Last Updated February 11, 2025
Capitalized terms used but not defined herein shall have the meaning set forth in the applicable Order Form. The offer set forth in the Order Form is valid for a period of ninety (90) calendar days from the date the Order Form is sent by EVPassport to the Customer, unless otherwise stated in the Order Form. If the offer is not accepted within this period, it will automatically expire without further notice. EVPassport reserves the right to extend or modify the offer period at its sole discretion. Except as expressly set forth herein no Plan is cancellable.
Customer agrees to provide access to each Site for purposes of a physical site inspection by EVPassport and its agents and representatives (the “Site Inspection”). The Parties agree that EVPassport may cancel the Order Form or reduce the number of Plans without penalty if, after the Site Inspection, EVPassport in its sole discretion deems the Site to be unsuitable for the Services or fails to meet the minimum requirements for the number of Charging Stations contemplated by the Order Form (the “Installation Requirements”). The Parties shall use good faith efforts to coordinate the Site Inspection as soon as reasonably practicable upon execution of the Order Form. For the avoidance of doubt, EVPassport’s termination of the Order Form or reduction in the number of Plans based on the results of the Site Inspection shall not constitute a breach of the Order Form. EVPassport reserves the right to have the Site Inspection performed by a third-party agent or subcontractor as determined in its sole discretion. Delay in the occurrence of the Site Inspection or the Plan Commencement Date shall not relieve Customer of its obligations under the Order Form and shall not constitute a breach of contract by EVPassport.
Customer shall be responsible for performing Site Preparation prior to installation of the Charging Platform. For purposes of the Order Form, the term “Site Preparation” means the completion by Customer, at its sole cost and expense, of all tasks, other than those obligations of EVPassport set forth herein, necessary to ensure that the Site is adequately prepared for the installation of the EV Charging Platform by EVPassport, which includes, but is not limited to: (a) ensuring the designated installation area is accessible, clear of obstructions, and safe for installation activities; (b) allocating and marking parking spaces intended for EV charging in compliance with applicable regulations; (c) identifying and clearing a pathway for conduit runs from the electrical panel to the charging station location in accordance with applicable building codes; (d) obtaining all necessary approvals and consents from relevant property owners or other entities required for installation and operation; and (e) ensuring the Site complies with applicable environmental, zoning, and safety regulations.
Customer shall 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 all or any portion of the Services, at any portion of the Premises, during the following periods: (i) from the Effective Date through the Plan Commencement Date and (ii) from the Plan Commencement Date for a period of time equal to the Plan Term Exclusivity Period. Customer acknowledges that the restrictions in this Section are reasonable and necessary to protect EVPassport’s legitimate business interests. Customer acknowledges that any breach of any of the provisions of this Section may 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. For purposes of the Order Form the term “Premise(s)” means (a) each Site as defined herein, including the entirety of the property located at each Site and (b) any adjacent, contiguous, or nearby properties or parcels under common ownership, leasehold, management, or control by the Customer where the Customer serves as landlord or has a beneficial interest.
5.1. Installation Work. EVPassport will install or have installed the Charger Stations at the Site location(s) (“Installation Work”) following the Site Inspection upon determination by EVPassport in coordination with Customer (“Approved Installation Locations”). Installation Work performed by an EVPassport-authorized contractor shall be performed pursuant to a separate agreement (“Separate Agreement”). The Parties agree that EVPassport passes on the representations and warranties of the contractor a party to such Separate Agreement to the extent able as it relates to the Installation Work and does not assume any liability in connection with the Separate Agreement. Subsequent to the Site Inspection, if EVPassport determines material additional upgrades are required for the Installation Work and such upgrades are deemed too extensive in EVPassport’s sole discretion or expenses related thereto would in EVPassport’s reasonable determination exceed the allowable Plan Fee increase set forth in the Order Form, the Parties will negotiate in good faith a mutually agreeable solution. If the Parties are unable to resolve the matter EVPassport retains the right to terminate the Order Form with no further effect.
5.2. Existing Infrastructure. Customer is solely responsible and solely liable for any infrastructure or make-ready work, including, but not limited to, conduits, service wires, transformers, and other secondary materials, whether subterranean or above-ground, existing at the Site or by a party other than EVPassport or an EVPassport-authorized contractor for purposes of this Order Form (the “Existing Infrastructure”).
5.3. Site Access. Customer will ensure access to the Site to EVPassport and its agents and representatives and cooperate in good faith as required in order for EVPassport and its agents and representatives to complete the Installation Work. For each instance, up to once per day per Site, where Customer and EVPassport have agreed to a scheduled date and time for EVPassport or its agents and representatives to perform Services at the Site but EVPassport or its agents and representatives are unable to do so because one or more such parties (i) cannot access the Site or the Approved Installation Locations for any reason due to Customer’s acts or omissions or failure to comply with the Order Form or (ii) the Site is deemed unsuitable for the Charging Platform in EVPassport’s sole discretion as a result of acts or omissions of Customer, then Customer agrees to pay a re-dispatch fee of $750 per day within thirty (30) days of receipt of EVPassport’s invoice for such fee.
5.4. Replacements; Substitutions. Customer acknowledges that the Charging Station, the EVSE and replacement parts installed pursuant to the Order Form or otherwise provided under the Limited Warranty (defined below) may be remanufactured, refurbished, or reconditioned, or, if the component is no longer manufactured, of substantially similar functionality.
5.5. Permits. It is understood and agreed that EVPassport’s ability to perform the Services is contingent upon its obtaining, after the execution date of the Order Form, all of the applicable permits and other approvals that may be required by any federal, state or local authorities (collectively the “Governmental Approvals”); provided, however, that Customer will be solely responsible for obtaining and maintaining any permits or licenses that may be required of Customer in connection with Customer’s operations, its qualification to do business, or other similar operational requirements, as applicable. Customer shall cooperate in a timely manner with EVPassport in its effort to obtain such Governmental Approvals. In the event that any of such applications for such Governmental Approvals should be finally rejected or EVPassport determines that such Governmental Approvals may not be obtained in a timely manner or any Governmental Approval issued to EVPassport or Customer is canceled, expires, lapses, or is otherwise withdrawn or terminated by the authority having jurisdiction (“AHJ”), EVPassport shall have the right to terminate the Order Form, in whole or in part, immediately upon written notice to Customer. Customer’s failure to cooperate in a timely manner with EVPassport to obtain Government Approvals shall not relieve Customer of its obligation to remit the fees and other amounts set forth in the Order Form. During the Term, Customer will ensure, and authorizes EVPassport to take all actions required to ensure, that Customer has all necessary permits to perform its obligations under the Order Form.
5.6. Credit Check. EVPassport may, in its sole discretion, require Customer to submit to a credit check to evaluate Customer’s creditworthiness. Notwithstanding any other provision contained herein, EVPassport shall, in its sole discretion, retain the right to terminate the Order Form based on the results of Customer’s credit check.
5.7. Relocation; Removal; Replacement. Customer may not move any Charging Station from the Approved Installation Location without the written consent of EVPassport. EVPassport may in its sole discretion upgrade or replace all or any portion of the Charging Platform, including any applicable EVSE, located at the Site at any time during the Term; provided, however, that in the event any such upgrade or replacement ceases the Services with respect to a Charging Station for more than five (5) days then EVPassport shall prorate the Plan Fees for such Charging Station to reflect such cessation of Services. For the avoidance of doubt, the Plan Commencement Date for any Plan will not be reset or affected upon any relocation or replacement of a Charging Platform. If more than fifty percent (50%) of the number of active Charging Stations at a Site consist of upgraded or replaced units at any time during the Term prior to the date upon which automatic renewal occurs as set forth in the Order Form, then EVPassport shall have the option in its sole discretion to extend the Plan Term by two (2) years. If any law or regulation enacted after the Plan Commencement Date requires modifications, upgrades, or replacements of an EVPassport Charging Station, Customer shall bear all associated costs. If such law mandates EVPassport to fund such modification, upgrade, or replacement, Customer shall reimburse EVPassport within thirty (30) days of invoicing. EVPassport is not obligated to implement changes until Customer agrees in writing to cover such costs.
5.8. Signage. EVPassport will be permitted to display EVPassport-branded signage identifying the EVPassport Charging Stations and any other signage required by applicable laws or as otherwise mutually agreed upon by the Parties at or in close proximity to the EVPassport Charging Stations at the Site.
6.1. Customer shall promptly notify EVPassport in the event Customer knows of or becomes aware of any malfunction of the Charging Platform. Customer will reasonably cooperate with EVPassport with its remote diagnosis of issues arising with the Charging Platform. Customer will not directly or indirectly service, repair, modify, or adjust any component of the Charging Platform. To the extent Customer (or its agents, contractors, employees) performs such activities, is otherwise negligent with respect to the operations of the Charging Platform, or otherwise tampers with or uses the Charging Platform in breach of the Order Form or in an unauthorized manner, EVPassport reserves the right to charge Customer for all costs incurred in connection with remedying such unauthorized activities, negligence, usage, or breach.
6.2. Customer shall take such action as may be reasonably necessary to prevent, avoid or mitigate damage or event of loss on, about or adjacent to the Site, the Charging Platform, and the EVSE. In the event of any such damage or event of loss, Customer shall use commercially reasonable efforts to cure, mitigate and remedy the causes or effects of such damage or event of loss with respect to the Charging Platform and the EVSE.
During a Plan Term, EVPassport shall make available to Customer the software-as-a-service solution (“EVPassport Cloud Services”) that will permit Customer to, among other things, monitor the performance of the Charging Stations. The EVPassport Cloud Services are an integral part of the Service. All references in the Order Form to the Service shall be deemed to include a reference to the EVPassport Cloud Services.
7.1. Operation of EVPassport Charging Network. Subject to the terms set forth herein EVPassport will: (i) operate and support the open-platform network of electric vehicle charging stations and the vehicle charging applications the network delivers, that is operated and maintained by EVPassport (the “EVPassport Charging Network”); (ii) provide and maintain the applications offered through the EVPassport Cloud Services; and (iii) operate the EVPassport Charging Network as it relates to the Customer in accordance with the Order Form and in compliance with applicable law. EVPassport will protect the confidentiality and security of all personally identifiable information in accordance with all applicable laws and regulations and the EVPassport Privacy Policy.
7.2. Limitations of Responsibility. EVPassport shall not be responsible for, and makes no representation or warranty with respect to, the following: (i) availability of or interruption of the EVPassport Charging Network attributable to unauthorized intrusions; (ii) continuous availability of electrical service to any of the Charging Stations at a Site; or (iii) continuous availability of any wireless or cellular communications network or internet service provider network necessary for the continued operation of the Charging Platform.
7.3. Beta Services. From time to time, EVPassport may invite Customer to try, at no additional charge, services or functionality that may not be generally available to EVPassport’s customers (the “Beta Services”). Customer may accept or decline any such trial in its sole discretion. Beta Services are for evaluation purposes and not for production use, are not considered Services under the Order Form, are not supported, and may be subject to additional terms. Beta Services will be designated as beta, pilot, limited release, developer preview, or non-production. Customer may not use the Beta Services for any purpose other than to evaluate the viability of the Beta Services concept and provide Feedback to EVPassport to support a commercial release. The Beta Services are not supported and may contain bugs or errors. EVPassport may discontinue Beta Services at any time in its sole discretion and may never make them generally available. EVPassport will have no liability for any harm or damage arising out of or in connection with a Beta Service.
Subject to the terms of the Order Form, EVPassport offers the Services to Customer during the Plan Term. EVPassport hereby provides to Customer, and Customer hereby subscribes to from EVPassport, subject to the terms and conditions of the Order Form and the terms and conditions hereof, the Charging Platform. EVPassport will also provide the built-in software required for operability of the Charging Stations (the “Firmware”), which EVPassport may update and upgrade from time to time.
EVPassport warrants the Charging Platform for the warranty period set forth in the Order Form in accordance with the terms and conditions of EVPassport’s limited warranty applicable to the specific equipment type, year, condition, category and model in effect as of the Plan Commencement Date for each Charging Station (the “Limited Warranty”). Exclusions and limitations apply.
EXCEPT FOR THE LIMITED WARRANTIES EXPRESSLY PROVIDED IN THIS SECTION 9, EVPASSPORT EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY MADE, OR THAT MAY HAVE BEEN MADE, IN CONNECTION WITH THE ORDER FORM AND ITS SERVICES OR OBLIGATIONS THEREUNDER, WHETHER EXPRESS, IMPLIED, STATUTORY, ARISING BY CUSTOM OR TRADE USAGE, OR OTHERWISE INCLUDING, WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, UNINTERRUPTED SERVICE, AND ANY WARRANTY ARISING OUT OF A COURSE OF PERFORMANCE OR DEALING. EVPASSPORT IS NOT RESPONSIBLE FOR AND WILL NOT BE LIABLE FOR, ANY DAMAGES OR LOSSES CAUSED BY (A) QUALITY OF ANY THIRD-PARTY SERVICES OR ANY CLAIM IN ANY WAY RELATING TO OR RESULTING FROM SERVICES; (B) ELECTRICAL OUTAGES, POWER SURGES, BROWN-OUTS, UTILITY LOAD MANAGEMENT OR ANY OTHER SIMILAR ELECTRICAL SERVICE OR OTHER UTILITY INTERRUPTIONS OR OUTAGES, WHATEVER THE CAUSE; (C) INTERRUPTIONS IN WIRELESS OR CELLULAR SERVICE LINKING CHARGING STATIONS TO OTHER COMPONENTS OF THE CHARGING PLATFORM; (D) INTERRUPTIONS IN SERVICES PROVIDED BY ANY INTERNET OR WIRELESS SERVICE; OR (E) EXISTING INFRASTRUCTURE. EVPASSPORT IS PROVIDING THE CHARGING PLATFORM, SERVICES, AND, IF APPLICABLE, BETA SERVICES, ON AN “AS IS” AND “WHERE IS” BASIS. CUSTOMER UNDERSTANDS AND AGREES THAT CUSTOMER TAKES COMPLETE RESPONSIBILITY FOR USERS USE OF THE SERVICES PROVIDED HEREUNDER AND ANY USE IS AT CUSTOMER’S AND ITS USERS’ OWN DISCRETION AND RISK. THESE DISCLAIMERS APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
Nothing contained in the Order Form shall be construed as an intent by EVPassport to dedicate the Charging Platform to public use or subject itself to regulation as a “public utility” (as such term may be defined under any applicable law).
11.1. General. All use of the EVPassport Cloud Services by Customer, its employees and agents shall comply with the Order Form. All EVPassport Cloud Services account details, passwords, keys, and credentials (“Credentials”) are solely for Customer’s own use, and Customer will keep all such items secure and confidential. Customer will use reasonable efforts to prevent, and shall be fully liable to EVPassport for, any unauthorized access to, use of or damage to the EVPassport Cloud Services arising as a result of Customer’s breach of its obligations under this Section. Customer will promptly notify EVPassport upon becoming aware of any such unauthorized use. Customer will not provide access to the EVPassport Cloud Services to any person who is not an employee or contractor of Customer.
11.2. Use of Cloud Services. Customer shall not: (a) sell, resell, license, rent, lease or otherwise transfer the EVPassport Cloud Services or any data collected or maintained by EVPassport in connection with the operation of the Charging Platform to any third party; (b) interfere with or disrupt the EVPassport Cloud Services, the EVPassport Charging Network, servers, or networks connected to the EVPassport Cloud Services, or disobey any requirements, procedures, policies, or regulations of networks connected to the EVPassport Charging Network; (c) attempt to gain unauthorized access to the EVPassport Charging Network or the Charging Platform or related systems or networks or any data contained therein, or access or use the Charging Platform through any technology or means other than those provided or expressly authorized by EVPassport; (d) reverse engineer, decompile or otherwise attempt to extract the source code of the Charging Platform, including, without limitation, the Charging Stations, the Firmware, and EVPassport Cloud Service, or any part thereof, except to the extent expressly required by applicable law; (e) translate, modify or create derivative works based on the EVPassport Cloud Services, the EVPassport Charging Network, the Charging Platform, the Firmware, or any of EVPassport’s various trademarks, service marks, trade names, logos, domain names, and other distinctive brand features and designations used in connection with EVPassport or EVPassport manufactured Charging Stations, (the “EVPassport Marks”) and all other EVPassport-supplied material developed by EVPassport; (f) remove, conceal or cover the EVPassport Marks or any other markings, labels, legends, trademarks, or trade names installed or placed on the Charging Stations or any peripheral equipment for use in connection therewith; (g) copy, rent, lease, distribute, pledge, assign or otherwise transfer or allow any lien, security interest or other encumbrance on any of the Charging Platform or EVPassport Cloud Service; (h) use any of the EVPassport Cloud Service for timesharing or service bureau purposes or otherwise for the benefit of a third party; (i) hack, manipulate, interfere with or disrupt the integrity or performance of or otherwise attempt to gain unauthorized access to any of the EVPassport Software or its related systems, hardware or networks or any content or technology incorporated in any of the foregoing; or (j) remove or obscure any proprietary notices or labels of EVPassport or its suppliers on any of the Charging Platform or the EVPassport Cloud Services; (k) except as otherwise expressly permitted by the Order Form or in any applicable data sheet relating to the Charging Platform, copy, frame or mirror any part of the Charging Platform, other than copying or framing on Customer’s own intranets or otherwise solely for Customer’s own internal business use and purposes; (l) access the EVPassport Charging Network, Charging Platform, or any part of the EVPassport Cloud Services for any competitive purpose, or for any improper purpose whatsoever, including, without limitation, in order to build a competitive product or service or copy any features, functions, interface, graphics or “look and feel;” (m) use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the EVPassport Cloud Services and the Charging Platform or collect information about Users for any unauthorized purpose; (n) upload, transmit or introduce any malicious code to EVPassport, the EVPassport Cloud Services, the EVPassport Charging Network or the Charging Platform; (o) use any of the Services if Customer is a person barred from such use under the laws of the United States or of any other jurisdiction; (o) use the EVPassport Cloud Service to upload, post, display, transmit or otherwise make available (i) any inappropriate, defamatory, obscene, or unlawful content; (ii) any content that infringes any patent, trademark, copyright, trade secret or other proprietary right of any party; (iii) any messages, communication or other content that promotes pyramid schemes, chain letters, constitutes disruptive commercial messages or advertisements, or is prohibited by applicable law, the Order Form or the EVPassport Documentation; or (p) utilize the EVPassport Cloud Services for any other purpose other than Customer’s internal business purpose.
11.3. Reservation of Rights. Customer acknowledges and agrees that EVPassport retains all rights, title, and interest in and to the EVPassport Cloud Services, the EVPassport Charging Network, the Charging Platform, the EVPassport Documentation, and the EVPassport Marks (collectively, “EVPassport”) including 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 the Order Form with respect to EVPassport Property. Customer will not have or obtain any right, title or interest in or to EVPassport Property (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 rights as expressly provided and not prohibited in the Order Form.
11.4. Restrictions. Except as otherwise specifically permitted in the Order Form or otherwise authorized in writing by an authorized employee of EVPassport, Customer may not: (a) remove, obscure or deface any proprietary rights or other notices on the Charging Platform, the EVSE, the EVPassport Documentation, or the EVPassport Marks; (b) make any alterations or additions to the Charging Platform or the EVSE; (c) service or repair any of the Charging Platform or the EVSE; (d) directly or indirectly, use or permit a third party to use any Charging Platform to provide any charging services while bypassing (intentionally or otherwise) the EVPassport Charging Network; or (e) publish or make public any performance results from the Charging Platform or the EVPassport Cloud Services.
11.5. Monitoring and Statistical Information. EVPassport may monitor usage, User Data and other operating metrics of the Charging Platform and compile statistical and performance information related to the operation of and provision of access to the Charging Platform for EVPassport’s internal use and other lawful purposes.
12.1. Termination for Cause. EVPassport may terminate the Order Form immediately upon written notice to Customer if (i) Customer breaches the Order Form and fails to cure such breach within thirty (30) days after written notice of such breach provided by EVPassport to Customer, or where such breach cannot be cured within such thirty- (30-) day period in EVPassport’s reasonable judgment; (ii) Customer becomes insolvent, files for bankruptcy, or is otherwise unable to pay its debts as they come due; (iii) Customer ceases to function as a going concern or to conduct its operations in the normal course of business; (iv) Customer assigns or transfers, either voluntarily or by operation of law, any rights or obligations under the Order Form except as expressly allowable herein; (v) Customer abandons or sells the Site, except as expressly permitted in Section 24.6 (Assignment), or sells or attempts to sell any Charging Station, except as expressly allowed for herein; or (vi) Customer allows any security interest, lien or encumbrance to burden all or a part of the Charging Platform.
12.2. Early Termination for Convenience by EVPassport. EVPassport may terminate the Order Form for any other reason or no reason by providing one-hundred eighty (180) days prior written notice to Customer.
12.3. Early Termination for Convenience by Customer. Customer may terminate the subscription for any or all Charging Stations for convenience, by providing ninety (90) days prior written notice to EVPassport, provided that no more than two (2) full years remain in the applicable Plan Term at the time of the termination request. Such termination shall be subject to the following conditions: (i) No Breach: Customer must not be in breach of the Order Form and must have paid all amounts due and payable as of the date of the termination request; (ii) Payment of Future Fees: Customer remits payment to EVPassport, in full and as a condition precedent to termination, all fees, including Plan Fees, that would have otherwise become due for the remaining duration of the Plan Term had the Plan Term not been terminated (“Remaining Fees”), plus an amount equal to twenty percent (20%) of the Remaining Fees (which such fee the Parties hereby acknowledge and agree exit fee is a reasonable estimate of damages incurred as a result of termination and is not intended to be, nor shall it be construed as, a penalty); and (iii) Advance Notice: Customer provides EVPassport with written notice of termination at least ninety (90) days in advance of the desired termination date. This Section shall apply notwithstanding any other provision of the Order Form and shall not relieve Customer of its obligations to pay any and all amounts accrued but unpaid as of the effective date of termination.
12.4. Effect of Termination. Upon expiration or termination of the Order Form or Plan Term as to any or all Services, (i) Customer hereby grants EVPassport the right, following such expiration or termination, to enter the Site for the purpose of removing the applicable Charging Station(s) and any related EVSE, export data and log files stored on the Charging Stations, and decommission the Charging Station link to the EVPassport Cloud Services; (iii) except as expressly stated herein, all rights granted hereunder and all obligations of EVPassport to provide the EVPassport Cloud Services and updates to the Firmware will immediately terminate, and Customer will (A) cease use of the Charging Platform and (B) return or destroy all other copies or other embodiments of EVPassport’s Confidential Information; and (iv) with respect to any Charging Station or related Services terminated hereunder, EVPassport will no longer be bound to deliver any support, maintenance, or other Services with respect to such Charging Station. Upon the expiration or termination of the Plan Term, EVPassport shall have the right but not the obligation to enter the Site within 120 days after the effective date of such termination or expiration to remove or demobilize the applicable Charging Stations and any related EVSE. The Customer acknowledges that modifications made to the Site to accommodate the Charging Platform, including but not limited to electrical upgrades, conduit installations, and concrete pads, may alter the Site’s pre-installation condition. EVPassport shall have no obligation to remove underground electrical conduit, transformers, or other embedded infrastructure unless otherwise agreed in writing. Under no circumstances shall the EVPassport be responsible for: (i) reconstructing pavement, curbs, sidewalks, or landscaping beyond the immediate area of installation; (ii) restoring or repairing electrical upgrades that remain beneficial to the Site; or (iii) any consequential damages arising from the removal of the charging stations. To the extent EVPassport elects not to undertake any such removal or demobilization within such 120-day period, ownership of the applicable Charging Stations shall pass to Customer on an as-is, where-is basis, with no further obligations or warranties from EVPassport. Upon the expiration of the Plan Term, the risk of loss, damage, theft, or destruction of the specific Charging Station shall transfer to the Customer. The Customer shall bear full responsibility and liability for the Charging Station and any component part thereof from the end of the Plan Term, including, but not limited to, costs for repair, replacement, or damages arising from its use, possession, or condition. Upon the termination or expiration of the Order Form, Customer is responsible, at its sole cost, for removing or covering all EVPassport signage and EVPassport Intellectual Property appearing on or relating to the Charging Platform and the EVPassport Charging Network.
13.1. Charging Platform, EVPassport Cloud Services, and EVPassport Charging Network. As between EVPassport and Customer, EVPassport retains all rights, title and interest in and to the Charging Platform, EVSE, EVPassport Cloud Services, and EVPassport Charging Network and all intellectual property rights therein. All rights not expressly granted herein are expressly reserved by EVPassport. Customer will keep the Charging Platform, the EVPassport Charging Network and each component thereof free and clear of all security interests, claims, liens, and encumbrances. Customer will promptly execute and deliver to EVPassport such further documents and take such further action as EVPassport may request to carry out more effectively the intent and purposes of this Section 13. Customer hereby authorizes EVPassport to file at any time and from time to time in any filing office in any Uniform Commercial Code jurisdiction any Uniform Commercial Code financing statements, continuations and amendments describing the Charging Platform, the EVPassport Charging Network, and any component thereof and to do all other acts reasonably necessary to provide notice to third parties of the Order Form and EVPassport’s ownership of the Charging Platform and the EVPassport Charging Network. TO THE EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER WAIVES ANY AND ALL RIGHTS AND REMEDIES CONFERRED UPON CUSTOMER BY ARTICLE 2A OF THE UNIFORM COMMERCIAL CODE THAT CUSTOMER MAY HAVE AGAINST EVPASSPORT.
13.2. Feedback. Customer may from time to time provide suggestions, comments, and feedback to EVPassport with respect to the Charging Platform or the EVPassport Cloud Services, 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.
13.3. Intellectual Property.
13.3.1. Intellectual Property. “Intellectual Property” means all copyrights, patents, trademarks and service marks, names, logos, designs, domain names, all registrations for copyrights, patents, trademarks and service marks/names, domain names, trade secrets, know-how, and all unique concepts, information, data and knowledge that is eligible for legal protection under applicable laws as intellectual property, whether protected through confidentiality, registration or pending registration, regardless of form, whether disclosed in writing, electronically, orally or through visual means, whether learned or obtained orally, through observation, through the discharge of responsibilities under the Order Form, or through analysis of that information, data or knowledge.
13.3.2. Customer Intellectual Property. The Parties agree that, as between them, Customer has and retains ownership of all of Customer’s Intellectual Property, and EVPassport has no right, and shall not obtain any right, in any Customer Intellectual Property.
13.3.3. EVPassport Intellectual Property. The Parties agree that, as between them, EVPassport has and retains ownership of all of EVPassport’s Intellectual Property, and Customer has no right, and shall not obtain any right, in any EVPassport Intellectual Property.
13.3.4. Ownership of Drawings and Other Documents. All documents and work product prepared by or under the direction of EVPassport pursuant to the Order Form, including, without limitation, drawings, surveys, technical drawings, specifications, and other documents, including those in electronic format, are solely and exclusively EVPassport Intellectual Property, and EVPassport retains all common law, statutory and other reserved rights, including the copyright.
14.1. Invoicing; Payment. Fees for Services will be invoiced to or debited from Customer on a monthly basis in advance of the applicable service period. All invoices are due within thirty (30) days of the invoice date. Late payments are subject to interest at the rate of one and one-half percent (1.5%) per month or, if less, the highest rate allowed under applicable law. The Parties further agree that any interest paid under this provision is a reasonable estimate of damages incurred as a result of late payment and shall be treated as compensation for the time value of money and not as a penalty or windfall to the receiving party, and shall not be subject to characterization as a tax or other charge under applicable laws. If any amount owing by Customer under the Order Form is more than thirty (30) days overdue, EVPassport may, without otherwise limiting EVPassport’s rights or remedies, terminate the Services, suspend the Services, and enter onto the Premises for the purpose of reclaiming the Charging Stations. Customer shall be liable for all costs, including reasonable attorneys’ fees and Charging Station recovery fees, incurred by EVPassport in connection with its efforts to collect any past due amounts. Customer is required to pay all amounts due and owing during its chosen Plan Term regardless of whether it is using the Service. The Plan Fees set forth in the Order Form shall be subject to an annual adjustment for the period commencing on or after the first anniversary of the Effective Date and each one-year period thereafter. Such increases shall be at EVPassport’s discretion up to the greater of (i) three percent (3%) or (ii) the percentage change in the Consumer Price Index (CPI) for All Urban Consumers (published by the U.S. Bureau of Labor Statistics) over the preceding twelve (12) months. Following instances of material or repeated late payments of amounts due by Customer hereunder, EVPassport reserves the right to bill or debit Customer for amounts due hereunder up to one (1) year in advance.
14.2. ACH Payment and Remittance. Customer hereby authorizes EVPassport to initiate automated clearing house (“ACH”) debits from Customer’s designated bank account for payment of all fees and charges due under the Order Form. Customer agrees to timely provide and maintain valid and sufficient bank account information to facilitate such ACH payments. If any ACH payment is rejected due to insufficient funds or other reasons, Customer shall remain responsible for timely payment of all outstanding amounts and any applicable bank or administrative fees incurred as a result of the failed transaction. Customer agrees to provide and maintain a valid authorization for EVPassport or its service provider to debit Customer’s bank account automatically for all amounts due hereunder, including Plan Fees. Customer authorizes EVPassport to credit Customer via ACH for amounts due to Customer hereunder. Customer’s bank account must be held at a U.S. depository institution, be denominated in U.S. Dollars, and be used exclusively for commercial purposes, and not for any personal, family or household purpose. Customer represents and warrants that it owns and is authorized to use the bank account provided for all purposes set forth in the Order Form. The Parties agree to be bound by the Operating Rules of the National Automated Clearing House Association governing ACH transactions and agree that ACH transactions must comply with all applicable law. Customer may not revoke or reject ACH payments without the prior written authorization of EVPassport. Any modifications to the ACH payment arrangement, including alternative payment methods, must be pre-approved in writing by EVPassport at its sole discretion.
14.3. Credit Card Fees. If Customer elects to pay any amounts due hereunder by credit card, Customer acknowledges and agrees to pay any associated credit card processing fees equal to 3.5%.
14.4. Vendor Portal. Customer shall be solely responsible for any and all costs, fees, or administrative expenses associated with the registration, maintenance, or use of any Customer vendor portal, and EVPassport shall have no obligation to incur or reimburse any such costs. For the avoidance of doubt, EVPassport shall have no obligation to register for or utilize any Customer-mandated vendor portal as a condition of doing business. Any terms, conditions, or obligations imposed through a Customer’s vendor portal, including but not limited to payment terms, service levels, compliance requirements, indemnification obligations, or reporting duties, shall be deemed null, void, and unenforceable against EVPassport unless expressly agreed to in a separate written agreement executed by an authorized representative of EVPassport. In the event of any conflict between this Agreement and any terms associated with a Customer’s vendor portal, the terms of this Agreement shall govern. EVPassport’s access to, registration with, or continued use of any such portal shall not constitute acceptance of any additional or inconsistent terms.
14.5. Revenue Share. The Parties anticipate that the Charging Stations installed by EVPassport will generate revenue by charging energy usage and per use convenience fees (“Charge Fee”) to Users of the Charging Stations placed on the Site (“Charging Revenue”). EVPassport shall set the rate of the Charge Fee and such other fees as will apply to the use and operation of the Charging Stations by Users, including, without limitation, idle fees, and any other fees (collectively, “Other Fees” and, together with Charge Fees, “Use Fees”). EVPassport shall have the right to set Use Fees for the Charging Stations as determined in its sole discretion. Charge Fees shall be shared in proportion to the “Revenue Share” ratio set forth in the Order Form, net of any and all taxes, chargebacks, refunds, third-party costs (including, but not limited to, brokerage and administrative fees), payment reverses and a five percent (5%) administration fee in favor of EVPassport. EVPassport will remit to Customer the percentage of Charge Fees (the “Customer Revenue Share”) with respect to a calendar month within sixty (60) days of the end of such calendar month. EVPassport reserves the right to withhold payment of the Customer Revenue Share until such time as the Customer Revenue Share for Customer is equal to or greater than $200.00 USD.
14.6. Environmental Credits. The Customer hereby appoints EVPassport and its representatives on an exclusive basis with respect to carbon credit generation, administration, optimization, and monetization opportunities within environmental and clean energy regulatory schemes, including, but not limited to, low carbon fuel standard programs related to the use of the Charging Platform by Users (“Carbon Credit”). During the Term, commencing on the effective date of the Order Form, the Customer hereby irrevocably transfers ownership of the Carbon Credits generated by the Charging Platform to EVPassport for the purpose of sale and administration. EVPassport shall have the exclusive right to sell, and transfer said Carbon Credits on behalf of the Customer. The Customer shall receive a payment or purchase credit for the equivalent value of the Customer’s share of the “Revenue Share” ratio set forth in the Order Form for any such Carbon Credit in EVPassport’s products and services, net of any and all taxes, chargebacks, refunds, third-party costs (including, but not limited to, brokerage and administrative fees), commissions and payment reversals in connection with the foregoing and a five percent (5%) administration fee (“Customer Carbon Credit Share”). EVPassport shall distribute to the Customer Carbon Credit Share on an annual basis. For the avoidance of doubt EVPassport retains any and all rights to claim any and all other environmental credits and attributes associated with the manufacture, sale, use, production, operation and ownership of the Charging Platform. Customer will cooperate with EVPassport’s efforts to qualify for and obtain environmental credits and attributes.
14.7. Incentives and Grants. Any calculations of incentives, credits, subsidies and other benefits and advantages set forth in the Order Form or otherwise communicated to Customer (“Incentives”) are estimates only. Customer remains responsible for the full amount set forth in the Order Form, including, for the avoidance of doubt, any and all amounts for estimated or anticipated Incentives. Customer’s reliance on any incentives or grants offered by third parties shall not relieve Customer of its obligations to timely remit payment for any and all amounts due hereunder.
14.8. Set-off; Recoupment. In addition to any right of set-off or recoupment provided by law, all amounts due to Customer or any of its affiliates or subsidiaries (collectively, “Customer Parties”) will be considered net of indebtedness or payment obligations of EVPassport or any of its affiliates or subsidiaries (collectively, “EVPassport Parties”). EVPassport will be entitled at any time to set-off or recoup against sums payable by any EVPassport Party to any Customer Party any amounts for which EVPassport determines in good faith that any Customer Party is liable to any EVPassport Party. EVPassport will notify Customer of any such set-off or recoupment.
14.9. Abandoned Revenues. If EVPassport is unable to disburse Customer Revenue Share or Customer Carbon Credit Share or any other amounts EVPassport owes to Customer due to Customer’s failure to provide or maintain accurate contact or payment account information, or due to any other Customer action or inaction, EVPassport will consider such amounts abandoned and either retain such amounts for its own account or escheat them in accordance with applicable state law.
EVPassport may suspend Service without liability if: (i) EVPassport reasonably believes that the Charging Platform or EVPassport Cloud Services are being used in violation of the Order Form; (ii) Customer does not cooperate with reasonable investigation by EVPassport of any suspected violation of the Order Form; (iii) Customer is in violation or breach of the Order Form and such breach remains uncured after thirty (30) days of notice; (iv) EVPassport is required by law, or a regulatory or government body to suspend Service; (v) any amounts due under the Order Form invoiced amounts remain unpaid by Customer for more than thirty (30) calendar days past the due date; or (vi) there is another event for which EVPassport reasonably believes that the suspension of Services is necessary to protect the Charging Platform or the EVPassport Cloud Services.
16.1. Customer Contact. Customer will designate in writing a “Customer Contact”, who may be an employee, contractor, or agent of Customer, or an authorized third party, who will act as Customer’s designated liaison with EVPassport for those matters covered by the Order Form. Customer is responsible for timely updating the designated Customer Contact at any time via written notice to EVPassport.
16.2. Customer Data. All data, information, content or other materials supplied by or collected from Customer shall constitute “Customer Data”. For clarity, Customer Data does not include User Data (defined below). Customer may from time to time provide certain Customer Data to EVPassport. As between EVPassport and Customer, Customer shall retain ownership of all Customer Data, and shall collect, process, and share Customer Data in accordance with applicable laws and regulations. Customer hereby grants to EVPassport a non-exclusive, royalty-free, fully-paid worldwide license (with the right to sublicense) to access, use, reproduce and create derivative works of the Customer Data to provide the Services and to fulfill EVPassport’s obligations under the Order Form. Furthermore, EVPassport shall have the right to collect and analyze data and other information relation to Customer’s use of the Services and EVPassport will be free (during and after the Term) to use such information and data in connection with EVPassport’s development, diagnostic and corrective purposes in connection with the Services and other EVPassport offerings; provided that any disclosure of Customer Data shall be solely in aggregate or other de-identified form such that the identity of Customer cannot be determined by such third parties.
16.3. User Access. Customer agrees to ensure that the Charging Stations at the Site are accessible for use by Users at all times and that the public areas, parking spaces, streets, and sidewalks at the Site and spaces appurtenant to the Charging Stations are reasonably free of debris and rubbish and in good repair and condition. EVPassport may require Users to agree to EVPassport’s terms and conditions, end-user license agreement, data privacy policy and other agreements and policies that EVPassport may make available (as amended from time to time, the “User Terms”). All data, information, content or other materials supplied by or collected from Users, including through Users’ use and access of the EVPassport Charging Network, shall constitute “User Data.” As between EVPassport and Customer, User Data will be owned by EVPassport and may be used by EVPassport in accordance with its Privacy Policy and applicable laws and regulations. Except as otherwise expressly set forth herein the User Terms are solely between EVPassport and a User and do not constitute part of the Order Form. EVPassport reserves the right, in its sole discretion, to suspend provision of any charging services with respect to a User who violates any of the User Terms. Customer will take reasonable measures including, without limitation, towing vehicles, to prevent and discourage (i) non-electric vehicles from parking in the spots with one or more Charging Stations and (ii) electric vehicles from idling in a spot with one or more Charging Stations without actively charging the vehicle with the Charging Station. If access to any Charging Station is blocked at the Site for a period of more than twenty-four (24) hours, Customer will use best efforts to remove such blockage and will immediately notify EVPassport of such blockage.
16.4. Electricity Costs; Internet. All costs of electricity and other utilities required to install, maintain, operate, use, and supply power to the Charging Stations in connection with the Services are the sole responsibility of Customer. Customer will provide EVPassport with all information regarding such electricity and other utilities as reasonably requested by EVPassport from time to time, including the utility provider and rates charged to Customer by such provider. Customer is solely responsible for arranging Internet connections as necessary to operate the Charging Platform and will bear all costs for any such connections or other communication services necessary for the operation of the Charging Platform.
16.5. Power Supply. Customer will maintain good standing with its electric utility provider and will ensure adequate power supply is available and deliverable to the Charging Stations at the Site during the Term. If power supply to any Charging Station is disrupted, Customer will use best efforts to promptly restore power and will immediately inform EVPassport if such disruption exceeds three (3) days.
16.6. EVPassport Access. Customer will provide EVPassport (including its authorized representatives and service providers) with access, twenty-four (24) hours per day, seven (7) days per week, and 365/366 days per year to all Charging Stations and any electrical, network, or other equipment utilized by any Charging Station for the purpose of inspecting, upgrading, repairing, and testing the Charging Platform, affixing notices thereto, and otherwise exercising any of its rights and responsibilities under the Order Form. Customer will reasonably cooperate to facilitate EVPassport’s delivery and installation of the Charging Stations and performance of related Services under the Order Form. Customer agrees that it will not interfere with, or cause its employees, contractors, or agents to interfere with, EVPassport in conjunction with the installation, service, maintenance, operations or replacement of Charging Stations, or in any other way interfere with EVPassport’s performance of its responsibilities under the Order Form.
16.7. Operations. Customer will (a) ensure during the Term that the location of each Charging Station continues to comply with the Installation Requirements; (b) promptly notify EVPassport of any Charging Station location that does not comply with the Installation Requirements; (c) use and take reasonable steps to protect the Charging Platform and EVSE against damage (including cosmetic damage and damage affecting the functionality of the Charging Platform) (normal wear and tear excepted); and (d) act in accordance with the user manuals, operator instructions, and other documentation regarding the Charging Platform and EVSE provided or made available by EVPassport hereunder (“EVPassport Documentation”).
16.8. Health and Safety. If Customer becomes aware of any circumstances relating to the Charging Platform that creates an imminent risk of damage or injury to any person or property, Customer shall take prompt action to prevent such damage or injury and shall promptly notify EVPassport. Such action may include disconnecting and removing all or a portion of the Charging Platform or suspending the supply of energy to the applicable Charging Station(s).
17.1. By Customer. By Customer. Customer will obtain and maintain during the Term, at its sole expense, (i) general liability insurance with a combined limit of not less than $1,000,000 per occurrence and $2,000,000 aggregate, (ii) umbrella coverage in the amount of $10,000,000 (where such umbrella policy shall contain a follow-form provision and shall include coverage for personal and advertising injury), (iii) automobile liability insurance covering any vehicle used in providing services under the Order Form, including owned, non-owned, or hired vehicles, with a combined limit of not less than $1,000,000 per occurrence, and (iv) statutory workers’ compensation and employers’ liability insurance requirements per the amount required by statute. The insurance policies listed above shall be issued by insurance companies with a general policyholder’s ratings of at least “A-” in the most current Best’s Insurance Reports available on the Effective Date; if the Best’s ratings are changed or discontinued, the Parties shall agree to a comparable method of rating insurance companies. Upon request, Customer shall furnish to EVPassport a certificate of insurance evidencing such insurance is in full force and effect.
17.2. By EVPassport. EVPassport agrees to maintain the following insurance policies: (i) workers’ compensation insurance coverage meeting or exceeding statutory requirements; and (ii) comprehensive general liability insurance coverage for personal injury, bodily injury, and property damage related to the use, operation, or condition of the Charging Platform, with a combined single limit of at least $2,000,000 per occurrence and in aggregate. EVPassport may fulfill these insurance obligations through a combination of primary and excess coverage policies.
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 the Order Form, and to fully perform its obligations hereunder; (c) it has obtained all necessary corporate approvals for the execution and delivery of the Order Form, the performance of its obligations hereunder, and the consummation of the transactions contemplated hereby; (d) the Order Form is a legal and valid obligation binding upon it and enforceable in accordance with its terms; and (e) it will perform its obligations under the Order Form in compliance with applicable laws, rules, regulations, and ordinances.
19.1. Customer-Requested Branding. At Customer’s written request, EVPassport may utilize the various trademarks, service marks, trade names, logos, domain names, and other distinctive brand features and designations used by Customer in connection with its business (the “Customer Marks”) to customize the Charging Platform, for Customer. Customer hereby grants to EVPassport a non-exclusive, non-transferable, fully paid-up, royalty-free, non-sublicensable (except to EVPassport’s contractors and service providers) license to copy, use, display, distribute, modify and create derivative works of the Customer Marks to brand and make available the Charging Platform for the purpose of performing the Services under this Order Form.
19.2. Name & Logo. EVPassport may use the Customer Marks to identify Customer as an EVPassport customer of the Service, including on EVPassport’s public website and marketing material. EVPassport agrees that any such use shall be subject to any written guidelines that Customer may deliver to EVPassport regarding the use of its name and shall not be deemed Customer’s endorsement of the Services.
19.3. Case Study. Customer agrees to make appropriate representative available for a mutually agreed upon written customer case study that may be published and used in EVPassport marketing collateral.
20.1. EVPassport’s Indemnity to Customer. EVPassport shall indemnify, defend, and hold harmless Customer (including Customer’s permitted successors and assigns) and Customer’s affiliates, subsidiaries, directors, officers, members, shareholders, employees, and agents (collectively, “Customer Indemnified Parties”) from and against any and all third-party claims, losses, judgement, penalty, costs, damages, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”), incurred by Customer Indemnified Parties to the extent caused by (i) EVPassport’s violation of applicable law; (ii) EVPassport’s gross negligence or willful misconduct; (iii) EVPassport’s breach of the Order Form; or (iv) the infringement of intellectual property rights of third parties by EVPassport. EVPassport’s indemnification obligations under this Section shall not extend to any claim caused by or due to (A) the breach of the Order Form by Customer, (B) the gross negligence or willful misconduct of any Customer Indemnified Party or (C) the Customer’s use of the Services or Charging Platform (x) in a modified, unauthorized or unintended form or (y) in combination with third-party technology or materials to the extent that such claim of infringement would have been avoided had such combination not occurred.
20.2. Customer’s Indemnity to EVPassport. Customer shall indemnify, defend, and hold harmless EVPassport (including EVPassport’s successors and assigns) and EVPassport’s parent, affiliates, and subsidiaries, and each of their directors, officers, members, shareholders, employees, and agents (collectively, “EVPassport Indemnified Parties”) from and against any and all Losses incurred by EVPassport Indemnified Parties arising from or relating to (i) Customer’s violation of applicable law; (ii) Customer’s gross negligence or willful misconduct; (iii) Customers breach of the Order Form; (iv) failure by Customer to comply with the Installation Requirements or the EVPassport Documentation, (v) EVPassport’s use of the Customer Data or Customer Marks in accordance with the Order Form, (vi) damages or losses arising from the failure of Customer to maintain power supply, internet or access to Charging Stations, and (vii) events occurring on the Site that were not directly caused by EVPassport (or its agents) or the Charging Platform. Customer’s indemnification obligations under this Section shall not extend to any claim to the extent such claim is due to the breach of the Order Form by EVPassport or the gross negligence or willful misconduct of EVPassport.
20.3. Indemnification Procedure. The indemnified party (“Indemnified Party”) will (i) promptly notify the indemnifying party (“Indemnifying Party”) in writing of any claim or other allegation for which Indemnifying Party is obligated to indemnify Indemnified Party under this Section (each, a “Claim”); (ii) 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 Indemnified Party will have the right to reasonably participate, at its own expense, in the defense or settlement of any such Claim); and (iii) give full assistance and cooperation for the defense of same. No Claim, regardless of form, arising out of the Order Form may be brought by Customer more than two (2) years after the cause of such Claim arose.
21.1. Limitation of Liability. EXCEPT AS PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL EVPASSPORT BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION FOR THE LOSS OF DATA, BUSINESS INTERRUPTION, OR LOST PROFITS, THAT IN ANY WAY ARISE OUT OF OR RELATE TO THE ORDER FORM, REGARDLESS OF THE THEORY OF RELIEF, WHETHER OR NOT EVPASSPORT 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. EVPASSPORT’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THE ORDER FORM SHALL NOT EXCEED THE AGGREGATE AMOUNT OF FEES PAID BY CUSTOMER TO EVPASSPORT UNDER THE ORDER FORM DURING THE PRECEDING TWELVE MONTHS.
21.2. Independent Allocations of Risk. EACH PROVISION OF THE ORDER FORM THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THE ORDER FORM BETWEEN THE PARTIES. EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
Customer acknowledges that all terms and conditions of the Order Form (the “Confidential Information”) shall be deemed confidential and may not be disclosed to third parties. Customer recognizes that EVPassport has legitimate business interests in protecting the Confidential Information, and as a consequence, Customer expressly agrees to the restrictions contained in the Order Form because they further EVPassport’s legitimate business interests. Notwithstanding anything in the Order Form to the contrary, Customer may disclose Confidential Information: (i) as required by any court or other governmental body; (ii) as otherwise required by law; (iii) to legal counsel of Customer; (iv) in confidence, to accountants, banks and financing sources, and its advisors (who are bound by terms of confidentiality at least as strict as those set forth in the Order Form); or (v) in connection with the enforcement of the Order Form or rights under the Order Form; provided, however, that if Customer is required to disclose pursuant to clause (i) or (ii), Customer shall provide prompt prior notice thereof, if possible, to EVPassport to enable EVPassport at its sole cost to seek a protective order or otherwise prevent or restrict such disclosure. Customer acknowledges that any breach of this Section may cause irreparable harm and injury to EVPassport for which there is no adequate remedy at law.
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 the Order Form 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 Administration Regulations of the United States Department of Commerce.
24.1. Governing Law; Submission to Jurisdiction. The Order Form shall be governed by the laws of the State of Delaware, including its statutes of limitation, without regard to conflicts-of-law principles. Each of the Parties hereto hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the state courts located in Wilmington, Delaware and the federal courts of the United States of America located in New Castle County, Delaware for any litigation among the Parties hereto arising out of or relating to the Order Form, or the negotiation, validity or performance of the Order Form, waives any objection to the laying of venue of any such litigation in the aforementioned courts and agrees not to plead or claim in any of the aforementioned courts 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 such courts. The Parties waive any objections to venue in these courts, including claims of inconvenience or the absence of indispensable parties. The Order Form, and any disputes related to the Order Form, will be governed without regard to conflicts of laws rules or the United Nations Convention on the International Sale of Goods.
24.2. Dispute Resolution.
24.2.1. Negotiation and Mediation. EVPassport and Customer will first endeavor to resolve through good faith negotiations any dispute arising under the Order Form. If a dispute cannot be resolved through good faith negotiations within a reasonable time, either Party may request non-binding mediation by a mediator approved by both Parties or, absent that approval, by the National Center for Dispute Resolution, to be conducted in Los Angeles County, California. The costs and fees of the mediator and the mediation service provider shall be borne equally by the Parties, unless otherwise agreed.
24.2.2. Arbitration. If mediation fails to resolve the dispute within thirty (30) days after the first mediation session, or if a Party refuses to engage in mediation following good faith attempts to mediate, either Party may submit the dispute to binding arbitration by notice to the other Party. The arbitration proceedings will be conducted, and a single arbitrator will be selected, in accordance with the rules of the National Center for Dispute Resolution or other rules mutually agreed upon in writing by the Parties, and will be governed by the United States Arbitration Act, 9 U.S.C. Sections 1-15, and this Section 24.2.2. The arbitration will be conducted in Los Angeles, California. The arbitrator will issue a written opinion setting forth the basis for the arbitrator’s decision, which may include an award of legal fees and costs. The arbitrator’s award will be final and non-appealable absent fraud or manifest error, and judgment on the arbitrator’s award may be entered in any court having jurisdiction. While arbitration proceedings are pending, the Parties will continue to perform their obligations under the Order Form without setoff for any matters being contested in the arbitration proceedings. Notwithstanding the foregoing, either Party may seek temporary or preliminary injunctive relief in a court of competent jurisdiction to prevent immediate and irreparable harm before arbitration is initiated. Pending resolution of any dispute, the Parties shall continue performing their obligations under the Order Form, without setoff for amounts in dispute.
24.2.3. Litigation. The Parties have selected binding arbitration as the sole means to resolve a dispute between them over monetary claims that cannot be resolved through mediation. Either Party may pursue through litigation in any court of competent jurisdiction claims to the extent such claims also involve third parties who have not consented to arbitration, claims in litigation commenced by third parties, and claims for emergency relief, injunctive relief, specific performance or other non-monetary relief.
24.2.4. Additional. All claims shall be brought in the Parties’ individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. The prevailing party in any dispute arising out of the Order Form shall be entitled to reasonable attorneys’ fees and costs.
24.3. Injunctive Relief. The Parties recognize that the obligations under the Order Form are special, unique and of extraordinary character. The Parties acknowledge the difficulty in forecasting damages arising from the breach of any of the obligations or restrictive covenants and that the non-breaching Party may be irreparably harmed thereby. Therefore, the Parties agree that the non-breaching Party shall be entitled to elect to enforce each of the obligations and restrictive covenants by means of injunctive relief or an order of specific performance and that such remedy shall be available in addition to all other remedies available at law or in equity, including the recovery of damages from the non-breaching Party’s agents or affiliates involved in such breach. In such action, the non-breaching Party shall not be required to plead or prove irreparable harm or lack of an adequate remedy at law or post a bond or any security.
24.4. Cumulative Remedies. The rights and remedies provided by the Order Form are cumulative and the use of any one right or remedy by any Party shall not preclude or waive its right to use any or all other remedies. Said rights and remedies are given in addition to any other rights the Parties may have by law, statute, ordinance or otherwise.
24.5. Relationship of the Parties. Nothing in the Order Form 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 the Order Form 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.
24.6. Third-Party Beneficiaries; Assignment. The Order Form is for the sole benefit of the Parties thereto and their respective successors and nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the terms and conditions set forth in the Order Form. The Order Form may be assigned by Customer subject to the prior written consent of EVPassport. Notwithstanding the foregoing, Customer may assign the Order Form in connection with the sale of substantially all of its assets, a transfer to an affiliate, a merger, an acquisition, or any other similar transaction; provided that the assignee agrees to be bound by the terms of the Order Form and expressly assumes all of Customer’s obligations and liabilities under the Order Form. Notwithstanding anything to the contrary herein, EVPassport may assign its rights and obligations in and under the Order Form, at its sole discretion, without consent, to a corporation or other business entity succeeding to all or substantially all the assets and business of EVPassport, including any sale of EVPassport’s electric vehicle service provider business, by merger or purchase, subject to EVPassport’s provision of written notice thereof to Customer.
24.7. Waiver. The failure of either Party to enforce any right or remedy provided in the Order Form or by law on a particular occasion will not be deemed a waiver of that right or remedy on a subsequent occasion or a waiver of any other right or remedy.
24.8. Force Majeure. Each Party will be excused from performance for any period during which, and to the extent that, it is prevented from performing its obligations under the Order Form, 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, 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. Notwithstanding the foregoing, the obligation to make payments for services rendered or goods delivered shall continue unabated, and such payment obligations shall not be affected by any Force Majeure Event.
24.9. Severability. A finding that any provision of the Order Form is invalid or unenforceable in any jurisdiction will not affect the validity or enforceability of any other provision of the Order Form or the validity or enforceability of that provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the Parties hereto will negotiate in good faith or the court may, under applicable circumstances, modify the Order Form 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.
24.10. Survival. The provisions of the Order Form which, by their nature or terms, are intended to survive the termination, cancellation, or expiration of the Order Form shall so survive. Without limiting the generality of the foregoing, the following provisions shall survive: Section 9 (Limited Warranty), Section 20 (Indemnification), Section 22 (Confidentiality), Section 24.4 (Cumulative Remedies), Section 24.5 (Relationship to the Parties), Section 24.6 (Third Party Beneficiaries; Assignment), Section 24.7 (Waiver), Section 24.9 (Severability), Section 24.15 (Interpretation), and Section 24.10 (Survival), along with any other terms that expressly or by their nature contemplate performance or application after the termination or expiration of the Order Form. Expiration or termination of the Order Form will not relieve any Party of any obligations previously having accrued hereunder for the payment of any fees or other monetary obligations.
24.11. Notices. All notices, requests, consents, claims, demands, waivers and other communications required to be given or otherwise given pursuant to the Order Form (each, a “Notice”) shall be in writing as follows:
If to EVPassport: via overnight certified mail through a recognized U.S. carrier (return receipt requested) be provided in writing to the following recipient, which shall be deemed delivered and effective on the date of delivery shown on the return receipt or proof or receipt:
EVPassport LLC
ATTN: EVPassport Legal Department
3130 Wilshire Blvd. (Suite #340)
Santa Monica, CA 90403
If to Customer, to either: (i) via electronic mail to either the address indicated by Customer in Customer’s EVPassport account or the Order Form; or (ii) the billing address and contact on file.
24.12. Headings. The headings in the Order Form are used for convenience only and will not be used to limit or describe the scope of the Order Form or any of the obligations herein.
24.13. Exhibits. All exhibits attached to the Order Form and referred to therein are hereby incorporated by reference as if fully set forth therein. Any exhibit not annexed thereto may be attached after the Effective Date, which shall thereafter be incorporated by reference therein, only upon written agreement by the Parties.
24.14. Currency Denomination. All amounts set forth in the Order Form, including but not limited to payments, fees, costs, and any other monetary obligations, are expressed and shall be payable in United States Dollars (USD), unless expressly stated otherwise in the Order Form.
24.15. Interpretation. The Parties acknowledge that they have read the Order Form, have had the opportunity to review it with an attorney of their respective choice, and have agreed to all of its terms. Under these circumstances, the Parties agree that the rule of construction that a contract be construed against the drafter shall not be applied in interpreting the Order Form, and that in the event of any ambiguity in any of the terms or conditions of the Order Form, including any exhibits hereto, and whether or not placed of record, such ambiguity shall not be construed for or agist either Party on the basis that such Party did or did not author the same. In the Order Form: (a) words in the singular shall be deemed to include the plural and vice versa and words of one gender shall be deemed to include the other genders as the context requires; (b) the words ‘and’ and ‘or’ shall be construed conjunctively and disjunctively as necessary to give full effect to the intent of the Parties; (c) ‘or’ shall not be interpreted to be exclusive unless expressly stated (i.e., ‘A or B’ means ‘A or B or both’ unless the context expressly dictates otherwise);the terms “hereof,” “herein,” and “herewith” and words of similar import shall, unless otherwise stated, be construed to refer to the Order Form as a whole (including all of the Schedules hereto) and not to any particular provision of the Order Form; (d) Article, Section and Schedule references are to the Articles, Sections and Schedules to the Order Form unless otherwise specified; (e) unless otherwise stated, all references to any agreement shall be deemed to include the exhibits, schedules and annexes to such agreement; (f) the word “including” and words of similar import when used in the Order Form shall mean “including, without limitation,” unless otherwise specified; (g) the word “or” shall not be exclusive; (h) unless otherwise specified in a particular case, the word “days” refers to calendar days; (i) references to “business day” shall mean any day other than a Saturday, a Sunday or a day on which banking institutions are generally authorized or required by law to close in the United States or New York, New York; and (j) references herein to the Order Form or any other agreement contemplated herein shall be deemed to refer to the Order Form or such other agreement as of the date on which it is executed and as it may be amended, modified or supplemented thereafter in accordance with the terms thereof, unless otherwise specified.
24.16. Entire Agreement. The Order Form constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior negotiations, understandings and agreements between the Parties, whether written or oral regarding such subject matter. The Order Form may be amended, supplemented or changed only by an agreement in writing signed by both Parties. 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 the Order Form, will be of no force and effect, unless the Parties hereto agree in writing, in advance, to such terms and conditions. No waiver by any Party of any of the provisions of the Order Form will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in the Order Form, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from the Order Form 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.
24.17. Modification; Amendments. EVPassport may, from time to time, make revisions to or amend these Terms and Conditions (“Revisions”). Revisions will be effective immediately except that material Revisions will be effective thirty (30) days after posting or notice to Customer of the Revisions unless otherwise stated. Except as expressly permitted in this Section, the Order Form may be amended only by a written agreement signed by authorized representatives of the Parties.
24.18. Order of Precedence. In the event of any inconsistency or conflict between conflicting provisions then the provisions shall prevail in the following descending order of precedence: (i) Order Form; then (ii) Terms and Conditions.
24.19. Further Assurances. Each Party agrees to execute (and acknowledge, if requested) and deliver additional documents and instruments and to perform additional acts as may be reasonably necessary or appropriate to effectuate, carry out, and perform all of the terms, provisions and conditions of the Order Form.
24.20. Counterparts. The Order Form 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.
