Charger-as-a-Service Agreement

United States Version. Last Updated: April 2, 2021

Upon the acceptance and signature of a ChargeLab Order Form (the “Order Form”) which references this Charger as a Service Agreement (the “CaaS Agreement”), this CaaS Agreement is hereby made and entered into between the customer specified in the Order Form (the“Subscriber”) and ChargeLab Inc., a corporation having a mailing address 1049 El Monte Ave, Suite C #592, Mountain View, CA 94040 (“ChargeLab”). Subscriber and ChargeLab may be referred to herein each as a “Party” and collectively as the “Parties”.

1. CaaS Services and Support

1.1.

Subject to the terms of this CaaS Agreement, ChargeLab will use commercially reasonable efforts to provide electric vehicle charging services to electric vehicle drivers (“End Users”) selected by Subscriber. In order to provide electric vehicle charging services to End Users, ChargeLab will install electric vehicle charging stations (“EVCS”) at sites specified by Subscriber in the Order Form (the “Sites”), connect the EVCS to ChargeLab’s charging station management system (“CSMS”), provide End User interfaces for payments and EVCS interaction, operate the EVCS 24/7, and maintain the EVCS, each of these being defined herein as a “Service” and collectively the “Services”.

1.2.

For the duration of this CaaS Agreement, ChargeLab will own and operate the EVCS installed at the Sites, taking full responsibility for keeping the EVCS functional in order to provide the Services. In addition to selecting the Sites and number of EVCS to be installed, Subscriber will also be entitled to determine the EVCS usage fees to be billed to End Users (if any) and which EndUsers may use the EVCS at all (for example the general public, Subscriber employees only, a private group of users, or any other restricted set of End Users the Subscriber wishes to provide electric vehicle charging services to).

1.3.

ChargeLab will install, own, and operate Level 2 charging stations (“Level 2 EVCS”) and/or DC fast charging stations (“DCFC”) at the Sites in accordance with the following terms and conditions:

1.3.1.

Site preparation: after signing the Order Form, Subscriber shall confirm with ChargeLab which parking spaces will be equipped with EVCS (the “Designated Parking Spaces”). Subscriber shall be responsible for preparing the site beforeChargeLab schedules and performs the installation of EVCS. “Site Preparation” includes performing any electrical service upgrades, installing circuit breakers, running conduit to the Designated Parking Spaces, running adequate wiring to the Designated Parking Spaces, installing WiFi modems or cellular signal repeaters, pouring concrete bases for pedestals, and any other make-ready work needed to prepare each individual Designated Parking Space for the specified EVCS that will be installed. Site Preparation may be performed by a ChargeLab install partner or by a third party contractor hired by Subscriber. In either case, all Site Preparation work shall be governed by a separate agreement and not this CaaS Agreement.

1.3.2.

Installation: After Subscriber completes Site Preparation and notifies ChargeLab, ChargeLab will promptly schedule and perform the installation of EVCS at the Designated Parking Spaces. For the purposes of this CaaS Agreement, “Installation”includes the connection of EVCS to pre-installed wiring, the mounting of wall-mounted EVCS on a wall adjacent to the Designated Parking Space or attachment of pedestal-mounted EVCS to a correctly formed concrete base, the initial powering up of EVCS, and the initial connection of EVCS to ChargeLab’s CSMS. If ChargeLab attempts to install the EVCS but is unable to do so because the Site Preparation has not been completed in accordance with ChargeLab’s guidelines, Subscriber will be given the option to pay the full cost of any portion of the Site Preparation that is completed by ChargeLab or a re-dispatch fee of $500 per Site plus applicable taxes.

1.3.3.

Maintenance of EVCS: ChargeLab shall ensure that the EVCS function in the manner required to provide the Services, including by remotely monitoring the EVCS;  immediately resolving any EVCS issues which can be resolved remotely; dispatching a qualified technician to the Site in the case of an issue that cannot be resolved remotely; coordinating and covering all parts and labor costs needed to resolve any EVCS issues, including on-site repair, reconfiguration, or replacement of EVCS; and repairing damages caused by End User accidents, vandalism, or heavy usage (except in cases of repeated vandalism where Subscriber does not take steps to improve security at the Site). Subscriber shall not directly or indirectly service, repair, modify, or reconfigure any EVCS. ChargeLab will not service, repair, modify, or reconfigure any equipment other than the EVCS, including electrical infrastructure, WiFi modems, cellular signal repeaters, signs and other parking space fixtures, or the paint applied to parking spaces, walls, or other surfaces.

1.4.

ChargeLab will provide ongoing network services for the EVCS installed at the Sites in accordance with the following Terms and Conditions:

1.4.1.

Included in all CaaS Fees are a full subscription to ChargeLab’s Premium Network Services Plan. ChargeLab’s Premium Plan includes all the services described in the Order Form in accordance with the Terms and Conditions for ChargeLab Services.

1.4.2.

Subscriber will inherit most of the rights and responsibilities of “Customer” described in the Terms and Conditions for ChargeLab Services, including the right to access ChargeLab’s site host dashboard, set End User EVCS pricing, and restrict EVCS access.

1.4.2.

All references to the Services in this CaaS Agreement shall be deemed to include the ChargeLab Premium Network Services described in the Order Form and theTerms and Conditions for ChargeLab Services.

2. Restrictions and Responsibilites

2.1.

Subscriber will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by ChargeLab or authorized within theServices); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Subscriber for use on Subscriber premises or devices, ChargeLab hereby grants Subscriber a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.

2.2.

Further, Subscriber may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

2.3.

Subscriber represents, covenants, and warrants that Subscriber will use the Services only in compliance with ChargeLab’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Subscriber hereby agrees to indemnify and hold harmless ChargeLab against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Subscriber’s use of Services. Although ChargeLab has no obligation to monitor Subscriber’s use of the Services, ChargeLab may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

2.4.

Subscriber agrees to provide ChargeLab, its maintenance technicians, and other third party affiliates of ChargeLab reasonable access to the Site(s) as needed to fulfill ChargeLab’s obligations to maintain the Services as per section 1.3.3 of this CaaS Agreement. This includes but is not limited to access to restricted parking areas where EVCS are located, access to electrical rooms, and access to other areas of the Site(s) as needed.

2.5.

Subscriber agrees to keep the area in which EVCS are installed clean, safe, and orderly, to at least the same standard Subscriber uses to maintain the remainder of the Sites.

2.6.

Subscriber shall promptly notify ChargeLab of any suspected abnormal behavior or issues with any EVCS as soon as Subscriber becomes aware of the issue.

3. Confidentiality; Proprietary Rights

3.1.

Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of ChargeLab includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Subscriber includes non-public data provided by Subscriber to ChargeLab to enable the provision of the Services (“Subscriber Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.

3.2.

Subscriber shall own all right, title and interest in and to the Subscriber Data, as well as any data that is based on or derived from the Subscriber Data and provided to Subscriber as part of the Services. ChargeLab shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.

3.3.

Notwithstanding anything to the contrary, ChargeLab shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Subscriber Data and data derived therefrom), and ChargeLab will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other ChargeLab offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein

4. Payment of Fees

4.1.

Subscriber will pay ChargeLab the then applicable fees described in the Order Form for the CaaS services in accordance with the terms therein (the “CaaS Fees”). ChargeLab reserves the right to change the CaaS Fees or applicable charges and to institute new charges and CaaS Fees at the end of the Initial Service Term or then‑current renewal term, upon ninety (90) days prior notice to Subscriber(which may be sent by email). If Subscriber believes that ChargeLab has billed Subscriber incorrectly, Subscriber must contact ChargeLab no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to accounting@chargelab.co.

4.2.

ChargeLab may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by ChargeLab thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Subscriber shall be responsible for all taxes associated with Services other than U.S. taxes based on ChargeLab’s net income.

4.3.

All references herein and in the Order Form to currency are to U.S. currency and all payments shall be made in U.S. currency unless otherwise agreed to in writing.

5. Term and Termination

5.1.

Subject to earlier termination as provided below, this CaaS Agreement is for the Contract Length specified in the Order Form, and shall be automatically renewed for additional periods of the same duration (collectively, the “Term”), unless either party requests termination at least ninety (90) days prior to the end of the then-current term.

5.2.

In addition to any other remedies it may have, either party may also terminate this CaaS Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this CaaS Agreement. Subscriber will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this CaaS Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

5.3.

Upon termination of this CaaS Agreement, Subscriber hereby grants ChargeLab permission to access the Sites for the purpose of removing the EVCS installed per section 1.3.2 of this CaaS Agreement. While the Services may terminate immediately on the expiration of this CaaS Agreement, Subscriber shall grant ChargeLab a ninety (90) day grace period to remove the EVCS and shall not attempt to remove the EVCS themselves except with direct written consent fromChargeLab.

5.4.

Under no condition shall this CaaS Agreement or its attached Order Form be construed or interpreted as an equipment lease or financing agreement.  ChargeLab shall remain the sole owner of all EVCS equipment provided in connection with this CaaS Agreement even after its termination. Subscriber shall only become the owner of the EVCS equipment in question through a separate buyout agreement that must be signed by both Parties at least ninety (90) days prior to the end of the then-current term of this CaaS agreement.

6. Warranty and Disclaimer

ChargeLab shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner.  Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by ChargeLab or by third-party providers, or because of other causes beyond ChargeLab’s reasonable control, but ChargeLab shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.  HOWEVER, CHARGELAB DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND ChargeLab DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

7. Limitation of Liability

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, CHARGELAB AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TOALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES,CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TOANY SUBJECT MATTER OF THIS CAAS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A)FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OFDATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSSOF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND CHARGELAB’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY SUBSCRIBER TO CHARGELAB FOR THE SERVICES UNDER THIS CAAS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TOTHE LIABILITY, IN EACH CASE, WHETHER OR NOT CHARGELAB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8. Miscellaneous

If any provision of this CaaS Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this CaaS Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Subscriber except with ChargeLab’s prior written consent. ChargeLab may transfer and assign any of its rights and obligations under this CaaS Agreement without consent. This CaaS Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this CaaS Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this CaaS Agreement and Subscriber does not have any authority of any kind to bind ChargeLab in any respect whatsoever. In any action or proceeding to enforce rights under this CaaS Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this CaaS Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This CaaS Agreement shall be governed by the laws of theState of New York without regard to its conflict of laws provisions.