAVE AGAINST EV CONNECT WITH RESPECT TO NONCONFORMANCE OF THE CHARGING
7. Intellectual Property
- Restrictions on Use. Company shall not:
- create derivative works based on the Charging Systems or the SaaS Services (including mobile applications);
- copy, frame or mirror any part or content of the Charging Systems;
- reverse engineer any Charging Station, Charging Systems software, SaaS Services; or
- access the Charging Systems for any improper purpose whatsoever, including, without limitation, in order to (A) build a competitive product or service, or (B) copy any features, functions, interface, graphics or “look and feel” of the Charging Systems.
- Ownership of Intellectual Property. All right, title and interest in and to any intellectual property related in any way to the Charging Systems (including SaaS Services and mobile applications) is, and shall remain, the exclusive property of EV Connect. For these purposes, the term “intellectual property” shall mean, all of a party’s patents, patent applications, patent rights, copyrights, moral rights, algorithms, devices, application programming interfaces, databases, data collections, diagrams, inventions, methods and processes (whether or not patentable), know-how, trade secrets, trademarks, service marks and other brand identifiers, network configurations and architectures, proprietary information, protocols, schematics, specifications, software (in any form, including source code and executable code), techniques, interfaces, URLs, web sites, works of authorship, and all other forms of technology, in each case whether or not registered with a governmental entity or embodied in any tangible form and all rights and forms of protection of a similar nature to any of the foregoing or having equivalent effect anywhere in the world in any way arising prior to or during the term of these Terms. 7. General A. Attorneys’ Fees. If any action at law or in equity is necessary to enforce the terms of these Terms, the prevailing party shall be entitled to reasonable attorneys’ fees, costs and expenses in addition to any other relief to which the prevailing party is otherwise entitled.
- Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account strikes, shortages, riots, insurrection, fires, flood, storm, explosion, acts of God, war, governmental action, labor conditions, earthquakes, or any other cause which is beyond the reasonable control of such party.
- Waiver. The failure of either party to require performance by the other party of any provision hereof shall not affect such party’s full right to require such performance at any time thereafter, nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
- Severability. In the event that any provision of these Terms shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render these Terms unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted as to best accomplish the objectives of such provisions within the limits of applicable law or applicable court decisions.
- Assignment. The rights and liabilities of the parties hereto shall bind and inure to the benefit of their successors, executors or administrators, provided, however, that neither EV Connect nor Company may assign or delegate these Terms or any of its licenses, rights or duties under these Terms, whether by operation of law or otherwise, without the prior written consent of the other party in its reasonable discretion; provided, however, that Company and EV Connect shall each be entitled to assign these Terms to an affiliate or to its successor in interest by way of merger, acquisition of substantially all of the assets of assignor or any similar event (collectively, “Acquisition Transactions”); and provided further, however, that notwithstanding any Acquisition Transaction, Company shall not assign these Terms to any competitor of EV Connect without EV Connect’s prior written consent, in its sole discretion. Any attempted assignment in violation of this provision shall be void.
- Notices. Any notice, request, demand or other communication by the terms hereof required or permitted to be given by one part to the other shall be given in writing by email with confirmation of receipt, certified or registered mail, return receipt requested, fax or courier addressed to such other party or delivered to the address for each party set forth below their respective signatures, or at such other fax, email address or office address as may be given from time to time by either of the parties.
- Controlling Law. These Terms shall be governed in all respects by the laws of the State of California, exclusive of conflicts of law principles.
- Venue. The State and Federal courts located in Los Angeles County, California shall have exclusive jurisdiction and venue over any dispute arising out of or relating to these Terms. Each of the Parties submits to the jurisdiction and venue of these courts.
- Entire Agreement. These Terms and the attachments hereto constitute the entire agreement between the parties regarding its subject matter. It supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding such subject matter. These Terms shall not be modified unless done so in a writing signed by an authorized representative of each party.