HomeMy WebLinkAbout1479 - Chargepoint America�C 1877 -9
TRANSMITTAL MEMORANDUM
M E MORANDUM
To: City Clerk
RE: Request for Services
The item(s) noted below is /are attached and forwarded to your office for the following action(s):
❑ Development Order
❑ Mayor's signature
❑ Final Plat (original mylars)
❑ Recording
❑ Letter of Credit
❑ Rendering
❑ Maintenance Bond
Safe keeping (Vault)
❑ Ordinance ❑
❑ Performance Bond
❑ Resolution
ChargePoint America Charge Station Participation Agreement
Once completed, please:
❑ Return original
❑ Return copy
Special Instructions:
Please retain for the official file.
Please advise if you have any questions regarding the above.
Thank you! �.
Nicholas Mcray, Economic Development Director
From
January 27, 2012
Date
\ \SVCH- Omnicast \USERS \mcrayn \Templates \City Clerk Transmittal Memo.doc
Coulomb
Technologies
January 11, 2012
FEDEX EXPRESS SAVER
Mr. Russ Gibson
Planning and Development Services Director
City of Sanford
300 N. Park Avenue
Sanford, FL 32771
407.688.5142
Dear Mr. Gibson:
Please find enclosed a fully executed original ChargePoint Award Agreement and Master Services
Subscription Agreement between City of Sanford and Coulomb Technologies for your files.
If you have any questions, please feel free to contact me at 408.841.4554.
Sincerely,
Sharlyne Anima
ChargePoint America
Program Administrator
408.841.4554
sharlyne.anima@coulombtech.com
/sa
Enclosures
Coulomb Technologies Inc. • 1692 Dell Ave • Campbell, CA 95008 -6901
•
Coulomb
Technologies
June 21, 2011
Mr. Russ Gibson
Planning and Development Services Director
City of Sanford
300 N. Park Avenue
Sanford, FL 32771
Dear Mr. Gibson:
•
ChargeP #int
America
Congratulations! Your organization has been awarded one or more Coulomb Technologies,
Inc. electric vehicle charging station(s) under the ChargePoint America TM Program. The
Program has been funded in part under the terms of Grant number DE- EE0003391 from the
United States Department of Energy as part of the American Reinvestment and Recovery Act.
In order to receive delivery of the Charging Station(s), you must agree to all of the terms and
conditions following. Furthermore, you need to:
1. Countersign at the end of this letter and provide a copy of it back to Coulomb or to the
local Coulomb distributor.
2. Provide a $0 PO to Coulomb Technology for the charging station(s). Please make
sure the part numbers on the order correspond to the part numbers on this letter and
you provide a requested shipment date, ship to address with a contact name, phone
number, and email address.
3. Sign and return the attached Master Services Support Agreement.
4. Please familiarize yourself with the Contractor Installation Guide. Providing proper
documentation of the charger installation to Coulomb is a requirement of the Grant.
Coulomb's authorized installers are compliant with the reporting requirements and will
complete the cost documentation reports on your behalf.
5. Return the documents within 30 days of the date of this award letter.
Please note that delivery of the charging systems will be up to 6-8 weeks of receipt of PO and
associated signed documents. CTI is reaching the end of its quota of stations in this
program. Allocation of the remaining stations will be at the discretion of CTI primarily based
on date of receipt of completed paperwork. We appreciate your participation in this exciting
program and look forward to creating an electric vehicle charging infrastructure in your area.
Best regards,
l
t 1. - ..
Scott Miller
Eastern Region Director
ChargePoint America Program
Coulomb Technologies
Y
Coulomb Technologies, Inc. • 1692 Dell Ave. • Campbell, CA 95008 -6901
a I ChargeP #int
Technologies America
CHARGEPOINT AMERICATM STATION AWARD AGREEMENT
Charging Stations. Your organization ( "You ") has been awarded, and may be
awarded from time to time, one or more Coulomb Technologies, Inc. ( "CTI ") electric
vehicle charging stations under the ChargePoint America TM Program . The Program
has been funded in part under the terms of Grant number DE- EE0003391 from the
United States Department of Energy (the "DOE ") as part of the American Reinvestment
and Recovery Act ( "ARRA "). The charging stations will be installed at the locations
specified on Appendix A, as amended from time to time to reflect the award of
additional Charging Stations under this Station Award Agreement.
Product
Product Description
Product
Quantity
Unit
Total
Name
Code
Price
Price
CT2101 C-
Dual 208/240 -30A &
CT2101 C-
5
$0.00
$0.00
CDMA-
120V -12A Bollard with
CDMA -
LOCK-CCR
CDMA, locking holster,
LOCK -CCR
and credit card reader
Grand $0.00
Total:
2. Shipment and Delivery. CTI will pay for the cost of standard delivery charges of the
Charging Stations to the locations designated by You in writing to CTI. CTI shall
choose the method by which Charging Stations are to be delivered. If You desire
expedited delivery, You will be responsible for the payment of all delivery charges.
3. Installation.
(a) Installation of the Charging Stations shall be at your sole cost and expense.
Unless specifically agreed in writing, installation of the Charging Stations may only be
performed by a CTI Authorized Installer. Should You wish to use your own installer,
you shall request CTI's permission, in its reasonable discretion, to do so no more than
fifteen (15) days prior to the scheduled installation date. You should be aware, certain
requirements must be met by all contractors and subcontractors working to install
electric vehicles station equipment (EVSE) as part of the Grant. The Davis Bacon and
Related Acts (DBRA) requires all contractors and subcontractors performing work on
federal construction contracts or federally assisted contracts to pay their laborers and
mechanics not less than the prevailing wage rates and fringe benefits for
corresponding classes of laborers and mechanics employed on similar projects in the
area. The prevailing wage rates and fringe benefits are determined by the Secretary of
Labor. For the ChargePoint America program, construction includes all alterations,
improvements and /or repair, including painting and decorating, performed on a site in
performance of the installation of EVSE. In addition, because the Charging Stations
are being awarded to You under a Federal program, in the event You use your own
Coulomb Technologies, Inc. • 1692 Dell Ave. • Campbell, CA 95008 -6901
a Coulomb ChargeP #int
Technologies America
installer, such installer shall become subject to certain audit and other rights granted to
the United States government and to CTI. Also, should you be authorized to use your
own contractor to install the charging stations, the contractor will be required to submit
to CTI or the applicable CTI Distributor within 5 days of the installation, the applicable
DBRA related paperwork including (i) a certified payroll or a properly filled out US
government form wh -347 and (ii) an invoice or receipt for the work done to install the
charging station(s) including costs for panel rework, trenching, concrete pad
placement, fixing the station, and electrical wiring. Furthermore, you shall indemnify
and hold harmless CTI from all costs (including, without limitation, reasonable
attorneys' fees), losses, charges, fees, fines and other expenses of any sort
whatsoever, including, without limitation, the refusal of the DOE to provide
reimbursement to CTI in respect of the Charging Stations awarded to you, incurred by
CTI as a result of such installer's (i) failure to comply with any applicable law, including,
without limitation, the Davis -Bacon Act or (ii) failure to provide CTI such documentation
as is reasonably needed by it to comply with applicable DOE requirements.
(b) You agree to cause the installation of the Charging Stations, and the provision of
such Charging Stations on the ChargePoint Network, within forty five (45) days of their
delivery to You. In the event that the Charging Stations have not been installed by the
expiration of such forty five day period, CTI reserves the right to reclaim the Charging
Stations. In the event that You are having trouble arranging for the installation of the
Charging Stations by an Authorized Distributor or an installer chosen by such
Authorized Distributor, please contact CTI as soon as possible so that it can assist you
in obtaining prompt installation of the Charging Stations.
(c) The Charging Stations are not to be removed from their packaging by any person
other than the Installer.
4. Warranty /Limitation of Liability. (a) Warranty. The Charging Station is covered by
the terms of CTI's standard Warranty (the "Warranty ") for a period beginning on the
date of installation and running until December 31, 2013. A copy of the Warranty is
included with this agreement. All applicable warranties with respect to the Charging
Station are set forth in the Warranty, and are hereby incorporated by reference into this
Agreement. (b) Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN
THIS SECTION 4 AND IN THE WARRANTY, CTI MAKES NO WARRANTY WITH
RESPECT TO THE PERFORMANCE OF THE CHARGING STATION, THE
CHARGEPOINTTM NETWORK STANDARD SERVICES OR THE CHARGEPOINTTM
NETWORK, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. CTI
EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF NON - INFRINGEMENT OF THIRD
PARTY RIGHTS BY THE CHARGING STATION, MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE. CTI DOES NOT WARRANT UNINTERRUPTED
OR ERROR FREE OPERATION OF THE CHARGING STATION. (c) Limitation of
Liability. (i) REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN
FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL CTI BE
LIABLE FOR ANY LOST REVENUE OR PROFIT, LOST OR DAMAGED DATA,
BUSINESS INTERRUPTION, LOSS OF CAPITAL, OR FOR SPECIAL, INDIRECT,
Coulomb Technologies, Inc. • 1692 Dell Ave. • Campbell, CA 95008 -6901
a I ChargeP #int
Technologies America
CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED
AND REGARDLESS OF THE THEORY OF LIABILITY OR WHETHER ARISING OUT
OF THE USE OF OR INABILITY TO USE THE CHARGING STATION, THE
CHARGEPOINTTm NETWORK, ANY CHARGEPOINTTm NETWORK SERVICES, OR
OTHERWISE OR BASED ON ANY EXPRESSED, IMPLIED OR CLAIMED
WARRANTIES BY YOU NOT SPECIFICALLY SET FORTH IN THIS ADDENDUM.
BECAUSE SOME STATES OR JURISDICITON DO NOT ALLOW LIMITATION OR
EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE
LIMITATION MAY NOT APPLY. (ii) YOUR SOLE REMEDY FOR ANY BREACH BY
CTI OF ITS OBLIGATIONS OR WARRANTIES UNDER THIS AGREEMENT SHALL
BE LIMITED TO, AT CTI'S OPTION, REPAIR OR REPLACEMENT OF THE
CHARGING STATION. (d) Warranty Exclusions. Exclusive Remedies. THE
REMEDIES CONTAINED IN SECTION 4 ARE YOUR SOLE AND EXCLUSIVE
REMEDIES AND ARE IN LIEU OF ANY OTHER RIGHTS OR REMEDIES YOU MAY
HAVE AGAINST CTI WITH RESPECT TO THE PERFORMANCE OF THE
CHARGING STATIONS, THE CHARGEPOINTTm NETWORK STANDARD SERVICES
OR THE CHARGEPOINTTm NETWORK.
5. Access to the Public. All of the Charging Stations will be installed in a manner and in
locations that make them available for access and use by the general public. The
Charging Stations, and the facilities in which they are located, shall be kept clean and
in good repair. You shall promptly call CTI or an Authorized Distributor in order to
arrange for the repair of any non - functioning Charging Stations.
6. Network Access. As a part of the award, You will receive a free subscription for
ChargePointTm Network Standard Service, as defined in the ChargePointTM Master
Services Subscription Agreement (the "Master Services Agreement "), that will expire
December 31, 2013 (the "Subscription Period "). You must execute a copy of the
Master Services Agreement as a part of your obligations under this ChargePoint
America TM Station Award Agreement and must keep the Charging Stations connected
to the ChargePointTm Network throughout the entire Subscription Period. CTI offers
various other services, such as billing services, which may be accessed through the
ChargePoint Network TM. All of such services are subject to CTI's standard terms and
conditions.
7. Access to Information. In consideration of your receipt of the Charging Stations and
free subscription to ChargePointTm Network Standard Service, you agree to provide
and release to CTI, the DOE, such other participants and partners of CTI in the
Program as CTI shall determine necessary, all data and information relating to You,
Your electric vehicles, if any, and their use, the use by others of Your Charging
Stations and Your use of the Charging Stations and any public Charging Stations and
infrastructure (the "Data "). You acknowledge and agree that the Data may be used by
any of the above - described persons for any purpose, including analyzing Your use and
charging patterns, the public's use of Your Charging Stations, the effectiveness of
infrastructure put in place to meet the needs of drivers of electric vehicles, and the
efficacy of the Program. Your performance of this Agreement and willingness to supply
and release Data to the persons described in the immediately preceding paragraph is a
Coulomb Technologies, Inc. • 1692 Dell Ave. • Campbell, CA 95008 -6901
0
Coulomb
Technologies
0
ChargeP #int
America
material condition to CTI's willingness to enter into this Agreement with You and
provide the Charging Stations hereunder. You understand, acknowledge and agree
that CTI will need Your reasonable cooperation and assistance, and You agree to
provide your reasonable cooperation and assistance to CTI, so that CTI can
successfully conduct its testing and collect Data from You, the Charging Stations, and
public electric vehicle infrastructure utilized by You and others. Except as set forth in
this Section 7, the use of the Charging Stations will be subject to CTI's standard
privacy policy (the "Privacy Policy "). The Privacy Policy is located on CTI's web site
and may be accessed at: http: / /www.coulombtech.com /privacy- policy.php
Notwithstanding anything to the contrary contained in this Section 7, or in the Privacy
Policy, CTI reserves the right, on behalf of the DOE, to collect certain anonymous
information regarding the use and operation of the Charging Stations.
8. Certain Rights of the United States Government. Notwithstanding the fact that You
are being awarded the Charging Stations under the Program, the United States
Government reserves the right to seize the Charging Stations under certain, limited
circumstances, including, without limitation, national emergency.
9. No Right to Remove, Move or Sell the Charging Stations. The Charging Stations
may not be removed, moved or sold from their place of installation, prior to January 1,
2014, without the prior written consent of CTI.
10. Failure to Comply with Terms of the Program. In the event that You fail to comply
with the terms of the program, including, but not limited to (i) the use of an CTI
authorized installer (ii) providing documentation of the installation costs (iii) allowing
public access to the station(s), You are liable for losses and /or damages incurred by
CTI. If You fail to comply with the program or make restitution within 30 days of
receiving a demand notice from CTI, CTI reserves the right to repossess the charging
station(s) You received under the grant.
11. Additional Charging Stations. In the event that You have purchased Charging
Stations that are to become a part of the Program, CTI's standard terms and conditions
shall apply.
12. No Amendment or Modification. No modification, amendment or waiver of this
Agreement shall be effective unless in writing and either signed or electronically
accepted by the party against whom the amendment, modification or waiver is to be
asserted.
13. Waiver. CTI's failure at any time to require your performance of any obligation under
this Agreement will in no way affect the full right to require such performance at any
time thereafter. CTI's waiver of a breach of any provision of this Agreement will not
constitute a waiver of the provision itself. CTI's failure to exercise any of its rights
provided in this Agreement will not constitute a waiver of such rights. No waiver will be
effective unless in writing and signed by a CTI authorized representative. Any such
waiver will be effective only with respect to the specific instance and for the specific
purpose given.
Coulomb Technologies, Inc. • 1692 Dell Ave. • Campbell, CA 95008 -6901
Coulomb
Technologies
L.J
ChargePoint
America
14. Applicable law. This Agreement will be construed, and performance will be
determined, according to the laws of the State of California without reference to such
state's principles of conflicts of law and the state and federal courts of California shall
have exclusive jurisdiction over any claim arising under this Agreement.
15. Waiver of Jury Trial. You and CTI each hereby waive any right to jury trial in
connection with any action or litigation arising out of this Agreement.
16. Severability. Except as otherwise specifically provided herein, if any term or condition
of this Agreement or the application thereof to either You or CTI will to any extent be
determined by any judicial, governmental or similar authority, to be invalid or
unenforceable, the remainder of this Agreement, or the application of such term or
provision to this Agreement, You and CTI or circumstances other than those as to
which it is determined to be invalid or unenforceable, will not be affected thereby.
17. Assignment. You may not assign any of your rights or obligations under this
Agreement, whether by operation of law or otherwise, without the prior written consent
of CTI.
18. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which, taken together, shall constitute but
one and the same document.
19. Availability of Free Stations - There is a limited number of free charging stations in
the program. Receipt of this ChargePoint America Station Award Agreement does not
guarantee your organization a free station. Allocation of remaining stations is at the
sole discretion �I but is based primarily on date of receipt of signed documents.
COULOMB JECWOVOGIE$, INC.
AN
Name:
AWARDEE:
By:
(Signature)
Name: /J % C1 to S AA c✓�►
Title: C4 Title:
Coulomb Technologies, Inc. • 1692 Dell Ave. • Campbell, CA 95008 -6901
a I ChargeP #int
Technologies America
APPENDIX A — CHARGING STATION LOCATIONS
Station #1 —Welcome Center - 230 East 1 st Street, Sanford, FL
Station #2 — Fort Mellon Park - 600 East 1st Street, Sanford, FL, Sanford, FL
Station #3 — Park and First - Park Avenue at First Street, Sanford, FL
Station #4 — Palmetto and First - Palmetto Avenue and East First Street, Sanford, FL
Station #5 - Hood and Seminole - Seminole Boulevard at Hood Avenue, Sanford, FL
Coulomb Technologies, Inc. • 1692 Dell Ave. • Campbell, CA 95008 -6901
ChargePoint America Purchase Order
I, the undersigned, agree to purchase the following items at the designated prices per the ChargePoint
America Award Letter dated 6 -2 (- It
Product
Product Description
Product Code
Quantity
Unit Price
Total Price
Name
CT2101C-
Dual 208/240 -30A & 120V-
CT2101C-
`�
$0.00
$0.00
CDMA -LOCK-
12A Bollard with CDMA,
CDMA - LOCK -
/
CCR
locking holster, and credit
CCR
card reader
Grand Total: $0.00
Please ship the charging system(s) to the following address:
C i �L o F SAn T,
goo w• /- r
SA-v'LFvrd- , FL
Contact Name at ship to address: A/ tc� MG✓`
Contact Phone at ship to address: 4 /� ?. 6 :;A - Sots
Contact email at ship to address: 114ceay ei
Date you desire to receive unit 11�S4 P
I agree on behalf of my organization to the terms and conditions in the ChargePoint America Award
Letter and the Master Services Subscription Agreement provided to me.
Signed:
Name: /Vic1r
Title: 6 ' , .AA4yiic
Organization: C 1 Giph,.�.>2
Date: 9'. 7 . 1/
• •
CHARGEPOINT
MASTER SERVICES SUBSCRIPTION AGREEMENT
IMPORTANT: PLEASE READ THIS MASTER SERVICES SUBSCRIPTION AGREEMENT ( "AGREEMENT')
CAREFULLY.
THIS AGREEMENT GOVERNS REGISTRATION OF YOUR CHARGING STATION ON THE CHARGEPOINT
NETWORK AND ACTIVATION OF CHARGEPOINT NETWORK SERVICES. SUBSCRIBING FOR A
CHARGEPOINT NETWORK SERVICE CONSTITUTES ACCEPTANCE OF ALL OF THE TERMS AND
CONDITIONS OF THIS AGREEMENT AND IS BINDING ON YOU AND THE BUSINESS ENTITY YOU
REPRESENT (COLLECTIVELY, "SUBSCRIBER" OR "YOU").
YOU MAY NOT ACCESS THE CHARGEPOINT SERVICES IF YOU ARE A DIRECT COMPETITOR OF CTI
EXCEPT WITH CTI'S PRIOR WRITTEN CONSENT. IN ADDITION, YOU MAY NOT ACCESS THE
CHARGEPOINT SERVICES FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE OR
FUNCTIONALITY, OR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSE.
1. DEFINITIONS The following terms shall have the definitions set forth below when used in this
Agreement:
1.1 "Affiliate" means any entity which directly or indirectly controls, is controlled by, or is
under common control with the subject entity. "Control ", for purposes of this definition, means direct
or indirect ownership or control of fifty percent (50 %) or more of the voting interests of the subject
entity.
1.2 "ChargePass''A RFID Card" means a CTI provisioned radio - frequency identification card
issued to a ChargePass Account Holder which permits a User of such card access to the ChargePoint
Network for the delivery of Subscriber - provided services and the ChargePass Account Holder to use the
ChargePoint Network to manage their ChargePass Account.
1.3 "ChargePass Account' means an account registered with CTI that permits a User to
prepay for access to Networked Charging Stations utilizing a ChargePass RFID Card.
1.4 "ChargePass Account Holder" means a User who has registered with the Network
Operator and created a ChargePass Account.
1.5 "ChargePoint Network" means the Network Operator provisioned software, firmware,
hardware (excluding Charging Stations owned and registered by Subscribers) and services for
Subscribers and Users that, among other things, provision, manage, and allow access to Networked
Charging Stations by ChargePass Account Holders via the RFID Card and by other Users via the
utilization of contactless RFID embedded credit cards, or authorized credit or electronic debit card
transactions and permit Subscribers to register, activate, monitor and operate Charging Stations.
1.6 "ChargePoint Network Standard Service" means the bundled group of ChargePoint
Services that assist in the basic operation of the Networked Charging Stations. The ChargePoint
Network Standard Service is required to be subscribed to by Subscriber in order to register and activate
a Charging Station on the ChargePoint Network.
1.7 "ChargePoint Services" means the ChargePoint Network support services and
ChargePoint software applications, as such may be introduced and made available to Subscribers by the
Network Operator from time to time, which provide network support and functionalities for Users and
Subscribers and allow Subscribers, among other things, to monitor and control Networked Charging
Stations. ChargePoint Services, including, but not limited to, the ChargePoint Network Standard Service,
12 -14 -10
• •
are made available for subscription by Subscribers pursuant to Purchase Orders entered into between
Subscriber and CTI.
1.8 "Charging Session" has the same definition as "Session" set forth below.
1.9 "Charging Station" means the electric vehicle charging station(s) installed by Subscriber
at the Subscriber Location(s), either manufactured by CTI or by another entity, which have embedded
within them CTI proprietary hardware and firmware, enabling Subscriber to register and activate such
charging stations on the ChargePoint Network. A charging station may be designated by a Subscriber as
a Commercial Charging Station or a Free Charging Station, a Public Charging Station or a Private Charging
Station and such designations may be changed at any time with respect to any Networked Charging
Station(s) utilizing the ChargePoint Network Standard Service.
1.10 "Commercial Charging Station" means a Charging Station that is designated by the
Subscriber as one where Users must pay a Session Fee for access to the Charging Station.
1.11 "CTI" means Coulomb Technologies, Inc., a Delaware corporation.
1.12 "CTI Marks" means the various trademarks, service marks, names and designations
used in connection with the CTI manufactured Charging Stations and /or the ChargePoint Network,
including, without limitation, ChargePoint and ChargePass.
1.13 "CTI Intellectual Property" means all intellectual property of CTI relating to the CTI
Marks, the ChargePoint Network, the ChargePoint Services, ChargePass, ChargePass RFID Cards,
ChargePass Accounts and all other Intellectual Property Rights of CTI.
1.14 "Documentation" means written information (whether contained in user or technical
manuals, product materials, specifications or otherwise) pertaining to ChargePoint Services and /or the
ChargePoint Network and made available by the Network Operator to Subscribers and /or Users in any
manner (including on- line).
1.15 "Free Charging Station" means a Charging Station that is designated by the Subscriber
as one where Users do not pay a Session Fee for access to the Charging Station.
1.16 "Intellectual Property Rights" means all intellectual property rights, including, without
limitation, patents, patent applications, patent rights, trademarks, trademark applications, trade names,
service marks, service mark applications, copyrights, copyright applications, franchises, licenses,
inventories, know -how, trade secrets, Subscriber lists, proprietary processes and formulae, all source
and object code, algorithms, architecture, structure, display screens, layouts, inventions, development
tools and all documentation and media constituting, describing or relating to the above, including,
without limitation, manuals, memoranda and records.
1.17 "Malicious Code" means viruses, worms, time bombs, Trojan horses and other malicious
code, malware, spyware, files, scripts, agents or programs.
1.18 "Net Session Fees" means all Session Fees actually collected on behalf of the Subscriber
from Users by Network Operator for use of Networked Charging Stations less Session Authorization Fees
and Session Processing Fees, as well as any Taxes and Regulatory Charges, if any, required by law to be
collected by CTI from Users in connection with the use of Networked Charging Stations. Except as
required by law, Subscriber shall be responsible for the payment of all Taxes and Regulatory Charges
incurred in connection with the Networked Charging Stations.
Page 2 of 17
12 -14 -10
•
1.19 "Networked Charging Station" means a Charging Station for which a Subscriber has
subscribed for the ChargePoint Network Standard Service and registered and activated such Charging
Station on the ChargePoint Network.
1.20 "Network Operator" means the entity responsible for provisioning, managing and
maintaining the ChargePoint Network and offering ChargePoint Services. CTI is the Network Operator in
North America but is permitted at any time to assign its rights and obligations as Network Operator
under this Agreement to another entity.
1.21 "Network Web Portal" means any of the secure Internet web portals established and
maintained by the Network Operator which will allow (i) Subscriber through its Subscriber Accounts to
access ChargePoint Services for the management and control of Subscriber's Networked Charging
Stations and (ii) ChargePass Account Holders through their respective ChargePass Accounts to track their
use of Networked Charging Stations, replenish ChargePass RFID Cards and otherwise manage their
ChargePass Account.
1.22 "Party" means the Network Operator and Subscriber.
1.23 "Private Charging Station" means a Charging Station for which access by the general
public is restricted (e.g., a Charging Station located in a private parking facility or restricted corporate
campus).
1.24 "Public Charging Station" means a Charging Station that is accessible by any User
subject only to stated hours of operation.
1.25 "Purchase Order" means the purchase order(s) or other documentation entered into
between Subscriber and the Network Operator, its distributors or other authorized representatives for
the subscription of ChargePoint Services the terms of which are incorporated herein by reference.
1.26 "Purchased ChargePoint Services" means those ChargePoint Services made available by
the Network Operator and for which a Subscription has been purchased by Subscriber with respect to
any of Subscriber's Networked Charging Stations or for which the Subscription Term has automatically
been renewed pursuant to Section 8.3 (Automatic Renewal of Subscriptions).
1.27 "Regulatory Charges" is defined in Section 4.6 (Taxes and Regulatory Charges).
1.28 "Session" or "Charging Session" means a continuous period of time measuring not less
than five (5) minutes commencing when a User has accessed a Networked Charging Station and the
delivery of Subscriber provided services has been initiated and terminating upon the cessation by such
User of the Subscriber provided services.
1.29 "Session Authorization Fees" means the fees payable by the Subscriber to the Network
Operator to pre- authorize a Charging Session at a Commercial Networked Charging Station.
1.30 "Session Fees" means the fees set by the Subscriber for a Charging Session, including
any applicable Taxes and /or Regulatory Charges.
1.31 "Session Processing Fees" means the fees charged by the Network Operator for the
management, collection and processing of Session Fees on behalf of Subscriber and the remittance of
Net Session Fees to Subscribers.
1.32 "Session Transaction Fees" means the complete set of fees, session authorization fees
and session processing fees, charged by the Network Operator to the Subscriber for collection of User
Session Fees on behalf of the Subscriber, as well as any applicable Taxes and Regulatory Charges.
Page 3 of 17
12 -14 -10
• •
1.33 "Software Application" means computer programs, including firmware, as provided or
otherwise made available to Subscriber by the Network Operator, or its distributors or other authorized
representatives, as embedded in or downloaded by Subscriber to the Subscriber's Charging Stations,
related products and any Upgrades.
1.34 "Subscriber" is an owner of one or more Charging Stations for which Subscriber has
purchased Subscriptions for ChargePoint Services and registered with and activated on the ChargePoint
Network.
1.35 "Subscriber Account" means an account established by a Subscriber.
1.36 "Subscriber Location(s)" means the physical locations where Subscriber has installed
Networked Charging Stations registered with the ChargePoint Network.
1.37 "Subscription" means a subscription for ChargePoint Services purchased by a
Subscriber.
1.38 "Subscription Fees" means the fees payable by Subscriber to the Network Operator for
subscribing to any of the ChargePoint Services.
1.39 "Subscription Term" means the Term for which Subscriber has purchased a Subscription
for Purchased ChargePoint Services for a Networked Charging Station.
1.40 "Taxes" is defined in Section 4.6 (Taxes and Regulatory Charges).
1.41 "Upgrades" means any authorized upgrades, updates, bug fixes or modified versions of
Software Applications furnished by the Network Operator.
1.42 "Users" means any person using Networked Charging Stations including, without
limitation, ChargePass Account Holders.
1.43 "You" or "Your" means the company or other legal entity for which you are accepting
this Agreement and the Affiliates of that company or entity.
2. CTI'S RESPONSIBILITIES AND AGREEMENTS
2.1 NETWORK OPERATION. The Network Operator shall be solely responsible for: (i)
Provisioning and Operating the ChargePoint Network — provisioning and operating, maintaining,
administration and support of the ChargePoint Network infrastructure (but excluding Subscribers'
Charging Stations and infrastructure for transmitting data from Networked Charging Stations to any
ChargePoint Network operations center); (ii) Provisioning and Operating Network Web Portals —
provisioning and operating, maintaining, administration and support of the Network Web Portals; (iii)
User Acquisition, Administration and Support -- acquisition and registration of new ChargePass Account
Holders, administration and support of ChargePass Accounts and provisioning the support services for
Users embodied in the ChargePoint Services, and (iv) Data Protection — using commercially reasonable
efforts to comply with all applicable laws and regulations of the United States of America and all other
governmental entities governing, restricting or otherwise pertaining to the use, distribution, export or
import of data, products, services and /or technical data whether such information or data relates to
either the Subscriber or Users in connection with the ChargePoint Network.
2.2 PURCHASED CHARGEPOINT SERVICES. The Network Operator shall make the
Purchased ChargePoint Services available to Subscriber pursuant to this Agreement and the applicable
Purchase Orders for each Networked Charging Station during the Subscription Term. The Network
Operator represents and warrants that: (i) Authority -- it has the power and authority to enter into and
be bound by this Agreement, (ii) Performance of ChargePoint Services -- the ChargePoint Services shall
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perform materially in accordance with the Documentation, (iii) Support for Purchased ChargePoint
Services — it will provide all support for Purchased ChargePoint Services and technical support and
maintenance for all Software Applications as set forth in the Documentation, including, without
limitation, Upgrades, (iv) Continuity of Purchased ChargePoint Services — It will use commercially
reasonable efforts to make the Purchased ChargePoint Services available 24 hours a day, 7 days a week,
365 days per year, except for planned downtime (of which Subscriber shall be given not less than eight
(8) hours prior notice via electronic messaging to the email address for notices specified in each
Subscriber Account), (v) No Decrease in Functionality of ChargePoint Services -- subject to Section
2.3(vi), the functionality of the ChargePoint Services shall not materially decrease during the
Subscription Term, and (vi) Malicious Code — it will use commercially reasonable efforts to ensure that it
does not transmit to Subscriber any Malicious Code (excepting Malicious Code transmitted to CTI or the
Network Operator by Subscriber or its Affiliates). Subscriber's exclusive remedy for a breach of any of
the foregoing shall be as provided in Section 8.4 (Termination) and Section 8.5 (Refund or Payment
Upon Termination) as set forth below.
2.3 LIMITATIONS ON RESPONSIBILITY. Neither CTI, its distributors nor its other authorized
representatives nor the Network Operator shall be responsible for, or makes any representation or
warranty to Subscriber with respect to the following: (i) Competing Subscriber Locations -- specific
location(s) or number of Networked Charging Stations now, or in the future, owned, operated and /or
installed by Subscribers other than Subscriber, or the total number of Networked Charging Stations that
comprise the ChargePoint Network; (ii) Electrical Service Interruptions — continuous availability of
electrical service to any Networked Charging Stations; (iii) Cellular and Internet Service Interruptions —
continuous availability of any wireless or cellular communications network or Internet service provider
network not operated by CTI or the Network Operator; (iv) Network Intrusions — availability of or
interruption of the ChargePoint Network attributable to unauthorized intrusions; (v) Unregistered
Charging Stations -- Charging Stations that are not registered and activated with the ChargePoint
Network, and (vi) Googlerm Services — the continued availability of any Google services incorporated for
use with the ChargePoint Services; provided that, if Google ceases to make the Google Application
Programming Interface ( "API ") or any similar program available on reasonable terms for the ChargePoint
Services, the Network Operator shall make commercially reasonable efforts to replace the Google API or
such similar program with products providing similar functionalities if such products are available upon
terms which the Network Operator, in its reasonable discretion, believes are commercially reasonable;
and provided further that, if Google ceases to make the Google API or similar program available, or
available on reasonable terms for the ChargePoint Services, the Network Operator may cease providing
such features without entitling Subscriber to any refund, credit or other compensation.
2.4 DISCLAIMER OF WARRANTY. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS SECTION 2,
NEITHER CTI, THE NETWORK OPERATOR NOR ANY OF THEIR RESPECTIVE DISTRIBUTORS OR OTHER
AUTHORIZED REPRESENTATIVES AS APPLICABLE, MAKES ANY WARRANTIES OF ANY KIND, WHETHER
EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND HEREBY EXPRESSLY DISCLAIMS ALL IMPLIED
WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY FOR FITNESS FOR A PARTICULAR
PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
3. SUBSCRIBER RESPONSIBILITIES AND AGREEMENTS
3.1 GENERAL. Subscriber shall be solely responsible for: (i) Installation of Charging
Stations and /or Related Electrical Vehicle Charging Products — the purchase and installation of
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Subscriber's Charging Stations and other electrical vehicle charging products shall be at Subscriber's sole
cost and expense; (ii) Registration and Activation of Charging Stations with the ChargePoint Network —
registration with and activation of Subscriber's Charging Stations on the ChargePoint Network through a
Network Web Portal, including, without limitation, keeping current Subscriber's contact information,
email address for the receipt of notices hereunder, billing address for invoices and payment of
Subscriber's Net Session Fees due under this Agreement; (iii) Pricing and Access -- setting the pricing
(including all applicable Taxes and Regulatory Charges) for any Subscriber provided services accessed by
Users through Networked Charging Stations that are designated Commercial Charging Stations and any
conditions limiting access thereof, (iv) Update of Registration of Charging Stations -- if a Networked
Charging Station is moved from its registered location Subscriber shall update the registration location
of the Networked Charging Station on the appropriate Network Web Portal within five (5) business days
of making any change in the Subscriber Location(s); (v) Identification of Charging Stations and
Subscriber Locations — provisioning and installation of appropriate signage that clearly and prominently
identifies and, where appropriate, provides directions to the Subscriber Locations so that they may be
easily located by Users; (vi) Public Access Level — designation of each Networked Charging Station as
either a Public Charging Station or a Private Charging Station; (vii) Commercialization — designation of
each Networked Charging Station as either a Commercial Charging Station or a Free Charging Station;
(viii) Appearance and Cleanliness -- keeping Networked Charging Stations and Subscriber Locations(s)
clean and free of graffiti, unauthorized advertising, debris and other materials that would obscure, block
access or otherwise detract from or cast a negative light on the reputation of the ChargePoint Network;
(ix) Maintenance, Service and Repair of Networked Charging Stations — the maintenance, service,
repair and /or replacement of Subscriber's Networked Charging Stations as needed, including
deactivation of Networked Charging Stations that are non - operational and not intended to be replaced
or repaired by Subscriber within ten (10) business days from the ChargePoint Network; (x) Location of
Charging Stations -- assuring the accessibility, lighting and other factors pertaining to the safety of
Users while utilizing the Charging Stations not directly related to the design or manufacture of the
Charging Stations themselves; and (xi) Compliance with Laws — operating and maintaining the
Subscriber's Networked Charging Stations in a manner that complies with all applicable laws.
3.2 REPRESENTATIONS AND WARRANTIES OF SUBSCRIBER. Subscriber represents and
warrants to CTI, the Network Operator, their respective its distributors and other authorized
representatives that: (i) Authority -- Subscriber has the power and authority to enter into and be
bound by this Agreement and to install the Charging Stations and any other electrical vehicle charging
products to be registered and activated on the ChargePoint Network at the Subscriber Location(s); (ii)
No Violation With Subscriber's Electrical Supply or Other Agreements -- Subscriber assumes all
responsibility that the electrical usage consumed by any of Subscriber's Networked Charging Station
does not violate or otherwise conflict with the terms and conditions of any applicable electrical
purchase or other agreement including, without limitation, any lease, to which Subscriber is a party; (iii)
Installation of Charging Stations Will Not Violate Any Other Agreements or Laws -- Subscriber will not
install or attach Charging Stations on or to infrastructure not owned by Subscriber without proper
authority, or in a manner that will block any easement or right of way. Subscriber will observe all legal
requirements with respect to vehicle clearances from intersections, points of ingress or egress and
public infrastructure such as fire hydrants, lampposts, parking meters, and will otherwise observe all
applicable governmental restrictions or restrictions applicable to the Subscriber Locations under any
other agreements to which Subscriber is subject; and (iv) Compliance Laws -- Subscriber will comply
with all applicable laws.
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3.3 FURTHER AGREEMENTS OF SUBSCRIBER MADE IN CONNECTION WITH REGISTRATION
OF CHARGING STATIONS ON THE CHARGEPOINT NETWORK AND USE OF CHARGEPOINT SERVICES.
Subscriber further acknowledges and agrees with the Network Operator, CTI, and their respective
distributors and authorized representatives, as applicable, as follows: (i) Display of CTI Marks --
Subscriber will not remove, conceal or cover the CTI Marks or any other markings, labels, legends,
trademarks, or trade names installed or placed on the Networked Charging Stations or any peripheral
equipment for use in connection with the Networked Charging Stations for so long as such Charging
Stations are Networked Charging Stations; (ii) Use of Network Web Portals -- Subscriber shall comply
with, and shall have responsibility for and cause all other persons accessing or using Network Web
Portals to comply with, all of the rules, regulations and policies of the Network Operator, as well as
other networks and computer systems used to access Network Web Portals, whether operated by
Subscriber, its suppliers or others and Subscriber agrees to indemnify and hold the Network Operator,
CTI, and their respective distributors and authorized representatives, directors, shareholders, officers,
agents, employees, permitted successors and assigns harmless from any third party notices, allegations,
claims, suits or proceedings (each, a "Claim ") resulting from Subscriber's use of Network Web Portals
and the ChargePoint Services in violation of the terms of this Section 3.3(ii) or of Section 3.3(iii); (iii) Use
of the ChargePoint Network and ChargePoint Services — Subscriber shall be responsible for use of the
ChargePoint Services in compliance with this Agreement, and in particular, shall: (A) use its
commercially reasonable efforts to prevent unauthorized access to Purchased ChargePoint Services, (B)
use the Purchased ChargePoint Services only in accordance with the Documentation and applicable laws
and government regulation, (C) shall not sell, resell, rent or lease the Purchased ChargePoint Services,
(D) shall not interfere with or disrupt the integrity of the ChargePoint Network, the ChargePoint Services
or any third party data contained therein, and (E) shall not attempt to gain unauthorized access to the
ChargePoint Network or the ChargePoint Services or their related systems or networks; (iv) Future
ChargePoint Services— Purchase Orders are not contingent on the delivery of any future functionality or
features, nor dependent on any oral or written comments anticipating future functionality or features;
(iv) Ownership of Data -- All data collected by the Network Operator in connection with the operation of
the ChargePoint Network shall be owned by CTI and the Network Operator and Subscriber
acknowledges and agrees that Subscriber shall have no right of access or the use of such data for any
purpose other than the management of Subscriber's Networked Charging Stations while registered with
the ChargePoint Network.
4. FEES AND PAYMENT FOR PURCHASED CHARGEPOINT SERVICES.
4.1 SUBSCRIPTION FEES. Subscriber shall pay the Subscription Fees set forth on any
Purchase Order for Purchased ChargePoint Services. Except as otherwise specified herein or in any
Purchase Order, (i) Subscription Fees are quoted in and payable in U.S. Dollars, (ii) Subscription Fees are
based on ChargePoint Services purchased and not on actual usage, (iii) payment obligations are non -
cancelable and are non - refundable, and (iv) Subscriptions are non - transferable (provided, that any
Subscription may be transferred to a Charging Station that is purchased by Subscriber to replace a
previously Networked Charging Station). Subscription Fees are based on annual periods that begin on
the date of the Subscription start date and end each annual anniversary thereafter.
4.2 INVOICING AND PAYMENT. Subscriber shall provide the Network Operator with valid
and up to date credit card information if Subscriber is subscribing for ChargePoint Services online
through the applicable Network Web Portal. In all other cases, payment of Subscription Fees shall be
made under the terms of any accepted Purchase Order pursuant to a method of payment reasonably
acceptable to the Network Operator. Where Subscriber provides credit card information to the Network
Operator through such Network Web Portal for the payment of Subscription Fees, Subscriber hereby
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authorizes the Network Operator to charge such credit card for all Purchased ChargePoint Services for
the initial Subscription Term and the automatic renewal of Subscription Term(s) as set forth in Section
8.3 (Automatic Renewal of Subscriptions). All credit card charges shall be made in advance, either
annually or in accordance with the terms of the accepted Purchase Order. If the Purchase Order
specifies that payment shall be made by a method other than credit card, the Network Operator, its
distributors or authorized representatives, as applicable, shall invoice Subscriber in advance in
accordance with the accepted Purchase Order (including the automatic renewal of Subscription Term(s))
and invoiced charges shall be due within thirty (30) days of the invoice date.
4.3 OVERDUE SUBSCRIPTION FEES. If any invoiced Subscription Fees are not received by
the Network Operator by the due date, then such charges: (i) may accrue late interest at the rate of one
and one -half percent (1.5 %) of the outstanding balance per month, or the maximum rate permitted by
law, whichever is lower, from the date such payment was due until paid, and (ii) the Network Operator
may condition future Subscription renewals and acceptance of Purchase Orders on payment terms other
than those set forth herein.
4.4 ACCELERATION AND SUSPENSION OF CHARGEPOINT SERVICES. If any amount owing
by Subscriber under this Agreement for Subscription Fees for Purchased ChargePoint Services or under
any other agreement between the Network Operator and Subscriber is more than thirty (30) days
overdue (or, in the event that Subscriber has authorized the Network Operator to charge the amount
owing to Subscriber's credit card and payment under such credit card has been declined, more than 5
days has passed since Subscriber has received notice from the Network Operator of such event), the
Network Operator may, without otherwise limiting the Network Operator's rights or remedies,
accelerate Subscriber's unpaid fee obligations under such agreements so that all such obligations
become immediately due and payable, and suspend the use by Subscriber of the Purchased ChargePoint
Services until such amounts are paid in full.
4.5 PAYMENT DISPUTES. The Network Operator shall not exercise its rights under Section
4.3 (Overdue Subscription Fees) or Section 4.4 (Acceleration and Suspension of ChargePoint Services) if
the applicable charges are under reasonable and good faith dispute and Subscriber is cooperating
diligently to resolve the dispute.
4.6 TAXES AND REGULATORY CHARGES. Unless required by law or otherwise stated herein,
Session Authorization Fees and Session Processing Fees do not include any taxes, levies, duties or similar
governmental assessments of any nature, including, but not limited to, value added, sales, local, city,
state or federal taxes ( "Taxes ") or any fees or other assessments levied or imposed by any governmental
regulatory agency ( " Regulatory Charges "). Subscriber is responsible for the payment of all Taxes and
Regulatory Charges hereunder in connection with Purchased ChargePoint Services, Session Fees, Session
Authorization Fees and Session Processing Fees; provided that the Network Operator is solely
responsible for all Taxes and Regulatory Charges assessable based on the Network Operator's income,
property and employees. Where the Network Operator is required by law to collect and /or remit the
Taxes or Regulatory Charges for which Subscriber is responsible, the appropriate amount shall be
invoiced to Subscriber in accordance with this Section 4 and deducted by the Network Operator from
Session Fees, unless Subscriber has otherwise provided the Network Operator with a valid tax or
regulatory exemption certificate or authorization from the appropriate taxing or regulatory authority.
S. FLEX - BILLING SERVICE FOR NETWORKED CHARGING STATIONS
5.1. SESSION FEES. Subscriber shall have sole authority to determine and set in real -time a
User's Session Fees (which shall include all applicable Taxes and Regulatory Charges) applicable to
Subscriber's Networked Charging Stations that are designated as Commercial Charging Stations.
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5.2 SESSION TRANSACTION FEES. In exchange for the Network Operator collecting Session
Fees on behalf of the Subscriber, the Subscriber hereby authorizes the Network Operator to deduct
from all Session Fees collected: (i) a Session Authorization Fee, and (ii) a Session Processing Fee, each in
the amount and subject to the terms and conditions as set forth in Schedule 1.
5.3 PAYMENT TO SUBSCRIBER OF NET SESSION FEES. The Network Operator shall remit to
Subscriber not more than thirty (30) days after the end of each calendar month to the address set forth
in Subscriber's Account information registered on the applicable Network Web Portal all Net Session
Fees.
6. PROPRIETARY RIGHTS
6.1 RESERVATION OF RIGHTS. Subject to the limited rights granted expressly hereunder,
CTI reserves all right, title and interest in and to the ChargePoint Services, including all related
Intellectual Property Rights. No rights are granted to Subscriber hereunder except as expressly set forth
herein. CTI shall have a royalty -free, worldwide, transferable, sublicensable, irrevocable perpetual
license to use or incorporate in the ChargePoint Services any suggestions, enhancement requests,
recommendations or other feedback provided by Subscribers or Users relating to the ChargePoint
Services.
6.2 RESTRICTIONS ON USE. Neither Subscriber nor any of its Affiliates shall: (i) permit any
third party to access the ChargePoint Services except as otherwise expressly provided herein or in any
Purchase Order, (ii) create derivative works based on the ChargePoint Services, (iii) copy, frame or
mirror any part or content of the ChargePoint Services, other than copying or framing on Subscribers
own intranets or otherwise for Subscriber's own internal business purposes, (iv) reverse engineer any
Charging Station or Software Application, or (v) access the ChargePoint Network, any Network Web
Portal or the ChargePoint Services in order to (A) build a competitive product or service, or (B) copy any
features, functions, interface, graphics or "look and feel" of any Network Web Portal or the ChargePoint
Services.
6.3 GRANT OF LIMITED LICENSE FOR CTI MARKS.
(a) LICENSE GRANT. Subscriber is granted under this Agreement the nonexclusive
privilege of displaying the CTI Marks during the Term of this Agreement in connection with the
Networked Charging Stations installed by Subscriber. Subscriber warrants that it shall not use any of the
CTI Marks for any products other than the Networked Charging Stations at the Subscriber Locations(s).
CTI may provide trademark usage guidelines with respect to Subscriber's use of the CTI Marks which will
be made available on a Network Web Portal, in which case Subscriber thereafter must comply with such
guidelines. If no such guidelines are provided, then for each initial use of the CTI Mark, Subscriber must
obtain CTI's prior written consent, which shall not be unreasonably withheld or delayed, and after such
consent is obtained, Subscriber may use the CTI Mark in the approved manner. The CTI Marks may not
be used under this Agreement as a part of the name under which Subscriber's business is conducted or
in connection with the name of a business of Subscriber or its Affiliates.
(b) NO REGISTRATION OF CTI MARKS BY SUBSCRIBER. Neither Subscriber nor any
of its Affiliates will take any action, directly or indirectly, to register or apply for or cause to be registered
or applied in Subscriber's favor or in the favor of any third party any CTI Marks or any patent, trademark,
service mark, copyright, trade name, domain name or registered design that is substantially similar to a
patent, trademark, service mark, copyright, trade name or registered design of CTI or the Network
Operator, or that is licensed to, connected with or derived from confidential, material or proprietary
information imparted to or licensed to Subscriber by CTI or the Network Operator .
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W USE OF CTI MARKS BY SUBSCRIBER ON INTERNET. Subscriber shall be entitled
to use the CTI Marks to promote the ChargePoint Network on Subscriber -owned websites and through
the Internet advertising of Subscriber and its Affiliates, provided, that Subscriber is limited to using the
CTI Marks in connection with the Internet as follows: (i) Compliance with Law -- the use must be in
compliance with local rules regarding advertising of the Networked Charging Stations and the
ChargePoint Network on the Internet; (ii) No Domain Name -- no license is granted to use or register
any domain name containing "CTI ", the name of the Network Operator or the CTI Marks; and (iii) Notice
of License — Subscriber and its Affiliates, as applicable, will at all times indicate that each of the CTI
Marks is a mark of CTI and used under license, as appropriate.
(d) TERMINATION AND CESSATION OF USE OF CTI MARKS. Upon termination of
this Agreement Subscriber and its Affiliates will immediately discontinue all use and display of the name
"CTI ", the name of the Network Operator and the CTI Marks.
6.4 FEDERAL GOVERNMENT END USER PROVISIONS. CTI provides the ChargePoint
Services, including Software Applications and technology, for ultimate federal government end use
solely in accordance with the following: Government technical data and software rights related to the
ChargePoint Services include only those rights customarily provided to the public as defined in this
Agreement. This customary commercial license is provided in accordance with FAR 11.211 (Technical
Data) and FAR 11.212 (Software) and, for Department of Defense transactions, DFAR 252.227 -7015
(Technical Data — Commercial items) and DFAR 226.7202 -3 (Rights in Commercial Computer Software or
Computer Software Documentation). If a government agency has a need for rights not conveyed under
these terms, it must negotiate with CTI to determine if there are acceptable terms for transferring such
rights, and a mutually acceptable written addendum specifically conveying such rights must be included
in any applicable Purchase order, contract or other agreement.
7. INDEMNIFICATION
7.1 INDEMNIFICATION OF SUBSCRIBER BY CTI.
CTI shall defend at its expense any third party notices, allegations, claims, suits, or proceedings
( "Claim ") against Subscriber and its Affiliates, and their respective directors, shareholders, officers,
agents, employees, permitted successors and assigns, to the extent alleging that the use of any of the
ChargePoint Services as permitted hereunder or the CTI Marks as furnished hereunder infringes or
misappropriates the Intellectual Property Rights of any third party, and to pay costs and damages finally
awarded in any such suit or agreed to by CTI in settlement with such third party (including reasonable
attorney's fees and expenses), provided that CTI is notified promptly in writing of the suit and at CTI's
request and at its expense is given control of said suit and all requested reasonable assistance for
defense of same. CTI agrees that it shall not settle any Claim unless Subscriber and its Affiliates, as
applicable, are unconditionally released from any liability as part of any settlement. This indemnity
does not extend to any suit based upon any infringement or alleged infringement of any Intellectual
Property Rights by the combination of a product (including the ChargePoint Services) furnished by CTI
with other elements not furnished by CTI if such infringement would have been avoided by the use of
the CTI product (including in conjunction with the CTI furnished ChargePoint Services) alone.
7.2 INDEMNIFCATION OF CTI BY SUBSCRIBER.
Subscriber shall defend CTI, the Network Operator , and their respective distributors, authorized
agents, directors, shareholders, officers, agents, employees, permitted successors and assigns against
any Claim brought by a third party (i) as a result of Subscriber's negligence or willful misconduct or (ii)
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alleging that Subscriber's or any of its Affiliates' use of the ChargePoint Network or ChargePoint Services
in violation of this Agreement infringes or misappropriates the Intellectual Property Rights of any third
party or violates applicable law, and to pay costs and damages finally awarded in any such suit or agreed
to by Subscriber in settlement with such third party (including reasonable attorney's fees and expenses),
provided that Subscriber is notified promptly in writing of the suit and at Subscriber's request and at its
expense is given control of said suit and all requested reasonable assistance for defense of same.
Subscriber agrees that it shall not settle any Claim unless CTI, the Network Operator, and their
respective distributors and /or other authorized representatives, as applicable, are unconditionally
released from any liability as part of any settlement.
7.3 LIMITATION OF LIABILITY. Except for liability for indemnification against third party
claims for infringement or misappropriation of intellectual property rights, the Network Operator and
CTI's aggregate liability under this Agreement shall not exceed the aggregate Subscription Fees paid by
Subscriber to the Network Operator in the calendar year prior to the event giving rise to the Claim. THE
FOREGOING DOES NOT LIMIT SUBSCRIBER'S PAYMENT OBLIGATIONS FOR THE PURCHASED
CHARGEPOINT SERVICES.
7.4 EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES. REGARDLESS OF WHETHER
ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPORSE OR OTHERWISE, IN NO EVENT WILL
CTI , THE NETWORK OPERATOR OR THEIR RESPECTIVE DISTRIBUTORS OR OTHER AUTHORIZED
REPRESENTATIVES BE LIABLE FOR ANY LOST REVENUE OR PROFIT, LOST OR DAMAGED DATA, BUSINESS
INTERRUPTION, LOSS OF CAPITAL, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR
PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY OR WHETHER
ARISING OUT OF THE USE OF OR INABILITY TO USE THE CHARGEPOINT NETWORK, ANY CHARGEPOINT
SERVICES, THIS AGREEMENT OR OTHERWISE OR BASED ON ANY EXPRESSED, IMPLIED OR CLAIMED
WARRANTIES BY SUBSCRIBER NOT SPECIFICALLY SET FORTH IN THIS AGREEMENT AND EVEN IF CTI, THE
NETWORK OPERATOR OR THEIR RESPECTIVE DISTRIBUTORS, OTHER AUTHORIZED REPRESENTATIVES,
SUPPLIERS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME
STATES OR JURISDICITON DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR
INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
7.5 EXCLUSIVE REMEDY. The foregoing states the indemnifying party's sole liability to, and
the indemnified party's exclusive remedy against, the other party with respect to any Claim described in
this Section 7.
7.6 ELECTRICAL, CELLULAR AND INTERNET SERVICE INTERRUPTIONS. None of CTI, the
Network Operator, any of their respective distributors, other authorized representatives, or Subscriber
shall have any liability whatsoever to the other with respect to damages caused by: (i) electrical
outages, power surges, brown -outs, utility load management or any other similar electrical service
interruptions whatever the cause; (ii) interruptions in wireless or cellular service linking Networked
Charging Stations to the ChargePoint Network; (iii) interruptions attributable to unauthorized
ChargePoint Network intrusions; or (iv) interruptions in services provided by any Internet service
provider not affiliated with CTI or the Network Operator. This includes the loss of data resulting from
such electrical, wireless, cellular or Internet service interruptions.
8. TERM AND TERMINATION
8.1 TERM OF AGREEMENT. This Agreement shall become effective on the date of
acceptance and continues until all Subscriptions (including any automatic renewals thereof) purchased
by Subscriber have been terminated or otherwise have expired.
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8.2 TERM OF PURCHASED SUBSCRIPTIONS. Subscriptions purchased by Subscriber
commence on the start date specified in the Purchase Order and shall continue for the applicable
Subscription Term specified therein for each Subscription or until the Purchased ChargePoint Services
provided pursuant to any Subscription are otherwise terminated, changed or canceled by the Network
Operator or Subscriber as allowed by the terms and conditions set forth herein.
8.3 AUTOMATIC RENEWAL OF SUBSCRIPTIONS. Unless otherwise specified in the
applicable Purchase Order, all purchased Subscriptions shall automatically be renewed for a period
equal to that of the expiring Subscription, unless either party gives the other notice of non - renewal not
less than thirty (30) days prior to the schedule expiration date for the relevant Subscription Term. The
per -unit pricing for any renewal term shall be the same as during the prior term unless the Network
Operator shall have given Subscriber notice to the email address for the Subscriber Account that
Subscriber has provided hereunder of any increase in pricing for Subscriptions not less than thirty (30)
days prior to the end of such expiring Subscription, in which case the price increase shall be effective
upon renewal and thereafter. Any such pricing increase shall not exceed ten percent (10 %) over the
pricing for the relevant Purchased ChargePoint Services in the prior term, unless the pricing for such
expiring Subscription was designated in the applicable Purchase Order as promotional or a one -time
offer.
8.4 TERMINATION.
(a) BY THE NETWORK OPERATOR. This Agreement and the Purchased ChargePoint
Services furnished hereunder may be immediately suspended or terminated: (i) if Subscriber is in
material violation of any of Subscriber's obligations under this Agreement, provided, that Subscriber
shall be given written notice of such violation and if cured within thirty (30) days of such notice, any
suspension or termination of Purchased ChargePoint Services shall be restored and this Agreement shall
continue in effect, (ii) Subscriber becomes the subject of a petition in bankruptcy or any other
proceeding related to insolvency, receivership, liquidation or an assignment for the benefit of creditors,
(iii) upon the determination by any regulatory body that the subject matter of this Agreement is subject
to any governmental regulatory authorization or review, or (iv) if, pursuant to the terms of this
Agreement, the Network Operator is permitted the right to terminate upon the occurrence of an event
or events.
(b) BY SUBSCRIBER. This Agreement may be terminated by Subscriber for cause:
(i) upon thirty (30) days written notice given to the Network Operator alleging a material breach of this
Agreement and the alleged breach remains unremedied at the expiration of such period, or (ii) the
Network Operator becomes the subject of a petition in bankruptcy or any other proceeding related to
insolvency, receivership, liquidation or an assignment for the benefit of creditors. This Agreement may
be terminated by Subscriber upon the voluntary deactivation and removal from registration via the
applicable Network Web Portal of all Networked Charging Stations owned by Subscriber and its Affiliates
from the ChargePoint Network, at which time this Agreement shall terminate effective immediately;
provided, that Subscriber shall not be entitled to any refund of prepaid Subscription Fees as a result of
such termination.
8.5 REFUND OR PAYMENT UPON TERMINATION. Upon any termination of this Agreement
for cause by Subscriber pursuant to Section 8.4(b)(i), or (ii) or the election of the Network Operator to
terminate this Agreement pursuant to Section 8.4(a)(iii), the Network Operator shall refund to
Subscriber the pro -rata portion of any pre -paid Subscription Fees for the remainder of the applicable
Subscription Term for all Subscriptions after the effective date of termination. Upon any termination for
cause by the Network Operator pursuant to Section 8.4(a)(i), (ii) or (iv) or upon the voluntary removal
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• •
from registration and activation of all of Subscriber's Network Charging Stations from the ChargePoint
Network, Subscriber shall pay any unpaid Subscription Fees covering the remainder of the Subscription
Term for any accepted Purchase Orders. In no event shall any termination relieve Subscriber of any
liability for the payment of Subscription Fees or Session Processing Fees for any period prior to the
termination date.
9. AMENDMENT OR MODIFICATION No modification, amendment or waiver of this Agreement
shall be effective unless in writing and either signed or electronically accepted by the party against
whom the amendment, modification or waiver is to be asserted; provided, that subject to any applicable
Purchase Order the Network Operator may change the Session Authorization Fee and /or the Session
Processing Fee as provided in Schedule 1.
10. WAIVER The failure of either Party at any time to require performance by the other Party of
any obligation hereunder will in no way affect the full right to require such performance at any time
thereafter. The waiver by either Party of a breach of any provision hereof will not constitute a waiver of
the provision itself. The failure of either Party to exercise any of its rights provided in this Agreement
will not constitute a waiver of such rights. No waiver will be effective unless in writing and signed by an
authorized representative of the Party against whom such waiver is sought to be enforced. Any such
waiver will be effective only with respect to the specific instance and for the specific purpose given.
11. FORCE MAJEURE Except with respect to payment obligations, neither the Network Operator
nor Subscriber will be liable for failure to perform any of its obligations hereunder due to causes beyond
such party's reasonable control and occurring without its fault or negligence (a "Force Majeure Event").
A Force Majeure Event will include, but not be limited to, fire, flood, earthquake or other natural
disaster (irrespective of such party's condition of any preparedness therefore); war, embargo; riot;
strike; labor action; any lawful order, decree, or other directive of any government authority that
prohibits a party from performing its obligations under this Agreement; material shortages; shortage of
transport; and failures of suppliers to deliver material or components in accordance with the terms of
their contracts.
11. APPLICABLE LAW This Agreement is to be governed by the laws of the State of Florida. Venue
for any legal proceeding related to this Agreement shall be in the Eighteenth Judicial Circuit Court in and
for Seminole County, FloridaU11_
12. WAIVER OF JURY TRIAL Each Party hereby waives any right to jury trial in connection with any
action or litigation arising out of this Agreement.
13. SURVIVAL Those provisions dealing with the Intellectual Property Rights of CTI, limitations of
liability and disclaimers, restrictions of warranty, Applicable Law and those other provisions which by
their nature or terms are intended to survive the termination of this Agreement will remain in full force
and effect as between the Parties hereto as contemplated hereby.
14. SEVERABILITY Except as otherwise specifically provided herein, if any term or condition of this
Agreement or the application thereof to either Party will to any extent be determined jointly by the
Parties or by any judicial, governmental or similar authority, to be invalid or unenforceable, the
remainder of this Agreement, or the application of such term or provision to this Agreement, the Parties
or circumstances other than those as to which it is determined to be invalid or unenforceable, will not
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be affected thereby. If, however such invalidity or unenforceability will, in the reasonable opinion of
either Party cause this Agreement to fail of its intended purpose and the Parties cannot by mutual
agreement amend this Agreement to cure such failure, either Party may terminate this Agreement for
cause as provided herein above.
15. ASSIGNMENT Subscriber may not assign any of its rights or obligations hereunder, whether by
operation of law or otherwise, without the prior written consent of the Network Operator (not to be
unreasonably withheld). In the event of any purported assignment in breach of this Section 15, the
Network Operator shall be entitled, at its sole discretion, to terminate this Agreement upon written
notice given to Subscriber. In the event of such a termination, Subscriber shall pay any unpaid
Subscription Fees covering the remainder of the Subscription Term for any accepted Purchase Orders. In
no event shall any termination relieve Subscriber of any liability for the payment of Subscription Fees or
Session Processing Fees for any period prior to the termination date. Subject to the foregoing, this
Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted
assigns CTI and the Network Operator may each assign its rights and obligations under this Agreement.
Within ninety (90) days of any such assignment, CTI or the Network Operator, as the case may be, shall
provide written notice to Subscriber of the fact of such assignment.
16. NO AGENCY OR PARTNERSHIP CREATED BY THIS AGREEMENT CTI, in the performance of this
Agreement, and in its role as the Network Operator, is an independent contractor. In performing its
obligations under this Agreement, CTI shall maintain complete control over its employees, its
subcontractors and its operations. No partnership, joint venture or agency relationship is intended by
CTI and any Subscriber to be created by this Agreement.
17. ENTIRE AGREEMENT This Agreement, Schedule 1 and the applicable Purchase Orders of
Subscriber contain the entire agreement between the Parties and supersedes and cancels all previous
and contemporaneous agreements, negotiations, commitments, understandings, representations and
writings in respect to the subject matter hereof. To the extent of any conflict or inconsistency between
the terms and conditions of this Agreement and any Purchase Order, this Agreement shall prevail.
Notwithstanding any language to the contrary therein, no terms or conditions stated in any other
documentation (excluding Schedule 1 and Purchase Orders) shall be incorporated into or form any part
of this Agreement, and all such purported terms and conditions shall be null and void. No limited
product warranty shall be applicable to the provisions of this Agreement.
18. COUNTERPARTS This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which, taken together, shall constitute but one and the same
document.
COL
By:
Narr
Title:
�VD
Page 14 of 17
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0
Date: I ` < < — 1 2--
Attest:
Q� f ,
12net Dougherty, City derk
Approved as to form and legal sufficiency.
City Of Sanford
- .�'►1»
jL. Colbert City ttor
,OA/�l/ /L V-
/-DL' A (Please complete Appendix A if signing up for Flex Billing Service.)
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0
Schedule 1: Subscriber Session Transaction Fee Schedule'
Fee Schedule
For Each Charging Session using
For Each Charaina Session Using
ChargePass Card
Credit Card
Session Authorization Fee
$0.50 per Session
$0.50 per Session
Session Processing Fee
7.5% of Session Fees
7.5% of Session Fees
1 Subscriber is required to separately subscribe for the ChargePointTm Network Standard Service in order to
activate its Charging Stations on the ChargePointTm Network.
The Session Authorization Fee may not be increased more than once in any twelve (12) month period nor more
than the greater of (i) ten percent (10 %) or (ii) the Consumer Price Index rate of change promulgated by the
United State Bureau of Labor Statistics with respect to the 12 -month period just then ended when any notice of
change is given by CTI to Subscribers.
CTI may increase the Session Processing Fee payable pursuant to this Agreement at any time after July 1, 2011,
upon not less than one hundred eight (180) days notice (the "Notice Period ") given by electronic notice posted
to the Subscriber Portal and sent to each individual Subscriber Account, and any such change shall thereafter
be binding and enforceable with respect to Subscriber after the expiration of such Notice Period; provided
urther that the Session Processing Fee may not be increased by more than one percentage point in any
twelve (12) month period, nor in the aggregate, increased to more than twenty percent (20.00 %) of Session
Fees at any time.
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0
Appendix A• Account Information Form for Flex Billing Services
Complete and fax this form to Coulomb Technologies Sales Operations ( +1- 214 - 716 -1244) to sign up for
Flex Billing services. All fields are required (except where noted).
Business Info
Business Legal Name: C t j5 of CaAnF0>- cA
Business Legal Address: 30� /y �` ` ��A -nFO
(Number) (Street) (City) c (State /Province) (Postal Code) (Country)
Business Federal Tax ID: Ci - U C ' c-A 3 S
Individual Point of Contact
Contact Name: AJ (C iLo(C.1 ✓ A
Contact Phone: Y ro g la
Contact Fax: �07 • 6 $$ • 5 - 0 0a
Contact Email Address: A1Le,^4. rn -
Bank Account Info
Bank Name:
Bank Address: 10V , � *�` 4� ` - aQ i, u s�
(Number) (Street) (city) (State /Provin e) (Postal Code) (Country)
Bank Routing number or Swift Code: C W <3`�
Bank's Account number (if applicable): `A ( L �`S
Business's Account Number: it t (Y IF
Business's Account Name:
(Remit To Name, iAdifferentthan Business Legal Name)
Business's Account Address: , cc
(Remit To Address, if different than Business Legal I
Business's Federal Tax ID:
(if Remit To Entity is if different than Business Legal Entity)
Additional Information (for Non -US Customers Only)
Intermediary Bank Name:
Intermediary Bank Address:
(Number) (Street)
(City) (State /Province) (Postal Code) (Country)
Intermediary Bank Routing or Swift Code:
Intermediary Bank' Account number if applicable:
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