1855 ChargePointCITY OF "fif
SWORD
FINANCE DEPARTMENT
Thursday, December 20, 2018
PURCHASING DEPARTMENT
TRANsMITTAL MEMORANDUM OP
To: City Clerk/Ma or
RE: �1;2V W
The items) noted below is/are attached and forwarded to your office for the following action(s):
F] Development Order
F] Final Plat (original mylars)
F] Letter of Credit
❑ Maintenance Bond
❑ Ordinance
F] Performance Bond
F] Resolution
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Once completed, please:
El Return originals to Purchasing- Department
n Return copies
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Special Instructions:
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From
SharePoint—Finance—Purchasing_yorms - 2018.doc
❑ Mayor's signature
Recording
F] Rendering
AS-- Safe keeping (Vault)
F] Deputy City Manager
❑ Payment Bond
❑ City Manager Signature
E] City Clerk Attest/Signature
n City Attorney/Signature
Date
Agreement for Electric Vehicle Charging Station Services
This Agreement is made and entered into this 22nd day of January, 2019 (the "Effective
Date") by and Between the City of Sanford, Florida, a municipal corporation of the State of Florida
located at 300 North Park Avenue, Sanford, Florida 32771, (the "City") and Optimus Solar, LLC
(the "Service Provider"), a Florida limited liability company, whose address is 30941 Suneagle
Drive, Mount Dora, Florida 32757.
RECITALS:
Whereas, the City desires the availability of ChargePoint Electric Vehicle charging stations
on its premises located on designated right of way locations within the City of Sanford, specifically
in three (3) locations that currently have ChargePoint Electric Vehicle charging stations:
(1). North Park Avenue directly north of E 1st St. described as "City of Sanford N. Park
Ave 01" in ChargePoint App as of Effective Date;
(2). North side of East 1st St. in front of Historic Sanford Welcome Center described as
"City of Sanford Welcome Ctr 01" in ChargePoint App as of date of Effective Date; and
(3). North Palmetto Avenue directly north of East 1st St. in front of the "Sanford Parking
Lot" described as "City of Sanford Palmetto Ave 01" in ChargePoint App as of Effective
Date.
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Whereas, the Service Provider is able and willing to provide ChargePoint Electric Vehicle
charging stations pursuant to the terms contained herein; and
Whereas, the Service Provider and the City intend for this Agreement to govern the
provision of services to the City as of the Effective Date, continuing for the full term of this
Agreement.
Now Therefore, in consideration of the mutual promises contained herein, the
consideration and sufficiency of which is hereby agreed to and acknowledged, the City and the
Service Provider agree as follows:
TERMS OF AGREEMENT:
Section 1. Recitals; Use Of Right -Of -Way:
(a). The recitals set forth above are true and correct and incorporated herein by this reference.
(b). This Agreement specifically entities the Service Provider to reasonably use the right of way
locations identified in the Recitals and confirms that the Service Provider does not require any
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further permission from the City to locate and retain the charging stations in the above-mentioned
locations consistent with the terms of this Agreement.
Section 2. Term:
(a). The term of this Agreement shall commence on the Effective Date, and this Agreement
shall continue in full force and effect for a period of eight (8) years from the Effective Date ("Initial
Term") or until this Agreement is terminated as herein provided, whichever shall occur first.
(b). Upon expiration of Initial Term, provided Agreement has not been terminated, Agreement
shall automatically renew for an additional two-year term ("Renewal Term") unless sixty (60) days'
notice in writing is provided from the City to the Service Provider. There is no limit to the number
of successive Renewal Terms, each of two (2) years, should both the City and the Service
Provider continue performing under the terms of this Agreement. Should charging stations
become obsolete and both the City and the Service Provider desire to continue working together,
a mutually -agreeable solution will attempt to be found.
(c). Upon termination, expiration or non -renewal of this Agreement, the charging stations will
either be removed by the Service Provider, or left in place for the City's ownership transfer and
use, whichever option is desired by the City.
Section 3. Services:
(a). Service Provider will provide services as summarized in Exhibit W.
(b). The City will provide services as summarized in Exhibit "A".
Section 4. Termination:
(a). The City and the Service Provider may terminate this Agreement under the following
circumstances:
(1). Non -Renewal: Either the City or the Service Provider may voluntarily elect to not
renew after the Initial Term or any Renewal Term by providing sixty (60) days written notice to
other party. Should either party not renew under the non -renewal clause here, the equipment at
the above location will remain in place, and become the full property of the City, to manage as it
deems appropriate.
(2). Termination with Cause: The City may terminate this Agreement with cause at any
time by giving written notice of such intention should the Service Provider fail to uphold any of the
terms in Exhibit "A". The Service Provider may terminate with cause at any time by giving written
notice of such intention should the City fail to uphold any of the terms in Exhibit "A". Either the
City or the Service Provider will have thirty (30) days to correct such failure from receipt of written
notice. Should either party terminate with cause, no compensation or further payment or services
will be due to other party.
(b). Termination without Cause: Should either party terminate this Agreement early without
cause, the terminating party shall pay to other Party the amount of $1,000 for each year of this
Agreement remaining after Termination to the end of the initial term of eight (8) years.
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Section 5. Indemnification:
The City and the Service Provider shall indemnify and hold harmless one another from all claims,
losses, damages and liabilities arising from activities under this Agreement, to the extent allowed
by law it being agreed and acknowledged that the City is entitled to sovereign immunity pursuant
to controlling State law. Further, nothing contained in this paragraph shall be construed as an
admission of City's liability or a waiver of sovereign immunity.
Section 6. Public Records:
(a). IF THE CONTRACTORISERVICE PROVIDER HAS QUESTIONS
REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO
THE CONTRACTOR'S (SERVICE PROVIDER'S) DUTY TO PROVIDE PUBLIC
RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF
PUBLIC RECORDS AT (407) 688-5012, TRACI HOUCHIN, CMC, FCRM, CITY
CLERK, CITY OF SANFORD, CITY HALL, 300 NORTH PARK AVENUE,
SANFORD, FLORIDA 32771, TRACI.HOUCHIN a@SANFORDFL.GOV.
(b). In order to comply with Section 119.0701, Florida Statutes, public records laws, the
Service Provider must:
(1). Keep and maintain public records that ordinarily and necessarily would be
required by the City in order to perform the service.
(2), Provide the public with access to public records on the same terms and
conditions that the City would provide the records and at a cost that does not exceed the cost
provided in Chapter 119, Florida Statutes, or as otherwise provided by law.
(3). Ensure that public records that are exempt or confidential and exempt from
public records disclosure requirements are not disclosed except as authorized by law.
(4). Meet all requirements for retaining public records and transfer, at no cost, to the
City all public records in possession of the Service Provider upon termination of the contract
and destroy any duplicate public records that are exempt or confidential and exempt from
public records disclosure requirements. All records stored electronically must be provided to
the City in a format that is compatible with the information technology systems of the City.
(c). If the Service Provider does not comply with a public records request, the City shall
enforce the contract provisions in accordance with this Agreement.
(d), Failure by the Service Provider to grant such public access and comply with public
records requests shall be grounds for immediate unilateral cancellation of this Agreement by
the City. The Service Provider shall promptly provide the City with a copy of any request to
inspect or copy public records in possession of the Service Provider and shall promptly
provide the City with a copy of the Service Provider's response to each such request.
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Section 7. General Provisions:
(a). Entire Agreement: This Agreement and Exhibit constitute the entire Agreement of the
Parties. There are no representations other than those set forth in this Agreement and Exhibit in
connection with this Agreement.
(b). Governing Law: This Agreement shall be governed by and construed in accordance with
the laws of the State of Florida, with jurisdiction in Seminole County, Florida.
(c). Severability: If any provision of this Agreement is deemed invalid or unenforceable, the
invalid or unenforceable provision will be deemed severed from this Agreement without affecting
the validity of any other term or provision.
(d). Notices:
To The City:
City of Sanford
C/O Sonia Fonseca
300 North Park Avenue
Sanford, Florida 32771
To the Service Provider:
Optimus Solar
C/O Ben Pauluhn
Post Office Box 1850
Mount Dora, Florida 32756
(e), Assignment: Service Provider may assign its rights and obligations hereunder with the prior
written consent of the City, provided assignee is managed or wholly owned by a member or
manager of the Service Provider.
(f). City Standard Terms: All standard City policies, contractual terms and conditions shall
apply to this Agreement, unless specifically contradicted by a provision of this Agreement as
determined by the City. Such terms and conditions can be found on the City's website at
www.sanfordfl.gov.
In Witness Whereof, the Parties have executed and delivered this Agreement as of the date set
forth below:
SIGNATURE BLOCKS FOLLOW:
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Attest.
J'AL 413, jr l'um � 0 ko i FO k 0 -
Traci Houchin, CIVIC, FCRM
City Clerk
Witnesses:
Signature Witness # I
Printed Name:
Signature Witness # 2
Printed Name:
By:
Norton N. Bonapaqq, Jr.,-IGMA-CM
City Manager
C
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Exhibit "A"
Service Provider service level commitments include the following:
• Provide a fully operational charging stations at the addresses found in the Recitals of this
Agreement for a period of no less than the Initial Term.
• Manage, operate, pay all fees to ChargePoint, pay all associated taxes (TPP, sales tax,
other, if due), and generally be responsible for the operation and maintenance of the charging
stations.
• The Service Provider will own charging stations for the entire duration of Agreement.
• Each charging station will have one (1) electric vehicle plug outlet except at the Park
Avenue location, where two (2) outlets will be available.
• In rare cases of Station vandalism, the Service Provider and the City will work together on
a mutual solution to bring charging stations back up and running.
9Provide a bi-annual report of usage to the City, including dollar value of power used by
charging stations for purposes of tracking.
The City commitments include the following:
• Provide dedicated 40amp service to each plug throughout the Term of this Agreement.
• Respond to and tow any non -electric vehicle that is parked in the electric -vehicle only spot
• Maintain the striping and signage explicitly stating that the associated parking spot is EV -
only.
0 Pay for the first five -hundred dollars ($500.00) of electricity used by each charging station
in each calendar year, with any usage over that reimbursed from the Service Provider to the City
in the form of a check at the end of each calendar year.
Additional Provisions:
The Service Provider will have signage, approved as a subsequent attachment to this
4reement, at each charging station throughout the Term of this Agreement.
• The City grants the Service Provider the rights to locate each charging station at the
agreed-upon addresses for the Initial Tenn and any Renewal Term at no charge, and with
exclusive rights to location while this Agreement is in full force and effect.
Fees and Finances
• The City is responsible for, and will pay for all costs associated with running necessary
power service to each charging station.
The Service Provider is responsible for, and will pay for all costs associated with
�urchasing the charging stations, managing the charging stations and operating the charging
stations, including any and all recurring third -party fees.
• The Service Provider fixes the rate for plug-in use of the charging stations, collected by
ChargePoint and payable directly to the Service Provider, at $1.50 per hour for the first two (2)
years from Effective Date, $2.00 per hour for the subsequent two (2) years and increasing 3% per
annum for years 5-8 of the Initial Term.
0 This rate is effective for the first four (4) hours a vehicle is engaged at charging stations,
and hours thereafter are charged at $2.50 per hour for the first two (2) years and $3.50 per hour
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for the subsequent two (2) years, increasing 3% per annum for years 5-8 of Initial Term to
encourage availability for other vehicles usage.
• The Service Provider is explicitly not charging for vehicular parking, rather the service of
EV Charging delivery. Therefore, the expectation is any cars parked in EV -only parking spots as
designated will be engaged with the charging station for the duration of their presence in said EV -
only parking spot.
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CITY COMMISSION MEMORANDUM "I 1-108.L
.JULY 1 1, 201 1 AGENDA
WS RM x
Item No. a
To: Honorable Mayor and Members of the City Commission
PREPARED BY: Nicholas Mcray, Economic Development Director
SUBMITTED BY: Tom George -interim City Manager jam-'
SUBJECT: Authorization to execute ChargePoint America grant agreement documents
SYNOPSIS:
Staff is requesting authorization for the Mayor to execute grant agreement documents for the
acquisition of five electric vehicle charging stations under the ChargePoint America program.
FFISCALISTAFFING STATEMENT:
Funding is available for the $9,000 initial cost in account # 001-7979-590-99-01. Charge station
network subscription fees are covered during the grant through December 31, 2013 and are
estimated at $140 per year after the grant.
BACKGROUND:
This grant opportunity covers approximately 90% of the electric vehicle (EV) charging station
equipment cost with the City responsible for 10% equipment cost and the cost of installation. Total
City cost will be $9,000 for the acquisition and installation which will yield $45,000 worth of
"Green" infrastructure.
The grant is funded through the Department of Energy (DOE) as part of the Transportation
Electrification Initiative. This effort is intended to accelerate production and implementation of
EV vehicles and infrastructure. DOE will be collecting charging station use data during the grant
period through December 31, 2013. Although staff anticipates free charging station use initially,
the City will have the ability to charge a fee per use of the stations at the City's sole discretion.
This grant also represents an opportunity to compliment the Commission's recent approval of
upgrades to the Sanford SunRail station which included infrastructure for EV charging equipment
at the rail station. Subsequent to the December 31, 2013 grant termination, the charging stations
are City property with no encumbrances.
LEGAL REVIEW:
Grant agreement documents are currently under review with the City Attorney's office.
RECOMMENDATION:
Staff recommends City Commission authorization for the Mayor to execute ChargePoint America
grant agreement documents subject to satisfactory resolution of all City staff and City Attorney
comments.
SUGGESTED MOTION:
"I move to approve the Consent Agenda"
CHARGEPOINTO
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'' 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 Networld' 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,
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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 "CTP' 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.
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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.
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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) Google' 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, creditor 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.
5. 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 POSSIBLITY 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, FloridaUll_
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: CVD
Page 14 of 17
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Date: I — < < / -2-
Attest: Attest:
i4net Dougherty, City derk
Approved as to form and legal sufficiency.
City Of Sanford
By
Jef
Da
yL. Colbert City ttor
,V AW /&
)OqL-/l (Please complete Appendix A if signing up for Flex Billing Service.)
Page 15 of 17
iz-ia-10
Schedule 1: Subscriber Session Transaction Fee Schedule'
Fee Schedule
For Each Charging Session using
For Each Charging Session Using
ChargePass Card
Credit Card
Session Authorization Feel
$0.50 per Session
$0.50 per Session
Session Processing Fee
7.5% of Session Fees
7.5% of Session Fees
' Subscriber is required to separately subscribe for the ChargePoint'" Network Standard Service in order to
activate its Charging Stations on the ChargePoint'" 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 40
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: C1 6 o f C. -,An Fi^ A
Business Legal Address: SOQ• -J P11'Z , SAll Fo�c,Q
(Number) (Street) (City) (State/Province) (Postal Code) (Country)
Business Federal Tax ID: S 9 - U 01"�44 3S_
Individual Point of Contact
Contact Name: �(C �ot4) 11A C.,51
Contact Phone: C
Contact Fax: �0? • 6 fag • $`oo
Contact Email Address: /ViG,lif
Bank Account Info
Bank Name: _ ����•`� Fcz-d
Rank Address: t o l
(Number) (Street) (City) (State/Provin e) (Postal Code) (Country)
Bank Routing number or Swift Code; l') 1 cw `�
Bank's Account number (if applicable): c�i� 1 `� c6
Business's Account Number: I -=sck rn, f
Business's Account Name:
(Remit To Name, indifferent than Business Legal Name)
Business's Account Address: 114- • V c;,-�. A-N4G
(Remit To Address, if different than Business Legal
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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