This MASTER SITE AGREEMENT (this “Agreement”) is entered into between the party executing this Agreement in the section designated for execution by “CUSTOMER” (“Customer”) on a jointly executed (by Customer and EVPassport) Order Form substantially in the form of Exhibit A (the “Order Form”), and EVPASSPORT, INC., a Delaware corporation with its principal office located at 19 Morris Avenue, Brooklyn Navy Yard, Building 128, Brooklyn, NY 11205 (“EVPassport”), and is effective on the latest date set forth on the signature page below (the “Effective Date”). Customer and EVPassport are each sometimes referred to herein as a “Party” or collectively as the “Parties”.
A. Customer owns or manages the property identified on the Order Form (the “Property”)
B. EVPassport is in the business of providing electric vehicle charging services (the “Services”).
C. Customer desires to contract with EVPassport for the provision of Services pursuant to the terms of this Agreement with respect to individuals using Qualified Charging Stations located at the Property (“Users”) and Customer’s management of the Property.
2.1. Within the amount of time set forth as the “Deployment Period” in the Order Form, Customer will install the number of Qualified Charging Stations set forth the Order Form into mutually agreeable parking areas on the Property, which Qualified Charging Stations shall be used by Users for the purpose of receiving Services. Throughout the term, Customer shall also be granted access to software services associated with the Qualified Charging Stations as provided by EVPassport from time to time.
2.2. The Parties may, by mutual agreement, add additional Qualified Charging Stations during the Term pursuant to a written agreement executed by both parties.
2.3. As used herein, a “Qualified Charging Station” is a charging station approved by EVPassport for use with the Services. Notwithstanding anything to the contrary herein, EVPassport shall not be obligated to provide any Services to Customer or any User via any devices other than a Qualified Charging Station.
3.1. Prior to the provision of any Services by EVPassport, Customer shall authorize all work necessary to install any Qualified Charging Stations to be installed at the Property as specified by EVPassport, in EVPassport’s sole discretion (the “Installation Work”), including but not limited to performing any electrical service upgrades, installing conduit runs, running wiring, ensuring cellular coverage, installing necessary software and hardware, and other site work necessary to provide adequate power and connectivity to the location of each of the Qualified Charging Stations, in all cases at Customer’s expense and as approved by EVPassport. Customer shall be responsible for obtaining all necessary permits with respect to the installation, maintenance and use of any Qualified Charging Station installed at the Property. Customer shall provide access to the Property to EVPassport as required in order to complete the Installation Work, and shall cooperate with EVPassport in good faith toward the completion of the Installation Work. Notwithstanding anything to the contrary herein, the Qualified Charging Stations and all hardware and software associated therewith, and any Intellectual Property Rights whatsoever owned by EVPassport and used by EVPassport in connection with this Agreement shall remain the property of EVPassport, and Customer is only granted a license to use such Qualified Charging Stations, software, hardware and Intellectual Property Rights as contemplated herein during the Term.
3.2. EVPassport makes no representations with respect to the suitability, quality, qualifications, safety, permitting, performance or work of any third party with respect to Installation Work, and Customer acknowledges that its sole remedy with respect to damages arising from such Installation Work shall be against such third party, except where such damages arise from the fraud, gross negligence or willful misconduct of EVPassport.
4.1. In the event Customer knows of or becomes aware of any malfunctioning Qualified Charging Station at the Property, Customer shall promptly notify EVPassport of such malfunction in writing. Customer shall reasonably cooperate with EVPassport for the remote diagnosis of issues with such Qualified Charging Station.
4.2. In no event shall EVPassport be liable for repairs or damages resulting from any malfunctions or damages with respect to any Qualified Charging Station at the Property which arise from abuse or vandalism by any third parties (including but not limited to persons or animals), accidents caused by automobiles or third parties (including but not limited to persons or animals), alterations of any type not expressly authorized by EVPassport, negligence of Customer or any third party, acts of God, or any usage whatsoever of any Qualified Charging Station that is in breach of the terms of this Agreement, including but not limited to unauthorized usage of any Qualified Charging Station by any User.
4.3. Absent EVPassport’s prior written permission, Customer shall not directly or indirectly service, repair, modify or adjust any Qualified Charging Station.
4.4. During the Term, Customer shall ensure, and/or shall permit EVPassport to take all actions required to ensure, that Customer has all necessary permits to perform its obligations under this Agreement. Customer shall reasonably cooperate with EVPassport to ensure that EVPassport and its employees, agents, and contractors are permitted to inspect, service and maintain the Qualified Charging Stations at the Property. Customer agrees that it shall not interfere with, or cause its employees or agents to interfere with, EVPassport in conjunction with the service, maintenance or replacement of such Qualified Charging Stations, or in any other way interfere with EVPassport’s responsibilities under this Agreement.
5.1. Customer may terminate this Agreement as to any Services upon material breach by EVPassport of any of the terms of this Agreement, where such breach remains uncured following 90 days prior written notice of such breach provided by Customer to EVPassport, or where such breach cannot reasonably be cured within such 90 day period.
5.2. EVPassport may terminate this Agreement as to any Services by providing one hundred eighty (180) days prior written notice to Customer, or, upon material breach by Customer of any of the terms of this Agreement, where such breach remains uncured following 30 days prior written notice of such breach provided by EVPassport to Customer, or where such breach cannot be cured within such 30 day period in EVPassport’s reasonable judgement.
5.3. Customer hereby grants EVPassport the right, upon termination of this Agreement, to enter the Property for the purpose of removing any EVPassport owned equipment or property. Upon termination of this Agreement with respect to any Qualified Charging Station, EVPassport will no longer be bound to deliver any support, maintenance, or Services with respect to such Qualified Charging Station.
5.4. The provisions of Sections 5, 7, 10, 11, 12, 13, 14, 15 and 16 shall survive any termination or expiration of this Agreement. Termination of this Agreement shall not relieve any Party of any obligations previously having accrued hereunder for the payment of any fees or other monetary obligations.
6.1. Users shall be permitted to access and use the Services via the EVPassport mobile experience as updated by EVPassport from time to time, and usage of all Services by any User shall be subject to the terms and conditions of such usage as set forth online at EVPassport’s website (the “User Terms”). EVPassport reserves the right, in its sole discretion, to suspend provision of any Services with respect to a User whose usage with EVPassport is violation of any of the User Terms.
6.2. Customer agrees to provide EVPassport or its service partners with access, during normal business hours (9:00 a.m. to 5:00 p.m., Monday through Friday) to all Qualified Charging Stations and any electrical equipment utilized by any Qualified Charging Station in order to perform reasonably necessary maintenance work.
6.3. Customer shall designate in writing a Customer manager who shall act as Customer’s sole liaison with EVPassport for those matters covered by this Agreement. Customer may update the designated Customer manager at any time via written notice to EVPassport.
6.4. Customer agrees, at all times during the Term, to ensure that the Qualified Charging Stations at the Property are accessible and that the parking areas at the Property are reasonably free of debris and rubbish and in good repair and condition.
6.5. Customer shall ensure adequate power supply is available and delivered to the Qualified Charging Stations at the Property. If power supply to any Qualified Charging Station is disrupted, Customer shall use commercially reasonable best efforts to restore power in a timely manner, and shall inform EVPassport if such disruption exceeds seven (7) days. If access to any Qualified Charging Station is blocked at the Property for a period of more than 24 hours, Customer shall use commercially reasonable best efforts to remove such blockage, and shall notify EVPassport of such blockage. Under no circumstances will EVPassport be liable for damages arising from the failure of Customer to maintain power supply and/or access to Qualified Charging Stations, and Customer shall indemnify and hold EVPassport harmless with respect to all such damages.
7.1. EVPassport shall indemnify, defend and hold harmless Customer, its affiliates, their officers, directors, employees, agents and licensors, against all losses, claims, actions, demands, suits, judgements, expenses, damages and costs, including reasonable attorneys’ fees and settlement expenses (“collectively “Losses”) that may arise directly or indirectly in connection with or related to any third party claim to the extent that they are based upon (a) the fraud, gross negligence or willful misconduct of EVPassport, or (b) a material breach of this Agreement by EVPassport, its officers, directors, employees, or agents, except to the extent that such Losses result from Customer’s fraud, gross negligence, material breach of this Agreement or willful misconduct.
7.2. Customer shall indemnify, defend and hold harmless EVPassport, its affiliates, their officers, directors, employees, agents and licensors, against all Losses that may arise directly or indirectly in connection with or related to any third party claim to the extent that they are arise from (a) the fraud, gross negligence or willful misconduct of Customer, (b) a material breach of this Agreement by Customer, its officers, directors, employees, or agents, (c) the usage by any User of any Qualified Charging Station at the Property, or (d) the installation (including, but not limited to, any Installation Work), maintenance or removal of any Qualified Charging Station at the Property, except to the extent that such Losses result from EVPassport’s fraud, gross negligence, material breach of this Agreement or willful misconduct.
8.1. During the Term, Customer will not permit any party other than EVPassport to provide, maintain, service or operate any electric vehicle charging stations or other equipment which could be reasonably expected to compete with the Services provided by EVPassport at the Property.
8.2. Each Party acknowledges that the restrictions in this Section 9 are reasonable and necessary to protect the EVPassport’s legitimate business interest. Each Party acknowledges that any breach of any of the provisions of this Section 9 may result in irreparable injury to EVPassport for which money damages could not adequately compensate. If there is a breach, then the injured Party shall be entitled, in addition to all other rights and remedies which it may have at law or in equity, to have a decree to seek specific performance or an injunction issued by any competent court, requiring the breach to be cured or enjoining all parties involved from continuing the breach. The existence of any claim or cause of action that a Party or any other party may have against the other shall not constitute a defense or bar to the enforcement of any of the provisions of this Section 9.
9.1. EVPassport represents and warrants to Customer that it has the appropriate legal authority to execute this Agreement, that it has all requisite licenses and permits to perform pursuant to this Agreement, that it is not bound by any other agreement which precludes it from complying with the terms and conditions contained herein, and that it will perform under this Agreement in compliance with any applicable laws, rules, regulations or ordinances.
9.2. Customer represents and warrants to EVPassport that it has the appropriate legal authority to execute this Agreement, that it has all requisite licenses and permits to perform pursuant to this Agreement, that it is not bound by any other agreement which precludes it from complying with the terms and conditions contained herein, and that it will perform under this Agreement in compliance with any applicable laws, rules, regulations or ordinances.
12.1. EXCEPT AS EXPRESSLY PROVIDED HEREIN OR PROHIBITED BY APPLICABLE LAW, EACH PARTY EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY MADE, OR THAT MAY HAVE BEEN MADE, IN CONNECTION WITH THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, UNINTERRUPTED SERVICE (AS TO ANY SERVICES CONTEMPLATED HEREIN, INCLUDING BUT NOT LIMITED TO SOFTWARE OR HARDWARE BASED SERVICES), AND ANY WARRANTY ARISING OUT OF A COURSE OF PERFORMANCE, DEALING OR TRADE USAGE.
12.2. EXCEPT AS PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL A PARTY TO THIS AGREEMENT BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION FOR THE LOSS OF DATA, BUSINESS INTERRUPTION, OR LOST PROFITS, THAT IN ANY WAY ARISE OUT OF OR RELATE TO THIS AGREEMENT, REGARDLESS OF THE THEORY OF RELIEF, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED TO THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF ANY CLAIM OR FINDING THAT A REMEDY SUFFERS A FAILURE OF ITS ESSENTIAL PURPOSE; AND IN NO EVENT SHALL EVPASSPORT BE LIABLE TO CUSTOMER FOR ANY AMOUNT IN EXCESS OF $100,000.00. NOTWITHSTANDING THE FOREGOING, THIS SECTION 13 SHALL NOT APPLY WITH RESPECT TO ANY DAMAGES WHICH ARISE OUT OF OR RELATE TO A PARTY’S FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT.
13.1. Nothing in this Agreement shall constitute or be deemed to constitute a partnership or joint venture between the Parties or constitute or be deemed to constitute any Party the agent or employee of the other Party for any purpose whatsoever, and neither Party shall have authority or power to bind the other or to contract in the name of, or create a liability against, the other in any way or for any purpose.
13.2. The provisions of this Agreement are for the exclusive benefit of EVPassport and Customer only, and no other party shall have any right or claim against either Party or be entitled to enforce any provisions hereunder against any Party.
13.3. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of the EVPassport in the course of performing the Services (collectively, the “Deliverables”) shall be owned by EVPassport. EVPassport hereby grants Customer a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, non-transferable, non-sublicensable, fully paid-up, royalty-free and perpetual basis during the Term to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services. Notwithstanding the foregoing or anything else to the contrary, nothing herein shall prevent or restrict EVPassport’s right to collect, own, aggregate and utilize any data whatsoever which is collected by EVPassport in connection with the installation, maintenance, and utilization (whether by Customer or by Users) of Qualified Charging Stations at the Property.