Terms and Conditions for ChargeLab Services

United States Version. Last Updated: April 2, 2021

Whereas "ChargeLab", "Customer", "Services", and "Sites" have been defined in the ChargeLab Order Form (the "Order Form") that links to this webpage, and the Order Form has been signed by authorized representatives of both ChargeLab and Customer (the "Parties"), these Terms and Conditions shall take effect as of the date that both Parties signed the Order Form.

1. ChargeLab Services and Support

1.1

Subject to the terms of this Agreement, ChargeLab will use commercially reasonable efforts to provide Customer the Services in accordance with the Order Form and these Terms and Conditions. The Services include connecting and administering electric vehicle charging stations (“EVCS”) owned or managed by Customer, both Level 2 charging stations (“Level 2 EVCS”) and DC fast charging stations (“DCFC”). The EVCS are already, or will be, installed by a third-party at properties owned or managed by Customer (the “Sites”), as specified in the Order Form. Customer hereby grants ChargeLab an exclusive license to connect and administer the EVCS during the Term. Notwithstanding this Agreement, the EVCS shall remain the sole property of Customer (or its affiliates).

1.2

In order to provide Customer the Services, ChargeLab will provide other services to end users of the EVCS (the “End Users”). These services shall be governed by a separate agreement between ChargeLab and the End Users (the “End User Agreement”). If Customer chooses to monetize the EVCS, ChargeLab will bill fees to the End Users in accordance with their usage of the EVCS (“EVCS Usage Fees”). ChargeLab will remit all EVCS Usage Fees to Customer, less any fees owed to ChargeLab as per section 4.1 of this Agreement. Customer hereby grants ChargeLab exclusive rights to bill EVCS Usage Fees to End Users. For further clarity, Customer shall not bill End Users directly for usage of the EVCS or engage a third-party to bill EVCS Usage Fees, submetering fees, parking fees, or any other type of fee related to the usage of the EVCS.

1.3

Subject to the terms hereof, ChargeLab will provide Customer and End Users with reasonable technical support services in accordance with the Services selected in the Order Form. If the Tier 2 Customer support service is selected, ChargeLab will ensure that qualified technicians respond to all inquiries sent to support@chargelab.co within 24 hours barring an event of force majeure. This 24-hour period shall include weekday hours outside normal business hours but shall not include weekends or official U.S. or Canadian holidays. For further clarity, if an inquiry is sent at 7:00 pm EST on Friday, ChargeLab shall respond by 7:00 pm EST the following Monday (unless there is an interim holiday). If the Tier 1 End User support service is selected, ChargeLab will provide a toll free number and 24/7 call center service for responding to End User inquiries as quickly as possible. ChargeLab may also provide SMS, in-app chat, and email support in addition to the call center service. ChargeLab shall not be held responsible for End User support failures caused by failures in telecommunications networks, misuse of the EVCS by End Users, an event of force majeure, or any other event outside ChargeLab’s reasonable control. ChargeLab reserves the right, but is not obliged to, to provide Tier 1 End User support (24/7 or otherwise) at its own expense if Customer has not selected or paid for this service.

2. Restrictions and Responsibilites

2.1

Customer 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 the Services); 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 Customer for use on Customer premises or devices, ChargeLab hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.

2.2

Further, Customer 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

Customer represents, covenants, and warrants that Customer will use the Services only in compliance with ChargeLab’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Customer 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 Customer’s use of Services. Although ChargeLab has no obligation to monitor Customer’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

Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, electric vehicle charging stations (“EVCS”), EVCS firmware, modems, networking, electrical wire, conduit, transformers, disconnects, breakers, panels, hardware and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

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 Customer includes non-public data provided by Customer to ChargeLab to enable the provision of the Services (“Customer 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

Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer 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 Customer 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

Customer will pay ChargeLab the then applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”). This includes one-time fees for provisioning EVCS on ChargeLab’s servers (the “Activation Fees”), annual fees for the Services (the “Service Fees”), and fees based on the processing of EVCS Usage Fees by ChargeLab (the “Transaction Fees”). Transaction Fees listed as a percentage in the Order Form will be calculated by multiplying the percentage by all EVCS Usage Fees collected. Transaction Fees listed as a dollar amount in the Order Form are a fixed amount owed to ChargeLab for every transaction processed with a value greater than $0. All fees specified in this Agreement do not include local sales taxes. ChargeLab reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then‑current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that ChargeLab has billed Customer incorrectly, Customer 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. Customer 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 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 thirty (30) 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 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 Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this 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.

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 TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS 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 OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF 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 CUSTOMER TO CHARGELAB FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT CHARGELAB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8. Miscellaneous

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with ChargeLab’s prior written consent. ChargeLab may transfer and assign any of its rights and obligations under this Agreement without consent. This 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 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 Agreement and Customer 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 Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this 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 Agreement shall be governed by the laws of the State of New York without regard to its conflict of laws provisions.