ChargeLab Network Services Agreement

United States version. Last updated: March 6, 2022

By signing a ChargeLab Order Form (once executed by both Parties, the “Order Form”), logging into the dashboard made available by ChargeLab at https://dashboard.chargelab.co (the “Dashboard”) or otherwise engaging ChargeLab Inc. for the services described in Section 1 of this Agreement ("Services”), the customer identified in the Order Form or the Dashboard, as applicable (“Customer”) hereby enters into this ChargeLab Network Services Agreement with ChargeLab Inc. (“ChargeLab”), a Delaware corporation with a mailing address at 1049 El Monte Ave, Suite C #592, Mountain View, CA 94040. This ChargeLab Network Services Agreement incorporates the terms and conditions of the Order Form or the Dashboard, as applicable, and depending on the products and services ordered or used by Customer, may incorporate Supplementary Terms and Conditions (together, the “Agreement”). The Agreement will be a binding agreement effective on the date set out in the Order Form or the first date the services described herein are used by Customer (the “Effective Date”) and will apply to Services and Hardware (if any), provided by ChargeLab to Customer. Capitalized terms not otherwise defined in these Terms and Conditions will have the meanings ascribed to such terms in the Order Form or the Dashboard, as applicable. In this Agreement ChargeLab and Customer are the "Parties".

1. Network Services and Support

1.1.

Subject to and in accordance with the terms of this Agreement, ChargeLab will use commercially reasonable efforts to provide Customer the Network Services. “Network Services” consist of ChargeLab’s proprietary solution for connecting and administering electric vehicle charging stations (“EVCS”), both Level 2 charging stations (“Level 2 EVCS”) and DC fast charging stations (“DCFC”). For Network Services, the EVCS are already, or will be, installed by a third-party at properties owned or managed by Customer, as specified in the Order Form or the Dashboard (“Sites”). Customer may use the Network Services to connect and administer the EVCS.

1.2.

As part of the Network Services, ChargeLab will provide services to facilitate individual end users’ (“End Users”) access to the EVCS under a separate agreement between ChargeLab and the End Users. If Customer charges for EVCS access and use, Network Services include billing fees to the End Users for their usage of the EVCS (“EVCS Usage Fees”). ChargeLab will remit all EVCS Usage Fees to Customer, less any Transaction Fees owed to ChargeLab pursuant to Section 5.1 of these Terms and Conditions. Customer hereby grants ChargeLab exclusive rights to bill EVCS Usage Fees to End Users. As a condition of using the Network Services, Customer may 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.

Certain EVCS may be eligible to generate low-carbon fuel standard credits, clean fuel standard credits, clean fuel credits, carbon offsets, renewable fuels credits, emissions reduction units, or other credits, benefits, reductions, offsets, and allowances (“Carbon Credits”). ChargeLab maintains registration and administrative reporting cadences with various governing entities for the purpose of claiming Carbon Credits related to the use of the EVCS. As part of the Network Services, ChargeLab will file and claim Carbon Credits on Customer’s behalf. ChargeLab will remit to Customer any applicable proceeds earned from Carbon Credits generated by Customer’s EVCS, less Credit Processing Fees owed to ChargeLab pursuant to Section 5.1 of these Terms and Conditions. Customer hereby grants ChargeLab exclusive rights to claim Carbon Credits related to the use of the EVCS, unless otherwise agreed to in writing by both Parties.

1.4.

ChargeLab will use commercially reasonable efforts to provide Customer with technical support services in accordance with the tier of Network Services selected in the Order Form or Dashboard, as applicable, as follows:

1.4.1.

Tier 1 – qualified agents to respond as quickly as possible though a provided toll free number and 24/7 call center service. ChargeLab may also provide SMS, in-app chat, and email support in addition to the call center service.

1.4.2.

Tier 2 – qualified technicians to respond to all site host inquiries sent to sitehosts@chargelab.co within 24 hours of request (excluding weekends or official holidays).

ChargeLab will not be held responsible for support failures caused by failures in telecommunications networks, misuse of the EVCS by End Users or other events outside ChargeLab’s reasonable control.

2. Restrictions and Responsibilities

2.1.

Except as provided in any Supplementary Terms, Customer will be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Network Services, including, without limitation, EVCS, EVCS firmware, modems, networking, electrical wire, conduit, transformers, disconnects, breakers, panels, hardware and the like (“Equipment”). Customer will 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.

2.2.

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 party other than End Users; 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.

3. Confidentiality

3.1.

Each Party (“Receiving Party”) understands that the other Party (“Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (“Confidential Information” of the Disclosing Party). Confidential Information of ChargeLab includes non-public information regarding features, functionality and performance of the Services and, if applicable, the Hardware. Confidential Information of Customer includes non-public data provided by Customer to ChargeLab to enable the provision of the Services and, if applicable, the Hardware (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use any such Confidential Information except to carry out its obligations under this Agreement. The Disclosing Party agrees that the foregoing will not apply with respect to any Confidential Information after five (5) years following the disclosure thereof. Confidential Information will not include any information that the Receiving Party can document (a) is or becomes generally available to the public, (b) was in its possession or known by it prior to receipt from the Disclosing Party, (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party.

3.2.

Notwithstanding Section 3.1, Receiving Party may disclose Disclosing Party’s Confidential Information to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Receiving Party promptly notifies Disclosing Party in writing of such required disclosure and cooperates with Disclosing Party to seek an appropriate protective order.

4. Proprietary Rights

4.1.

ChargeLab will 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 Services, and (c) all intellectual property rights related to any of the foregoing.

4.2.

Except as expressly set forth in this Agreement, nothing in this Agreement assigns or grants to ChargeLab any right, title or interest including any intellectual property rights in or to Customer Data. The Customer will be responsible for maintaining, protecting, and making backups of Customer Data. To the extent permitted by applicable law, ChargeLab will not be liable for any failure to store, or for loss or corruption of Customer Data. The Customer grants to ChargeLab, and its subcontractors a nonexclusive, worldwide, royalty-free, irrevocable, sublicensable, and fully paid-up right during the Term to access, collect, use, process, store, disclose, transmit, copy, modify and display Customer Data to:

4.2.1.

provide the Services;

4.2.2.

improve and enhance the Services and its other offerings; and

4.2.3.

produce or generate data, information or other materials that are not identified as relating to a particular individual or company (such data, information and materials, the “Aggregated Data”). ChargeLab may use, process, store, disclose and transmit the Aggregated Data for any purpose and without restriction or obligation to the Customer of any kind. Aggregated Data is not Customer Data and is not the Customer’s Confidential Information.

5. Payment of Fees

5.1.

Customer will pay ChargeLab the then-applicable fees described in the Order Form or Dashboard for the Services and, if applicable, the Hardware, 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 Network Services (the “Network Service Fees”), fees based on the processing of EVCS Usage Fees by ChargeLab (the “Transaction Fees”), and fees based on filing Carbon Credits (the “Credit Processing Fees”). All Fees specified in this Agreement do not include any applicable sales, services, goods and services, harmonized sales or use 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. 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.

5.2.

If ChargeLab bills through an invoice, full payment 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 (19.56% per year) 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 Services.

5.3.

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

6. Term and Termination

6.1.

Subject to earlier termination as provided below, this Agreement including any Supplemental Terms, is for the Contract Length specified in the Order Form or the Dashboard (“Initial Term”) and will be automatically renewed for additional periods of the same duration (“Renewal Term”) and unless either Party requests termination at least thirty (30) days prior to the end of the then-current term Initial Term and any Renewal Terms (Initial Term and Renewal Term together the “Term”).

6.2.

Either Party may terminate this Agreement upon thirty (30) days’ notice (or by ChargeLab without notice in the case of nonpayment by Customer), if the other Party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services, as applicable, up to and including the last day on which the Services are provided.

6.3.

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.

7. Warranty and Disclaimer

ChargeLab will use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the 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 will use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. CHARGELAB DOES NOT WARRANT THAT THE SERVICES WILLBE 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 ARE PROVIDED “AS IS” AND CHARGELAB DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT

8. Indemnity

Customer hereby agrees to indemnify and hold harmless ChargeLab against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and legal fees) in connection with any claim or action that arises from any from Customer’s use of Services or Hardware contrary to the terms of this Agreement, any Policy published by ChargeLab or contrary to applicable laws.

9. Limitation of Liability

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON ARISING FROM CHARGELAB’S NEGLIGENCE, CHARGELAB AND ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES WILL 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 OR LOST PROFITS; (B) FOR ANY INDIRECT, EXEMPLARY, PUNITIVE 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 INITIAL ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE,WHETHER OR NOT CHARGELAB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10. Miscellaneous

10.1.

Customer will 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 Federal Acquisition Regulation (“FAR”) Section 2.101, the Software and documentation are “commercial items” and according to Defense Federal Acquisition Regulation Supplement (“DFARS”) Section 252.227 7014(a)(1) and (5) are deemed to be“ commercial computer software” and “commercial computer software documentation.” Consistent with DFARS 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.

10.2.

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 legal 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 will be governed by the laws of New York without regard to its conflict of law provisions.

Supplementary Terms and Conditions

Depending on the products and services ordered or used by Customer, this ChargeLab Network Services Agreement may incorporate Supplementary Terms and Conditions: