EVPassport Master Site Agreement (US)
THIS EVPASSPORT MASTER SITE AGREEMENT (US) ([TOGETHER WITH THE EVPASSPORT DOCUMENTS REFERENCED HEREIN,] THIS “MASTER SITE AGREEMENT”) ARE FOR EVPASSPORT, INC., A DELAWARE CORPORATION (“EVPASSPORT”) WITH ITS PRINCIPAL OFFICE LOCATED AT 1629B ELECTRIC AVE, VENICE, CA 90291 AND APPLY TO THE SALE OF HARDWARE (AS DEFINED BELOW), PROVISION OF ACCESS TO ANDUSE OF THE EVPASSPORT SOFTWARE (AS DEFINED BELOW) AND RELATED SERVICES PURSUANT TO THE ORDER FORM OR OTHER DOCUMENTATION INTO WHICH THIS MASTER SITE AGREEMENT IS INCORPORATED BY REFERENCE (THE “ORDER FORM”) SIGNED OR OTHERWISE AGREED TO BY CUSTOMER (AS DEFINED IN THE ORDER FORM). CAPITALIZED TERMS USED,BUT NOT DEFINED, HEREIN WILL HAVE THE MEANINGS SET FORTH IN THE ORDER FORM.ACCEPTANCE OF THIS MASTER SITE AGREEMENT IS REQUIRED AS A CONDITION TO ORDERING THE HARDWARE AND ACCESSING AND USING THE EVPASSPORT SOFTWARE. Customer and EVPassport are each sometimes referred to herein as a “Party” or collectively as the “Parties”.
EVPassport has developed an electric vehicle charging and management system that is comprised of the Hardware, theFirmware and the EVPassport Cloud Platform to be used in connection withEVPassport’s provision of electric vehicle charging services (the “ChargingManagement System” and such electric vehicle charging services, the “ChargingServices”). Customer owns or manages the property identified on the Order Form (the “Property”). With respect to individuals using Qualified Charging Stations (as defined below) located at the Property to receive Charging Services (“Users”)and Customer’s management of the Property, Customer wishes to purchase the hardware components of the Charging Management System and license the software components of the Charging Management System from EVPassport, and EVPassport wishes to sell the hardware components of the Charging Management System and license related software to Customer, pursuant to the terms of this Agreement.
1.1 Purchase of Hardware.
(a) Inconsideration of payment of the amounts set forth on the Order Form, EVPassport hereby sells to Customer, and Customer hereby purchases from EVPassport, the charging stations approved by EVPassport for use with the Charging Services asset forth on the Order Form (“Qualified Charging Stations”) and related hardware for Customer’s use in connection with the Charging Management System set forth on the Order Form (together with the Qualified Charging Stations, but in each case excluding any Firmware (as defined below) thereon, the “Hardware”).
(b) During the Term, the Parties may add additional Hardware pursuant to a new Order Form executed by both Parties that expressly references the initial Order Form relating to the Property.
(c) Customer must purchase a subscription to the EVPassport Cloud Platform for eachQualified Charging Station installed at the Property. Notwithstanding anything to the contrary herein, EVPassport will not be obligated to provide anyCharging Services to Customer or any User via any devices other than aQualified Charging Station for which a subscription to the EVPassport CloudPlatform has been purchased. In the case of a Qualified Charging Station(s) installed following the Start Date, Customer will pay to EVPassport a prorated portion of the applicable subscription fee for the EVPassport Cloud Platform for the remainder of the Initial Term or applicable Renewal Term, as applicable, in which such Qualified ChargingStation(s) is/are installed. For Renewal Terms, the subscription fees will be paid as set forth in the Order Form.
(a) Within the Deployment Period set forth in the Order Form, Customer will install the Hardware set forth the Order Form into mutually agreeable parking areas on the Property.Customer will be responsible for arranging for the installation and provisioning of the Hardware and for all costs thereof. Prior to the provision of any Services (as defined below) by EVPassport, Customer will authorize all work necessary to install any Hardware at the Property as specified byEVPassport, in EVPassport’s sole discretion (the “Installation Work”), including performing any electrical service upgrades, installing conduit runs, running wiring, ensuring cellular coverage, installing necessary software and hardware, and other site work necessary toprovide adequate power and connectivity to the location of each of theQualified Charging Stations, in all cases at Customer’s expense and as approved by EVPassport. Customer will be responsible for obtaining all necessary permits with respect to the Installation Work and the maintenance and use of any Hardware installed at the Property.
(b) At Customer’s request, EVPassport may provide the names and contact information of one or more installers of Hardware; provided that, 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 or otherwise, and Customer acknowledges that its sole remedy with respect to damages arising from such Installation Work will be against such third party, except where such damages arise from the fraud, gross negligence or willful misconduct of EVPassport.
(c) Customer will provide access to the Property to EVPassport as required in order to complete the Installation Work, and will cooperate with EVPassport in good faith toward the completion of the Installation Work.
(a) In the event Customer knows of or becomes aware of any malfunctioning Hardware at the Property, Customer will promptly notify EVPassport in writing of such malfunction. Customer will reasonably cooperate with EVPassport with its remote diagnosis of issues with such Hardware.
(b) In no event will EVPassport be liable for repairs or damages resulting from any malfunctions or damages with respect to any Hardware at the Property which arise from abuse or vandalism by any third parties(including persons or animals), accidents caused by automobiles or third parties (including persons or animals), alterations of any type not expressly authorized by EVPassport, negligence of Customer or any third party, acts ofGod, or any usage whatsoever of any Hardware that is in breach of thisAgreement, including to unauthorized usage of any Hardware by Customer or anyUser.
(c) Absent EVPassport’s prior written consent, Customer will not directly or indirectly service, repair, modify or adjust any Hardware.
2.1 Firmware.Subject to the terms and conditions of this Agreement, EVPassport hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable, perpetual, royalty-free license to use only at the Property the software provided by EVPassport as an inseparable part of the Hardware (the “Firmware”)and any updates and upgrades to the Firmware provided by EVPassport from time to time pursuant to this Agreement for the purpose of using the ChargingManagement System at the Property.
2.2 EVPassport Cloud Platform. EVPassport will make available the specific modules of EVPassport’s software-as-a-service offering for use with theCharging Management System, including the web portal that Customer uses to access and use the same (the “EVPassport Cloud Platform”, and together with the Firmware, the “EVPassport Software”) to Customer via theInternet pursuant to this Agreement, as set forth on the Order Form. Subject to the terms and conditions of this Agreement, EVPassport hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the modules of the EVPassport Cloud Platform set forth on the Order Form during the Term for the purpose of using the Charing Management System at theProperty.
(a) Customer will not provide access to the EVPassport Software to any person who is not an employee or contractor of Customer. Customer remains solely liable for any acts or omissions of such employees and contractors in violation of this Agreement.
(b) Except as expressly permitted hereunder Customer will not, nor will Customer permit or authorize any third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of any of the EVPassport Software; (ii) modify, translate or create derivative works based on any of the EVPassport Software; (iii)copy, rent, lease, distribute, pledge, assign or otherwise transfer or allow any lien, security interest or other encumbrance on any of the EVPassport Software;(iv) use any of the EVPassport for timesharing or service bureau purposes or otherwise for the benefit of a third party; (v) hack, manipulate, interfere with or disrupt the integrity or performance of or otherwise attempt to gain unauthorized access to any of the EVPassport or their related systems, hardware or networks or any content or technology incorporated in any of the foregoing ;or (vi) remove or obscure any proprietary notices or labels of EVPassport or its suppliers on any of the EVPassport Software.
2.4 Customer Data. Customer will be solely responsible for the accuracy, quality, content, and legality of the data collected from Customer (including through the EVPassport Cloud Platform) and/or otherwise provided by or on behalf of Customer to EVPassport concerningCustomer’s operation of the Hardware (collectively, “Customer Data”). As between the Parties, Customer will retain all right, title, and interest in and to the Customer Data. Customer hereby grants to EVPassport a non-exclusive, worldwide, royalty-free, fully paid-up, non-sublicensable (except to EVPassport’s contractors and service providers), non-transferable (subject to Section 13.9) right and license to copy, display, create derivative works of and otherwise use the Customer Data (a) to perform its obligations under this Agreement, (b) to internally develop and improve its products and services, and (c) to create de-identified data from the Customer Data (the “De-Identified Data”). For the avoidance d, the Customer Data does not include the De-Identified Data. Customerrepresents, warrants, and covenants that Customer has andwill have the legal authority and all rights necessary (i) toprovide the Customer Data to EVPassport and (ii) for EVPassport to fulfillits obligations and exercise its rights with respect to the Customer Data asset forth this Agreement.
2.5 Reservation ofRights. Customer acknowledges and agrees that, as between the Parties, EVPassport retains all rights, title, and interest in and to the EVPassport Software, all copies or parts thereof (by whomever produced) and all intellectual property rights therein. EVPassport grants no, and reserves any and all, rights other than the rights expressly granted to Customer under this Agreement with respect to the EVPassportSoftware. Customer will not have or obtain any right, title or interest in or to the EVPassport Software (including any licenses or other rights, either express or implied, under any intellectual property rights or proprietary rights of EVPassport or any third party), other than the limited right to use the foregoing as expressly provided and not prohibited in this Agreement.
2.6 Restrictions.Except as otherwise specifically permitted in this Agreement or otherwise authorized in writing by EVPassport, Customer may not: (a) remove, obscure or deface any proprietary rights or other notices on the Charging ManagementSystem; (b) make any alterations or additions to the Charging Management System without the prior written consent of EVPassport; (c) service or repair any of the Charging Management System except pursuant to EVPassport’s express prior instructions; or (d) publish or make public any performance results from theCharging Management System without EVPassport’s prior written consent.
2.7 Monitoring and Statistical Information. EVPassport may monitor usage of the Charging Management System and compile statistical and performance information related to the operation of and provision of access to the Charging Management System for EVPassport’s internal use and other lawful purposes.
2.8 Feedback.Customer may from time to time provide suggestions, comments, and feedback toEVPassport with respect to the Charging Management System, including usability, bug reports, test results, and proposed additional features (“Feedback”).Customer hereby grants EVPassport a royalty-free, fully paid-up, worldwide ,transferable, sublicensable (directly and indirectly through multiple tiers of distribution), irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback in whole or in part; and (b) use the Feedback in whole or in part, including the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback in whole or in part.
3. Exclusivity. 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. Customer acknowledges that the restrictions in this Section 3are reasonable and necessary to protect EVPassport’s legitimate business interest.Customer acknowledges that any breach of any of the provisions of this Section 3may result in irreparable injury to EVPassport for which money damages could not adequately compensate. If there is a breach, then EVPassport will be entitled, in addition to all other rights and remedies which it may have at law or in equity, to specific performance or an injunction issued by any competent court, requiring the breach to be cured or enjoining Customer from continuing the breach. The existence of any claim or cause of action that EVPassport may have against Customer will not constitute a defense or bar to the enforcement of any of the provisions of this Section 3.
4. Term; Termination.
4.1 Term. The initial term of this Agreement commences on the Effective Date and will continue for the Initial Term set forth in the Order Form (the “Initial Term”),unless terminated earlier pursuant to the terms hereof. Thereafter, thisAgreement will automatically renew for additional one (1) year periods (each, a“Renewal Term”, and together with the Initial Term, the “Term”),unless either Party provides the other Party with written notice of non-renewal at least ninety (90) days prior to the expiration of the then-current term.EVPassport may, from time to time, amend this Master Site Agreement, and will post such amended Standard Terms on EVPassport’s website at [www.evpassport.com],noting the date of the last such amendment. Upon the commencement of any RenewalTerm, this Agreement will renew on the then-current version of this Master SiteAgreement.
(a) Customer may terminate this Agreement as to any or all Services if EVPassport (i)becomes insolvent or unable to meet its obligations as they become due or files or has filed against it a petition under the bankruptcy laws; (ii) ceases to function as a going concern or to conduct its operations in the normal course of business; (iii) assigns or transfers, either voluntarily or by operation of law, any rights or obligations under this Agreement except as set forth inSection 13.9; or (iv) materially breaches any of the terms of this Agreement, where such breach remains uncured following 90 days prior written notice of such breach provided by Customer toEVPassport, or where such breach cannot reasonably be cured within such 90-day period.
(b) EVPassport may terminate this Agreement as to any or all Services if Customer (i) becomes insolvent or unable to meet its obligations as they become due or files or has filed against it a petition under the bankruptcy laws; (ii) ceases to function as a going concern or to conduct its operations in the normal course of business; (iii) assigns or transfers, either voluntarily or by operation of law, any rights or obligations under this Agreement except as set forth inSection 13.9; (iv)materially breaches any of the terms of this Agreement, where such breach remains uncured following 30 days prior written notice of such breach provided by EVPassport toCustomer, or where such breach cannot be cured within such 30-day period inEVPassport’s reasonable judgement; or (v) for any reason or no reason by providing one hundred eighty (180) days prior written notice to Customer.
(c) Upon expiration or termination of this Agreement as to any or all Services, (i) 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, exporting data and log files stored on the Hardware, and/or decommissioning the Hardware link to the EVPassport Cloud Platform; (ii)Customer will pay in full for the use of the Charging Management System up to and including the last day on which the Charging Management System is provided;(iii) except as expressly stated herein, all rights granted hereunder and all obligations of EVPassport to provide the EVPassport Cloud Platform and updates to the Firmware will immediately termination, and Customer will (A) cease use of the EVPassport Cloud Platform and (B) return or destroy all other copies or other embodiments of EVPassport’s Confidential Information; and (iv) with respect to any Hardware or related Services terminated hereunder, EVPassport will no longer be bound to deliver any support, maintenance, or other Services with respect to such Hardware.
(d) The [provisions of Sections 1.3(b), 2.1, 2.3, 2.5, 2.6, 2.7, 2.8, 4.2(c), 5, 9, 10.3, 11, 12, and 13] will survive any termination or expiration of this Agreement. Expiration or termination of this Agreement will not relieve any Party of any obligations previously having accrued here under for the payment of any fees or other monetary obligations.
5.1 Payment. In consideration of the purchase of theHardware, the license of the Firmware in Section 2.1, and the rights to the EVPassport Cloud Platform set forth in Section 2.2, Customer will pay EVPassport the amounts set forth in the Order Form by the dates indicated therein. All amounts will be due and payable in U.S. Dollars and accordance with the terms set forth in theOrder Form. Customer will remit payment hereunder to EVPassport, at Customer’s option (a) via wire or ACH transfer to an account designated by EVPassport in writing from time to time or (b) by check, made out to EVPassport, Inc.
5.2 Payment Terms. If no payment terms are specified in the OrderForm, all payments are due and payable by Customer within thirty (30) days after the delivery of an invoice from EVPassport. Annual maintenance fees for the Hardware and Firmware and annual subscription fees for use of the EVPassport Cloud Platform will be due and payable thirty (30) days prior to the start of the Initial Term (or annual portion thereof if longer than one year) or applicableRenewal Term. If Customer fails to make any payment when due, Customer agrees to pay interest on delinquent amounts at the rate of 1.5% per month or the maximum amount permitted by law, whichever is lower until such delinquent amounts are paid in full.
5.3 Transaction Fee for Charging Services . Customer will pay to EVPassport a transaction fee in the amount set forth on the Order Form for qualified Charging Services sessions using the Hardware at the Property. This transaction fee will be generated from gross amounts for Charging Services. Subject to Section 5.2, EVPassport will invoice Customer for these fees as set forth on the Order Form during theTerm, and Customer will pay the same in accordance with this Section 5.
5.4 Revenue Share for LCFS Credits.
5.5 Tax. All amounts payable by Customer to EVPassport are exclusive of any sales, use and other taxes or duties, however designated, including withholding taxes, royalties ,know how payments, customs, privilege, excise, sales, use, value-added and property taxes (collectively “Taxes”). Customer will be solely responsible for payment of any Taxes, except for those taxes based on the income of EVPassport. Customer will not withhold any Taxes from any amounts dueEVPassport. Customer will be responsible for the payment of all Taxes incurred in connection with installation, maintenance and use of any Hardware at theProperty. Customer agrees to indemnify and hold EVPassport harmless with respect to claims arising in connection with any such Taxes. The Taxes other than sales tax will vary based on jurisdiction and are subject to change.
6. Delivery . Unless otherwise agreed by the Parties in writing, all shipments will be shipped by EVPassportFCA Incoterms 2020 EVPassport’s warehouse . Customer willbe responsible for all costs of shipping, transportation, insurance,warehousing, and other charges and costs associated with shipment of theHardware to Customer. EVPassport will use commercially reasonable efforts todeliver Hardware ordered by Customer on the scheduled delivery date, however allshipping dates are approximate and are based upon prompt receipt of allnecessary information from Customer. In no event will EVPassport be liable forany costs related to delay in delivery of the Hardware. All claims fornon-conforming shipments must be made in writing to EVPassport within twenty(20) days of the passing of risk of loss and damage, as described above. Anyclaims not made within such period will be deemed waived and released.
7.2 Customer will provide EVPassport (including its authorized representatives and service providers) with access, during normal business hours (9:00 a.m. to 5:00 p.m. local time, Monday through Friday) to all Hardware and any electrical, network, or other equipment utilized by any Hardware for the purpose of inspecting, upgrading, repairing, and testing the ChargingManagement System, affixing notices thereto, and otherwise exercising any of its rights and responsibilities under this Agreement. Customer will cooperate reasonably to facilitate EVPassport’s delivery and installation of the Hardware and performance of related Services under this Agreement, including complying with any installation requirements provided by EVPassport. Customer agrees that it will not interfere with, or cause its employees or agents to interfere with,EVPassport in conjunction with the service, maintenance or replacement ofHardware, or in any other way interfere with EVPassport’s performance of its responsibilities under this Agreement.
7.3 Customer will designate in writing a Customer manager who will 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.
7.4 During the Term, Customer will ensure, and/or will permit EVPassport to take all actions required to ensure, that Customer has all necessary permits to perform its obligations under this Agreement.
7.5 Customer agrees, at all times during the Term, to ensure that the Hardware at the Property is accessible by Users and EVPassport and that the parking areas at the Property are reasonably free of debris and rubbish and in good repair and condition.
7.6 Customer is responsible for the preparation of theProperty to allow installation and proper functioning of the ChargingManagement System, including as may be specified in installation requirements provided by EVPassport from time to time. Customer will ensure adequate power supply is available and delivered to the Qualified Charging Stations at theProperty. If power supply to any Qualified Charging Station is disrupted,Customer will use commercially reasonable best efforts to restore power in a timely manner, and will 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 twenty-four (24) hours, Customer will use commercially reasonable best efforts to remove such blockage, and will notifyEVPassport 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 will indemnify and hold EVPassport harmless with respect to all such damages.
8. EVPassport Obligations.
8.1 EVPassportCloud Platform. EVPassport will use commercially reasonable efforts to provide the EVPassport Cloud Platform in a manner that minimizes errors and interruptions in accessing the EVPassportCloud Platform. EVPassport will provide second-tier technical support to Customer for issues and questions arising from the operation of theEVPassport Cloud Platform. EVPassport will implement and maintain reasonable administrative, physical and technical safeguards which attempt to prevent any collection, use or disclosure of, or access to Customer Data that thisAgreement does not expressly authorize.
8.2 Additional Services. From time to time, EVPassport may agree to provide implementation, integration, consulting and other services to Customer (“Additional Services”, and together with the ChargingServices, the “Services”) described in an Order Form. Such Services will be provided in accordance with the provisions of this Agreement and the applicable Order Form. The Order Form will contain a description of the tasks to be performed, a schedule of payments and payment terms and any additional terms and conditions as the Parties may wish to include with respect to suchAdditional Services. EVPassport will perform the Additional Services in a professional and workmanlike manner. EVPassport’s performance of the AdditionalServices is dependent in part on Customer’s actions. Accordingly, Customer will use reasonable efforts to provide EVPassport with the items and assistance necessary for EVPassport to complete the Additional Services. Any dates or times relevant to performance by EVPassport hereunder will be appropriately and equitably extended to account for any delays or change in assumptions due toCustomer.
9.1 Definition. “Confidential Information”means, subject to the exceptions set forth in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by either Party (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the otherParty (the “Receiving Party”); provided, however, that information related to a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services will be deemed Confidential Information of theDisclosing Party even if not so marked or identified. EVPassport’s ConfidentialInformation includes the EVPassport Software and pricing set forth on the OrderForm. Customer’s Confidential Information includes the Customer Data.Information and data will not be deemed Confidential Information hereunder if such information: (a) is known to the Receiving Party prior to receipt from theDisclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known(independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of thisAgreement by the Receiving Party; or (d) is independently developed by theReceiving Party without reference to or use of any Confidential Information of the Disclosing Party.
9.2 Use andDisclosure of Confidential Information. The Receiving Party acknowledges that it will have access to the Disclosing Party’s Confidential Information. The ReceivingParty will not (a) use any such Confidential Information in any way, for its own account or the account of any third party, except for the exercise of its rights and performance of its obligations under this Agreement, or (b) disclose any such Confidential Information to any party, other than furnishing suchConfidential Information to (i) its employees and consultants who are required to have access to the Confidential Information in connection with the exercise of Receiving Party’s rights and performance of its obligations under thisAgreement; and (ii) professional advisers (e.g., lawyers and accountants); provided, however, that any and all such employees, consultants, and professional advisers are bound by written agreements or, in the case of professional advisers, ethical duties, to treat, hold and maintain suchConfidential Information in accordance with the terms and conditions of thisSection 9. The Receiving Party will not allow any unauthorized person access to Disclosing Party’s ConfidentialInformation, and Receiving Party will take all action reasonably necessary to protect the confidentiality of such Confidential Information, including implementing and enforcing procedures to minimize the possibility of unauthorized use or copying of such Confidential Information.
9.3 DisclosuresRequired by Law. If ReceivingParty is required by any law, rule, or regulation to make any disclosure of any of Disclosing Party’s Confidential Information, by subpoena, judicial, or administrative order or otherwise, the Receiving Party will first give written notice of such requirement to the Disclosing Party, and will permit theDisclosing Party to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to the Disclosing Party in seeking to obtain such protection.
9.4 Termination andStop Usage. In the event of termination or expiration of this Agreement, the Receiving Party will: (a)cease using the Confidential Information of the Disclosing Party and (b) if requested to do so in writing, either return it to the Disclosing Party or destroy it along with all copies, notes or extracts thereof, and certify to its destruction within fifteen (15) days of receipt of such written notice.
9.5 Terms ofAgreement. Neither Party will disclose any of the terms of this Agreement to any third party without the prior written consent of the other Party. Notwithstanding the foregoing, eitherParty may disclose such terms as are required to be disclosed: (a) to (i) its accountants and advisors who have a “need-to-know” solely for the purpose of providing services to such Party or (ii) existing and potential investors, lenders and acquirers and the accountants and advisors of any of the foregoing; provided, however, that any such recipient under either of the foregoing clauses (i) and(ii) is bound by a written agreement (or in the case of attorneys or other professional advisors, formal ethical duties) requiring such recipients to treat, hold and maintain the terms of this Agreement on a confidential basis in accordance with the terms and conditions of this Section 9; or (b) in order to comply with an applicable judicial process, if in the reasonable opinion of such Party’s counsel, such disclosure is necessary for such compliance, provided that suchParty will notify the other Party of such Party’s intent to make any such disclosure sufficiently prior to making such disclosure so as to allow such other Party adequate time to review and comment on such disclosure and further to take whatever action it may deem appropriate to protect the confidentiality of the information to be disclosed.
9.6 Remedies. Each Party acknowledges that any breach of this Section 9 may cause irreparable harm and injury to the other Party for which there is no adequate remedy at law. In addition to all other remedies available under this Agreement, at law or inequity, each Party further agrees that the other Party will be entitled to seek injunctive relief in the event such Party breaches this Section 9.
10. Representations & Warranties; Hardware Warranty.
10.1 Mutual. Each Party represents and warrants to the other Party that: (a) it is an entity duly organized, validly existing and in good standing under its state of incorporation; (b) it has the right and authority to enter into this Agreement, and to fully perform its obligations hereunder; (c) it has obtained all necessary corporate approvals for the execution and delivery of this Agreement, the performance of its obligations hereunder, and the consummation of the transactions contemplated hereby; (d) this Agreement is a legal and valid obligation binding upon it and enforceable in accordance with its terms; and (e) it will perform its obligations under this Agreement in compliance with applicable laws, rules, regulations, and ordinances.
(a) Limited Warranty.Unless Customer purchases from EVPassport an extended warranty for theHardware, EVPassport represents and warrants to Customer that, for a period of two (2) years from the Start Date the Hardware will [perform in all material respects in accordance with any user manuals and operator instructions provided by EVPassport to Customer in conjunction with the Hardware under normal use];provided that the foregoing warranty does not apply (i) to any unauthorized installation, use, or modification of the Hardware by or on behalf of Customer or if Customer does not comply with the installation requirements provided byEVPassport, (ii) as a result of the occurrence of any of the event specified inSection 1.3(b)above. In the event Customer reports a defect to EVPassport in writing within such warranty period, EVPassport will, at its option, provide one of the following two (2) remedies to whatever extent it will deem necessary to satisfy a proper claim under this limited warranty:
(i) Elect to repair or facilitate the repair of any defective parts within a reasonable period of time, free of any charge for the necessary parts and labor to complete the repair and restore the Hardware to its proper operating condition.Replacement may constitute, at EVPassport’s option, a new, refurbished or functionally equivalent item.
(ii) Replace the defective Hardware with a direct replacement or with similar Hardware deemed by EVPassport to perform substantially the same function as the originalHardware.
(b) Extended Warranty. Customer acknowledges and agrees that in order to obtain warranty and/or other maintenance services for the Hardware after expiration of the limited warranty set forth in Section 10.2(a), Customer must purchase extended warranties and/or maintenance agreements directly from EVPassport. If Customer purchases from EVPassport an extended warranty on any Hardware, the price, length, and terms and conditions of such warranty will be set forth in the Order Form and Customer will pay related fees in accordance with Section 5 above.
10.3 Disclaimer.EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, EVPASSPORT IS PROVIDING THE CHARGING MANAGEMENT SYSTEM “AS IS” AND “WHERE IS”, WITHOUT WARRANTY OF ANY KIND, AND EVPASSPORT MAKES NO REPRESENTATIONS OR WARRANTIES OFANY KIND, WHETHER EXPRESS, IMPLIED, OR ARISING BY CUSTOM OR TRADE USAGE, WITH RESPECT TO THE CHARGING MANAGEMENT SYSTEM OR ITS USE OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT INCLUDING (1) AS TO THE QUALITY OR PERFORMANCE OF THE CHARGING MANAGEMENT SYSTEM, OR (2) ANY WARRANTY OF MERCHANTABILITY, TITLE,NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. EVPASSPORT IS NOT RESPONSIBLE FOR AND WILL NOT BE LIABLE FOR, THE QUALITY OF ANY THIRD-PARTY SERVICES (INCLUDING ANY INSTALLATION WORK PERFORMED BY ANY THIRD PARTY) OR ANY CLAIM IN ANY WAY RELATING TO OR RESULTING FROM SUCH SERVICES.
11.1 MutualIndemnification. Each Party(the “Indemnifying Party”) will, at its sole expense, indemnify, defend and hold the other Party (the “Indemnified Party”) and its affiliates and their respective directors, officers, employees and agents (for each suchIndemnified Party, such Party’s “Co-Indemnitees”), harmless from any liability, claim, judgment, cost, expense, penalty, damage or loss(including reasonable attorney’s fees) (collectively “Losses”), but only in response to a claim made by a third party (other than IndemnifiedParty’s Co-Indemnitees), arising from: (a) any material breach by theIndemnifying Party of any representation, warranty or covenant contained in this Agreement; (b) any failure of the Indemnifying Party to comply with any applicable laws; (c) any misrepresentation by the Indemnifying Party; and (d)the fraud, negligence, or willful misconduct of Indemnifying Party.
11.2 IntellectualProperty Indemnification by EVPassport. In addition to the indemnification provisions set forth in Section 11.1, EVPassport will, at its sole expense, indemnify, defend and hold Customer and Customer’s Co-Indemnitees harmless from any Losses arising from any third-party claim that the Charging Management System infringes any patent, copyright, trade secret, trademark, or other intellectual property right of any third party enforceable in the United States. The foregoing indemnity will not apply if: (a) the alleged infringement is caused by Customer’s combination of the ChargingManagement System with any products or services not provided by EVPassport if the alleged infringement would not exist but for such combination; (b) the alleged infringement is attributable solely to any information, design, specification, function, routine, characteristic, instruction, software, data, or material provided or required by Customer; (c) the Charging ManagementSystem is modified by or on behalf of Customer in a manner that causes the infringement; or (d) the Charging Management System is used outside the scope of this Agreement. In the event that the Charging Management System, in EVPassport’s opinion, is likely to or does become the subject of a claim of infringement, EVPassport may at its sole option and expense: (i) replace or modify the ChargingManagement System to be non-infringing with equivalent or better functionality;(ii) obtain a license for Customer to continue using the Charging ManagementSystem; or (iii) if EVPassport is unable using commercially reasonable efforts to so replace or modify or obtain a license, to terminate this Agreement and refund the fees paid by Customer less the portion of the fees attributable to the period over which Customer actually used the Charging Management System, assuming full amortization of the Charging Management System over a period of five (5) years. THIS SECTION STATES EVPASSPORT’S SOLE LIABILITY TO CUSTOMER WITH RESPECT TO INFRINGEMENT OFANY INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS.
11.3 Indemnification by Customer.In addition to the indemnification provisions set forth in Section 11.1, Customer will, at its sole expense, indemnify, defend and hold EVPassport andEVPassport’s Co-Indemnitees harmless from any Losses arising from (a) the usage of any Hardware at the Property and (b) the installation (including anyInstallation Work), maintenance or removal of any Hardware at the Property, except to the extent that such Losses result from EVPassport’s fraud, gross negligence, or willful misconduct.
11.4 IndemnificationProcedure.Indemnified Party will (a) promptly notify Indemnifying Party in writing of any claim or other allegation for which Indemnifying Party is obligated to indemnify Indemnified Party under this Section 11 (each, a “Claim”);(b) promptly give Indemnifying Party the sole and exclusive right to control and direct the investigation, preparation, defense and settlement of such Claim with counsel of Indemnifying Party’s own choosing (provided that IndemnifiedParty will have the right to reasonably participate, at its own expense, in the defense or settlement of any such Claim); and (c) give full assistance and cooperation for the defense of same.
12.1 TO THE MAXIMUM EXTEND PERMITTED BY APPLICABLE LAW,EXCEPT FOR LIABILITY ARISING FROM (A) CUSTOMER’S BREACH OF SECTIONS 2.3 (LIMITATIONS)OR 3 (EXCLUSIVITY),(B) EITHER PARTY’S BREACH OF SECTION 8(CONFIDENTIALITY), (C) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN, OR (D) EITHER PARTY’S FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT,AS APPLICABLE, (I) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING 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 (II) IN NO EVENT WILL EVPASSPORT BE LIABLE TO CUSTOMER FOR ANY AMOUNT IN EXCESS OF ONE HUNDRED THOUSAND U.S. DOLLARS ($100,000). THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. NOTWITHSTANDING THE FOREGOING OR ANY OTHER PROVISION INTHIS AGREEMENT, IN NO EVENT WILL EVPASSPORT BE RESPONSIBLE FOR ANY DAMAGE CAUSED BY THE CHARGING MANAGEMENT SYSTEM ON OR AROUND THE PROPERTY, INCLUDING PERSONAL INJURY AND/OR PROPERTY DAMAGE.
13.1 Relationship of the Parties.Nothing in this Agreement will 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 will 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. The provisions of this Agreement are for the exclusive benefit of EVPassport and Customer only, and no other party will have any right or claim against either Party or be entitled to enforce any provisions hereunder against any Party.
13.2 Compliance withLaw; Export.The Parties will comply with all laws (including federal, state and local laws and regulations, orders and ordinances) now or hereafter enacted, of any jurisdiction in which performance occurs or may occur hereunder. Without limitation, each Party hereby acknowledges that the rights and obligations of this Agreement are subject to the laws and regulations of the United States relating to the import and export of products and technical information (as described below),and it will comply with all such laws and regulations. Except as otherwise expressly provided herein, each Party will be solely responsible for its violations of any of the foregoing. Without limiting the foregoing, Customer will comply with all United States laws and regulations controlling the export of certain commodities and technical data, including all Export AdministrationRegulations of the United States Department of Commerce.
13.3 Governing Law; Consent to Jurisdiction. The law, including the statutes of limitation, of the State of California will govern this Agreement, the interpretation and enforcement of its terms and any claim or cause of action (in law or equity),controversy or dispute arising out of or related to it or its negotiation, execution or performance, whether based on contract, tort, statutory or other law, in each case without giving effect to any conflicts-of-law or other principle requiring the application of the law of any other jurisdiction. Each of the Parties hereto hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of the State of California and of the United States of America located in the State of California (the “CaliforniaCourts”) for any litigation among the Parties hereto arising out of or relating to this Agreement, or the negotiation, validity or performance of thisAgreement, waives any objection to the laying of venue of any such litigation in the California Courts and agrees not to plead or claim in any CaliforniaCourt that such litigation brought therein has been brought in any inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of the California Courts.
13.4 Attorneys’ Fees. The prevailing Party in any legal action brought by one Party against the other arising out of thisAgreement, will be entitled, in addition to any other rights it may have, to reimbursement of its costs and expenses associated with such legal action, including court costs and reasonable attorneys’ fees.
13.5 Headings; Interpretation. The headings in this Agreement are used for convenience only and will not be used to limit or describe the scope of this Agreement or any of the obligations herein. All uses in this Agreement of “including” and similar terms will be interpreted to mean“including without limitation”.
13.6 Publicity. Neither Party will, without prior written consent of the other Party, issue a press release or other public statements or announcements regarding their business relationship or entry into this Agreement, such consent not to be unreasonably withheld, conditioned or delayed, provided that EVPassport may use Customer’s name and trademark(s) inEVPassport’s promotional and marketing material, including on its website and customer list.
13.7 Final Agreement; Amendment; Waiver. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior negotiations, understandings and agreements between theParties, whether written or oral regarding such subject matter. This Agreement may be amended, supplemented or changed only by an agreement in writing signed by both Parties. In the event of a conflict between this EVPassport Master SiteAgreement and the Order Form, this EVPassport Master Site Agreement will govern with respect to such conflict unless such Order Form expressly amends such terms and conditions, in which case such amended terms and conditions will govern with respect to such Order Form only. Any additional terms and conditions in any Customer purchase order or other similar document conflicting with, varying or adding to the terms and conditions of this Agreement, will be of no force and effect, unless theParties hereto agree in writing, in advance, to such terms and conditions. No waiver by any Party of any of the provisions of this Agreement will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement will operate or be construed as a waiver thereof, nor will any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
13.8 Force Majeure. Each Party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any of its obligations under this Agreement, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a Party's financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)) (a “Force Majeure Event”).Delays in performing obligations due to a Force Majeure Event will automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event. Upon the occurrence of any Force Majeure Event, the affected Party will give the other Party written notice thereof as soon as reasonably practicable of its failure of performance, describing the cause and effect of such failure, and the anticipated duration of its inability to perform.
13.9 Assignment. NeitherParty may assign or transfer this Agreement in whole or in part, by operation of law or otherwise, without the prior written consent of the other Party, except that either Party (the “Assigning Party”) may assign or transfer this Agreement without the written consent of other party (the “Non-AssigningParty”) to a corporation or other business entity succeeding to all or substantially all the assets and business of the Assigning Party to which thisAgreement relates (including, with respect to EVPassport as the Assigning Party, any sale of its electric vehicle service provider business) by merger or purchase, provided that such corporation or other business entity expressly assumes all of the terms and conditions of this Agreement. Any attempted assignment, delegation or transfer by an Assigning Party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the Parties and their successors and assigns. Notwithstanding the foregoing to the contrary, EVPassport may use independent contractors and third-party service providers to perform its obligations under this Agreement; provided that EVPassport will be responsible for performance by such third parties.
13.10 Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice”)must be in writing and addressed to the other Party at its address set forth either in the preamble (in the case of EVPassport) or on the Order Form (in the case of Customer) (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receivingParty; and (b) if the Party giving the Notice has complied with the requirements of this Section 13.10.
13.11 Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other term or provision of this Agreement.Upon a determination that any term or provision is invalid, illegal or unenforceable, the court may modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
13.12 Counterparts. ThisAgreement may be executed and delivered by facsimile or other electronic means(including PDF) and in multiple counterparts, each of which will be deemed an original, but all of which taken together will constitute one single agreement between the Parties.