ACCEPTANCE: Acceptance of any order is subject to credit approval by “Seller” (Power Technology Solutions, LLC or Energy Technology Solutions, LLC), acceptance of the order by Seller and, when applicable, Seller’s vendor (i.e. manufacturers, vendors, or other third parties that provide goods to Seller for resale to Buyer (“Vendors”)). If Seller, in its sole discretion, determines that Buyer’s ability to pay or credit becomes unsatisfactory or it has reasonable grounds for insecurity, Seller reserves the right, upon notice to Buyer, to demand adequate assurance of due performance from Buyer and/or terminate this agreement with no liability to Seller. BY REQUESTING A QUOTE FROM SELLER OR PRESENTING AN ORDER TO SELLER, BUYER CONFIRMS THAT THESE TERMS & CONDITIONS SHALL GOVERN ALL PURCHASES OF GOODS, MATERIALS AND/OR SERVICES PROVIDED TO BUYER BY SELLER (COLLECTIVELY “GOODS”) BY BUYER FROM SELLER OBJECTS TO AND REJECTS ANY CHANGES OR ADDITIONAL OR DIFFERENT TERMS (CONTAINED IN A PURCHASE ORDER ACCEPTED BY SELLER, OR OTHERWISE) AND NO SUCH TERMS WILL CHANGE THESE TERMS & CONDITIONS UNLESS ACKNOWLEDGED IN WRITING AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF SELLER. NO SELLER EMPLOYEE OR AGENT HAS THE AUTHORITY TO MODIFY THESE TERMS & CONDITIONS VERBALLY. SELLER OBJECTS TO AND REJECTS ANY TERMS BETWEEN BUYER AND ANY OTHER PARTY, AND NO SUCH TERMS, INCLUDING BUT NOT LIMITED TO ANY GOVERNMENT REGULATIONS OR “FLOWDOWN” TERMS, SHALL BE A PART OF OR INCORPORATED INTO ANY ORDER FROM BUYER TO SELLER, UNLESS AGREED TO IN WRITING BY AN AUTHORIZED REPRESENTATIVE OF SELLER.
PRICES AND TAXES: Buyer agrees to pay the prices quoted by Seller and is responsible for additional applicable shipping and handling charges, taxes and duties. Seller shall collect applicable taxes unless Buyer at the time of order submits a valid and complete tax exemption, reseller’s permit, or resale Buyer agrees to indemnify the Seller for any tax, penalty and interest incurred as a result of Seller’s good faith acceptance of a tax exemption, reseller’s permit, or resale certificate that is later found to be incomplete or invalid. Prices on special-order Goods may be subject to change before shipment; Seller shall notify Buyer of any change, and Buyer may at its discretion cancel the special-order Goods if the revised prices are unacceptable, without charge other than applicable Vendor related charges. Any increase in Seller’s costs associated with the imposition of new tariffs after the date of quotation may be passed through to Buyer.
PAYMENT AND SET OFF: Payment shall be in full prior to the agreement to schedule a ship date. Retainage shall not apply, and Buyer shall not hold back any retainage from Seller, even if retainage is part of any contract between Buyer and any other Payment is not contingent on Buyer’s ability to collect or obtain funds from any other party. Credit card sales are billed at the time of purchase. Buyer expressly represents it is solvent at the time it places any order with Seller. Sellers may obtain and use your credit history for credit evaluation purposes, if a credit line is extended.
REMEDIES FOR NON-PAYMENT: If Buyer fails to make any payment when due, Seller reserves the right to suspend Buyer agrees to pay a charge on all amounts past due at the rate of 1 ½% per month (18% per year) or the maximum lawful rate, whichever is less. In the event of non-payment, Buyer agrees to pay Seller’s reasonable attorney fees and court costs, if any, incurred by Seller to collect payment, and all applicable interest charges. Buyer acknowledges that transactions to which these terms relate are commercial transactions. To the extent not contrary to applicable law, Buyer (i) waives any available homestead exemption, (ii) irrevocably authorizes Seller to appoint a representative to appear in a court of competent jurisdiction to confess a judgment without process in Buyer’s favor for such amount that remain unpaid, and (iii) consent to immediate execution upon any such judgment. Buyer voluntarily and knowingly waives its right to notice, demand, presentment, protest and any hearing to which it may be entitled under any state or federal law relating to any right or remedy (including prejudgment remedies) that Seller may elect to use or of which it may avail itself.
IMPORTANT NOTICE: A CONFESSION OF JUDGMENT PROVISION AND OTHER WAIVERS CONTAINED HEREIN CONSTITUTES A WAIVER OF IMPORTANT RIGHTS YOU MAY HAVE. IF YOU DO NOT PAY ON TIME, THESE WAIVERS ALLOW SELLER TO OBTAIN A JUDGMENT AGAINST YOU WITHOUT FURTHER NOTICE OR YOUR PRIOR KNOWLEDGE. YOU ARE GIVING UP YOUR RIGHT TO NOTICE AND TRIAL. SELLER MAY OBTAIN JUDICIAL REMEDIES TO COLLECT AMOUNTS DUE REGARDLESS OF ANY CLAIMS YOU MAY HAVE (INCLUDING WITHOUT LIMITATION, CLAIMS FOR RETURNED OR FAULTY GOODS, FAILURE BY SELLER TO COMPLY WITH THIS AGREEMENT, OR ANY OTHER CAUSE).
TITLE AND RISK OF LOSS OR DAMAGE: As to Goods delivered by Seller’s truck, title passes upon delivery at the place Buyer receives possession; and, thereafter, all risk of loss or damage shall be on All other sales are F.O.B., point of shipment, and Buyer takes title and assumes responsibility for risk of loss or damage at the point of shipment for such sales. Claims for Goods damaged in transit are Buyer’s sole responsibility when not delivered by Seller’s truck.
QUOTATIONS: All quotations expire thirty (15) days from the date of the quotation unless otherwise noted on the This time limit applies even if Buyer uses the quotation to submit a job or project bid to any other party.
RETURN OF PRODUCTS AND ORDER CANCELLATION: All sales are final once payment is received, unless expressly written by the CEO of the “seller”, this includes all sales, including “bill and hold” If approval for the return has been provided by the CEO of the seller, then the goods must be returned in their original cartons, unopened and unused. Stock returns that are used, opened, and/or not in their original packaging may be subject to a minimum 35% restocking fee or the return will be refused based on the condition of the returned material. Applicable sales tax will be refunded where allowed by applicable law or statute in the case of a special exception with an approval for return by the CEO of the seller.
INTERPRETATION RESPONSIBILITY; PRODUCT USE AND SAFETY: Seller does not guarantee that the Goods it sells conform to any plans and specifications or intended When plans and specifications are involved, Buyer is solely responsible for verifying Seller’s interpretations of such plans and specifications, and it is Buyer’s sole responsibility to assure that Seller’s Goods will be accepted on any specific job. When Seller offers substitute Goods on any proposal, Buyer is solely responsible for confirming their acceptability. BEFORE BUYER USES OR INSTALLS ELECTRICAL PRODUCTS, IT IS BUYER’S RESPONSIBILITY TO CONSULT THE NATIONAL ELECTRIC CODE AND ANY PERTINENT LOCAL, STATE OR NATIONAL CODES, RULES OR REGULATIONS FOR APPROVED INSTALLATION PROCEDURES AND PRECAUTIONS. NOTHING SELLER SELLS IS FOR USE IN CONNECTION WITH “SAFETY-RELATED” APPLICATIONS OF A NUCLEAR FACILITY OR ANY HAZARDOUS ACTIVITY WHERE FAILURE OF A SINGLE COMPONENT COULD CAUSE SUBSTANTIAL HARM TO PERSONS OR PROPERTY.
DELIVERY: Seller is a distributor and not a manufacturer and factory shipping dates given in advance of actual shipment are approximate and not
EXCUSABLE DELAYS: Seller shall have no liability if its performance is delayed or prevented by causes beyond its reasonable control, including, without limitation, acts of nature, labor disputes, government priorities, transportation delays, insolvency or other inability to perform by Seller’s Vendor, or any other commercial impracticability. In the event of any such delay, the date of delivery or performance shall be extended for a period equal to the time lost by reason of delay. Should shipments be held or stored beyond the delivery date for convenience of Buyer, Seller may, at its option, assess reasonable charges for any expense incident to such
WARRANTIES
SELLER’S WARRANTIES: Seller warrants that all Goods sold are new unless otherwise designated and, upon payment in full by Buyer of the Goods, free and clear of any security interests or Buyer’s exclusive remedy for breach of such warranties shall be replacement with a new product (if applicable) or termination of any security interests or liens. Seller is a distributor and not a manufacturer and makes no independent warranties other than those set forth herein.
LIMITATIONS: THERE ARE NO OTHER WARRANTIES WRITTEN OR ORAL, EXPRESS, IMPLIED OR BY STATUTE. NO IMPLIED STATUTORY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
LIMITATIONS OF LIABILITY: UNLESS APPLICABLE LAW OTHERWISE REQUIRES, SELLER’S AND ANY VENDOR’S TOTAL LIABILITY TO BUYER, BUYER’S CUSTOMERS OR TO ANY OTHER PERSON, RELATING TO ANY PURCHASES GOVERNED BY THESE TERMS & CONDITIONS, FROM THE USE OF THE GOODS FURNISHED OR FROM ANY ADVICE, INFORMATION OR ASSISTANCE PROVIDED BY SELLER (BY ANY METHOD, INCLUDING A WEB SITE), IS LIMITED TO THE PRICE OF THE GOODS GIVING RISE TO THE NEITHER SELLER NOR ITS VENDORS SHALL BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY SPECIAL, INCIDENTAL, DIRECT, CONSEQUENTIAL OR PENAL DAMAGES (INCLUDING, BUT NOT LIMITED TO BACKCHARGES, LABOR COSTS, COSTS OF REMOVAL, REPLACEMENT, TESTING OR INSTALLATION, LOSS OF EFFICIENCY, LOSS OF PROFITS OR REVENUES, LOSS OF USE OF THE GOODS OR ANY ASSOCIATED GOODS, DAMAGE TO ASSOCIATED GOODS, LATENESS OR DELAYS IN DELIVERY, UNAVAILABILITY OF GOODS, COST OF CAPITAL, COST OF SUBSTITUTE GOODS, FACILITIES OR SERVICES, DOWNTIME, OR CLAIMS FROM BUYER’S CUSTOMERS OR OTHER PARTIES). IF SELLER FURNISHES BUYER WITH ADVICE OR OTHER ASSISTANCE WHICH CONCERNS ANY GOODS SUPPLIED HEREUNDER, OR ANY SYSTEM OR EQUIPMENT IN WHICH ANY SUCH GOODS MAY BE INSTALLED, AND WHICH IS NOT REQUIRED PURSUANT TO THESE TERMS & CONDITIONS, THE FURNISHING OF SUCH ADVICE OR ASSISTANCE WILL NOT SUBJECT SELLER TO ANY LIABILITY, WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHER GROUNDS.
MISCELLANEOUS
EXPORTS: If Goods are sold for export, Seller’s Standard Terms & Condition for Export Sales apply. Acceptance of export orders is not valid unless confirmed in writing by Buyer, NOT Seller, is responsible for compliance with all United States export control rules and regulations. Buyer shall not name Seller as shipper or exporter of record in connection with the export of any Goods purchased from Seller.
ANTI-MONEY LAUNDERING RESTRICTIONS: Seller rejects questionable orders and payments: Except for pre-approved credit arrangements, Seller rejects third-party payments, cashiers’ checks, money orders and bank Seller accepts only checks imprinted with Buyer’s name; wire transfers originated in Buyer’s account; letters of credit with Buyer as account party; and credit or debit cards in Buyer’s name. All payments must be by single instrument in the amount of the invoice, less credits, from banks acceptable to the Seller.
GOVERNING LAW: These Terms & Conditions and all disputes related to it shall be governed by the laws of the State of Florida, United States of America, without giving effect to its conflict of law rules.
BUYER PARTIES: For the purposes of these Terms & Conditions, the term “Buyer” shall mean the Buyer party set forth on the quotation or other sales agreement to which these Terms & Conditions are attached or in which they are incorporated by
SELLER PARTIES: For the purposes of these Terms & Conditions, the term “Seller” shall mean the Seller party set forth on the quotation or other sales agreement to which these Terms & Conditions are attached or in which they are incorporated by reference which may include Power Technology Solutions or any of its subsidiaries, affiliates, business units or divisions including but not limited to (i) Power Technology Solutions, LLC; (ii) Energy Technology Solutions.
Power Technology Solutions Smart Charging Access AGREEMENT BY EXECUTING A PURCHASE AGREEMENT, SALES AGREEMENT, INSTALLATION AGREEMENT, OR ANY OTHER AGREEMENT OR CONTRACT (COLLECTIVELY “SERVICES ORDER”) THAT INCORPORATES THIS Power Technology Solutions Smart Charging Access AGREEMENT, WHETHER DIRECTLY OR INDIRECTLY, OR THROUGH AN AUTHORIZED Power Technology Solutions RESELLER, DISTRIBUTOR, PARTNER OR CUSTOMER AGREES TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS Power Technology Solutions Smart Charging Access AGREEMENT. THE PERSON ENTERING INTO THIS AGREEMENT ON BEHALF OF CUSTOMER CONFIRMS THAT HE OR SHE HAS READ AND UNDERSTOOD THE TERMS AND CONDITIONS OF THIS AGREEMENT AND HAS THE AUTHORITY TO BIND CUSTOMER AND ITS RELATED PARTIES HERETO. This Power Technology Solutions Smart Charging Access Agreement (“Agreement”) is entered into by the parties to the SERVICES ORDER as of the date both parties have executed the SERVICES ORDER (the “Effective Date”). By executing a SERVICES ORDER, the parties agree to be bound by the applicable Services Orders, this Agreement and any other separately executed SERVICES ORDERs or Contracts incorporating this Agreement. Capitalized terms shall have the meanings defined in the Agreement. In consideration of the mutual promises and obligations in the Agreement, the sufficiency of which is hereby acknowledged, the parties agree as follows. 1. SERVICES a. Subject to the terms of the Agreement, Power Technology Solutions, LLC (hereafter “Power Technology Solutions” or “PTS”) grants Customer a non- transferable, non-licensable, non-exclusive Subscription to access for a term of 10 years billed annually and use of Power Technology Solutions EV OS Cloud Services during the Subscription Term. b. Customer may retain Power Technology Solutions to provide training in Power Technology Solutions Smart Charging Access as set forth in a SERVICES ORDER. c. Tax Power Technology Solutions EVOS functionality provides customers with an estimated calculation of locally applicable monthly sales and use taxes (or VAT, GST equivalents). Customers are solely responsible for payment in full of any accruing tax liabilities. Power Technology Solution’s role and responsibility is strictly limited to providing customers with customer’s estimated tax liability based on information available to Power Technology Solutions. Customers who do not utilize direct payment gateways’ merchant agreements remain solely responsible for payment in full of locally applicable monthly sales and use taxes (or VAT, GST equivalents). While Power Technology Solutions facilitates certain tax-related services including generating calculations of local tax figures, and collection of same on behalf of Power Technology Solutions customers, Power Technology Solutions customers are strictly liable in full for any legal tax obligations. Moreover, customers shall indemnify Power Technology Solutions in full for any outlay made by Power Technology Solutions arising from the customer’s tax obligation(s).
d. Payment Gateway Power Technology Solutions customers who contract with their payment gateway directly shall provide Power Technology Solutions with the accurate information necessary for Power Technology Solutions to maintain a viable direct funding service for every transaction that occurred on the customer’s charging station. Power Technology Solutions customers who contract directly with their payment gateway shall bear full responsibility for the payment, satisfaction, and compliance of all applicable tax laws. Customer is solely responsible for identifying and bringing to Power Technology Solution’s attention any alleged discrepancies along with the specific information necessary for Power Technology Solutions to evaluate any claim pertaining to Power Technology Solution’s calculations. Customers are permitted no more than 90 (ninety) days from issuance to assert any claim(s) arising from the alleged discrepancies. 2.PRICING, FEES, INVOICING, AND PAYMENT 2.1 Software a. Power Technology Solutions Smart Charging Access are available under a subscription model. The base cost for the subscription is set at a minimum of $780 per port, per year. This cost covers access to our cloud services/Power Protect, including system updates, customer support and hardware replacement. This transparency allows you to track and manage your costs effectively amongst many other features and benefits. 2.2 a. Revenue Sharing This Smart Charging Access agreement details revenue-sharing based on the ownership of the created site and is subject to change. The created site is the location where Power Technology Solutions hardware/software is installed. Ownership, also known as, Own and Operate, is defined as the party which purchases/supplies the EV charging hardware to the created site. b. Revenue sharing payments shall only be distributed after the Power Technology Smart Charging Access Agreement is signed and dated. Any revenue collected prior to the agreement being signed and dated shall not be owed or distributed to the property owner or customer. There will be no back dating of revenue sharing disbursements. If Power Technology Solutions Owns and Operates the Site: • • Power Technology Solutions Share: Power Technology Solutions will receive 80% of the site revenue. Customer Share: The customer will receive 20% of the site revenue. If the Customer Owns and Operates the Site: • • Power Technology Solutions Share: Power Technology Solutions will receive 20% of the site revenue. Customer Share: The customer will receive 80% of the site revenue.
c. Energy Consumption Fee: The cost for energy consumption is based on a minimum rate of $0.45 per kilowatt-hour (kWh) plus minimum $1.00 connection fee. This rate applies to all energy consumed during the charging sessions and is subject to change if both power technology solutions and the customer agree upon a new price. d. Occupancy Fee: If an electric vehicle (EV) is parked in a designated charging spot but is not actively charging per the software metrics, a minimum occupancy fee of $4 per hour will be applied. This fee ensures that the spot remains available for active users and compensates for the occupied space. Payment Cycle: Quarterly reimbursement will be generated through wire transfer including a deduction of transfer fee or check. a.Pricing Flexibility: Power Technology Solutions reserves the right to adjust pricing during the term of the subscription based on changes in energy costs, demand, and other relevant factors and is subject to change at any time at the sole discretion of an authorized Power Technology Solutions representative. b.Payments shall be due within seven (7) days of the applicable invoice date unless otherwise specified in a SERVICES ORDER. c.Services Fees for Power Technology Solutions Smart Charging Access are based on quotations of Power Technology Solutions to Power Technology Solution’s end users. d.Fees are exclusive of applicable Taxes and Regulatory Charges. Customers will reimburse Power Technology Solutions for Taxes and Regulatory Charges arising in connection with the Services. e.Late payment of fees: (i) will incur 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 payment was due until paid, and (ii) in the event Customer has not paid Services Fees within thirty (30)days of the due date, Power Technology Solutions reserves the option to suspend Power Technology Solutions Smart Charging Access until delinquent payments are paid in full or terminate this Agreement. f.If Customer in good faith disputes the amount of any invoice, Customer shall timely pay the undisputed amount and shall notify Power Technology Solutions in writing of the disputed amount no later than the date payment would otherwise be due, providing the reasons for the dispute. The parties will attempt in good faith to resolve the dispute within thirty (30) days after Power Technology Solution’s receipt of Customer’s notice of dispute (the “Resolution Period”), during which time Customer’s withholding of the disputed amount will not be considered a material breach of this Agreement. Upon resolution of the dispute, the Customer shall pay the resolved amount promptly within ten (10) days of mutual written agreement resolving the dispute. If the dispute is not resolved within the thirty-day (30) Resolution Period, then each party may pursue all other available remedies.
3.CARBON CREDIT OWNERSHIP Customer acknowledges and accepts, where permitted by law, that Carbon Credits derived from the use, deployment, installation, or any other methods of commercial or non-commercial utilization of Power Technology Solutions EV technology products or solutions belong exclusively to Power Technology Solutions, unless a written claim for from customer same is received by Power Technology Solutions within six (6) months of product and/or solution commencement by timely emailing Power Technology Solutions at support@powertechnologysolutions.net. 4.TERM AND TERMINATION a.The terms of the Agreement shall commence upon the Effective Date and shall continue for the duration of Power Technology Solutions Smart Charging Access. b.In the absence of a written non-renewal notice provided at least ninety (90) days prior to the end of the applicable Term, each Subscription Term shall automatically renew for Renewal Subscription Terms as set forth in the applicable SERVICES ORDER. c.Either party shall have the right to terminate the Agreement by written notice to the other party if (a) the other party has breached a material obligation under the Agreement or any SERVICES ORDER or the Contract, and such breach remains uncured for a period of thirty (30) days after written notice of such breach is sent to the other party; provided such breach is curable, it being understood that a breach of Sections 5.1 and 5.2 are incurable.; or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination of the Agreement by Customer for breach by Power Technology Solutions, Power Technology Solutions shall refund any prepaid Fees covering the remainder of the Subscription Term after the effective date of termination. Upon any termination of the Agreement by Power Technology Solutions for breach by Customer, Customer shall pay any unpaid Fees covering the remainder of the Subscription Term after the effective date of termination, and prepaid fees shall not be refunded. Termination of the Agreement by a party shall be without prejudice to any right or remedy of such party under the Agreement or applicable Law. If, during the cure period referenced in 3.3(a), Power Technology Solutions documents an effort to promptly cure the breach, then, notwithstanding anything to the contrary, Customer shall not terminate this Agreement or a SERVICES ORDER or the Contract while such good faith efforts are continuing. Power Technology Solutions’ efforts to cure the breach may not exceed 120 days from Customer’s notice. d.Notwithstanding any term in the Agreement to the contrary, Power Technology Solutions reserves the right to suspend the Power Technology Solutions Smart Charging Access, or portion thereof, or reject or cancel the transmission of any information through the Power Technology Solutions Smart Charging Access based upon (i) reasonable belief that the use of the Power Technology Solutions Smart Charging Access is in violation of applicable Laws, (ii) Customer’s failure to pay when fees are due, or (iii) an imminent compromise to the security or integrity of the network. As practicable depending on the circumstances, Power Technology Solutions will provide notice of the suspension and keep Customer reasonably informed of Power Technology Solution’s efforts to restore the Power Technology Solutions
EV OS Cloud Services. e.Except as otherwise stated therein, upon execution by both parties, each SERVICES ORDER shall be a non-cancelable, non-refundable order by Customer. The Fees and Subscription Term stated on each SERVICES ORDER shall be applicable only for that SERVICES ORDER. Fees shall apply during periods of suspension and as incurred for unauthorized use of the Power Technology Solutions Cloud Services. Customer’s purchase of the Power Technology Solutions Smart Charging Access is not conditioned on the availability of any future service or enhancement. Upon termination of this Agreement (or a SERVICES ORDER) for any reason all subscriptions granted hereunder and Customer’s access to the Services will terminate. 5.BREACH OF CONTRACT AND REVENUE COLLECTION 1.If the site is owned and operated by Power Technology Solutions, each port created under this agreement is expected to generate a minimum revenue of $30,000 by the end of the contract term. If a breach of contract occurs and the revenue target per port is not achieved by the end of the contract term, Power Technology Solutions reserves the right to collect the remaining amount from the current property owner necessary to meet this revenue target. 6.INTELLECTUAL PROPERTY a.All Intellectual Property Rights in the Services (and other materials or services provided hereunder) remain the exclusive property of Power Technology Solutions as applicable. Power Technology Solutions reserves all rights not expressly granted in this Agreement and own all rights in all Derivative Works of the Services (and other materials provided hereunder) and any copy, translation, modification, adaption or derivation (including any improvement or development) of the Services (and all other materials provided hereunder). b.No implied licenses are granted hereunder. Customer is granted no rights in or to the Services except as expressly set forth under a SERVICES ORDER. Customer shall not (a) modify or create any Derivative Works, functionally equivalent works, or translations of the Services or any other materials provided hereunder, (b) reverse engineer the Services or take any action that jeopardizes Power Technology Solutions rights or the rights of its licensors and service providers in any materials, including the Services, made available to Customer hereunder; (c) access the Services in order to build a competitive product or service or to assist anyone else to compete with Power Technology Solutions; or (d) use the Services in a way that violates any Law. Power Technology Solutions Smart Charging Access include tools that can be used to create content related to Customer Data. The algorithms, compilations, collation methods and anonymized analyses created from the use of Power Technology Solutions Smart Charging Access are considered Derivative Works and therefore are retained by Power Technology Solutions. Customer retains, however, non-anonymized analyses of Customer Data obtained from its use of such tools. c.As between Power Technology Solutions and Customer, the Customer Data are the proprietary material of Customer and shall be considered Customer’s Confidential Information. Customer grants Power Technology Solutions a non-exclusive, non-licensable (except to parties working on Power Technology Solution’s behalf), non-transferable, royalty-free license to access, process, store, transmit, and otherwise make use of the Customer Data as directed by Customer or as necessary to provide theServices and to otherwise fulfill its obligations under and in accordance with the Agreement. d.To the extent not already owned by Power Technology Solutions, Customer is identified by name or logo, Customer, on behalf of itself and its Related Parties, hereby grants Power Technology Solutions a perpetual, exclusive, royalty-free, worldwide license to use or disclose (or choose not to use or disclose), and create derivative works of Feedback for any purpose, in any way, in any media worldwide. e.Nothing in this Agreement precludes or limits Power Technology Solutions in any way from providing materials or services that are similar to materials or services provided or contemplated in this Agreement or developing deliverables or other materials or services that are similar to or compete with any materials or services developed as a result of this Agreement, regardless of their similarity to any Services. Power Technology Solutions will be free to use any concepts, processes, techniques, improvements, or other know-hows developed by Power Technology Solutions during the course of performing this Agreement free from any use restriction or payment obligation. 7. WARRANTIES a.Power Technology Solutions warrants that the (i) Professional Services and (ii) Maintenance and Support will be performed in a professional and workmanlike manner and in accordance with applicable requirements of this Agreement. b.Power Technology Solutions warrants that the Power Technology Solutions Smart Charging Access will materially conform to the specifications set forth in the Documentation. For purposes of Section 6, “Documentation” shall mean applicable technical published manuals or training material that accompany the Power Technology Solutions Smart Charging Access. c. Customer’s sole and exclusive remedy for breach of the warranties set forth in this section shall be for Power Technology Solutions to re-perform non-conforming services or to correct errors. d.EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 5, THE SERVICES ARE PROVIDED TO CUSTOMER ON AN “AS IS” ‘WHERE IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. Power Technology Solutions MAKES NO REPRESENTATIONS OR WARRANTIES THAT USE OF THE Power Technology Solutions Smart Charging Access WILL BE UNINTERRUPTED, TIMELY, COMPLETE, OR ERROR-FREE. 8.LIMITATION OF LIABILITY a.THE CUMULATIVE AGGREGATE LIABILITY OF A PARTY AND ALL OF ITS RELATED PARTIES (AND IN THE CASE OF Power Technology Solutions, ITS LICENSORS OR SERVICE PROVIDERS) UNDER THE AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES AND SHALL NOT EXCEED THE FEES PAID TO Power Technology Solutions DURING THE TWELVE MONTHS IMMEDIATELY PRIOR TO THE COMMENCEMENT OF THE DISPUTE FOR THE SERVICES THAT ARE THE SUBJECT OF THE DISPUTE. CUSTOMER AGREES THAT THIS LIMITATION ON LIABILITY FORMS A FUNDAMENTAL BASIS OF THE BARGAIN HEREUNDER, IN THE ABSENCE OF WHICH, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD HAVE BEEN DIFFERENT. b. IN NO EVENT SHALL EITHER PARTY OR ANY OF ITS RELATED PARTIES (AND IN THE CASE OF Power
Technology Solutions, ITS LICENSORS OR SERVICE PROVIDERS) BE LIABLE TO THE OTHER PARTY OR ANY OF ITS RELATED PARTIES (AND IN THE CASE OF Power Technology Solutions, ITS LICENSORS OR SERVICE PROVIDERS) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE DAMAGES OF ANY CHARACTER, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING LOSS OF BUSINESS OR GOODWILL, WORK STOPPAGE, LOST PROFITS, REVENUE, DATA OR USE, COMPUTER FAILURE OR MALFUNCTION AND TELECOMMUNICATIONS CHARGES FROM UNAUTHORIZED ACCESS), COVER DAMAGES , OR OTHER SIMILAR DAMAGES REGARDLESS OF THE LEGAL THEORY ASSERTED, WHETHER IN CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY OR ANY OF ITS RELATED PARTIES (AND IN THE CASE OF GENESYS, ITS LICENSORS OR SERVICE PROVIDERS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF AN AGREED REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS HELD UNENFORCEABLE FOR ANY OTHER REASON. c. a. THIS LIMITATION OF LIABILITY SHALL NOT OPERATE SO AS TO: (I) REDUCE ANY AMOUNTS DUE AS FEES; (II) LIMIT LIABILITY ARISING IN CONNECTION WITH INDEMNIFICATION OBLIGATIONS; OR (III) LIMIT LIABILITY FINALLY DETERMINED TO HAVE RESULTED FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THIS SECTION WILL NOT APPLY TO DAMAGES THAT CANNOT BE LIMITED OR EXCLUDED BY LAW (IN WHICH EVENT THE LIMITATION WILL BE THE MINIMUM AMOUNT REQUIRED BY LAW). 9. CONFIDENTIALITY During the Confidentiality Period, recipient shall (a) protect the confidentiality of all Confidential Information using the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care) to prevent unauthorized use or disclosure; (b) not use any Confidential Information except as expressly authorized in the Agreement; (c) not disclose, orally or in writing, any Confidential Information to any person, other than an employee, consultant or agent of recipient bound by terms at least as restrictive as those set forth herein with a need to know such Confidential Information. b. The obligations in Section 8.1, however, shall not apply to any information which: (a) is already in the public domain or becomes available to the public through no breach of the Agreement by recipient; (b)was in the recipient’s possession prior to receipt from disclosure, as proven by recipient’s written records; (c) is received by the recipient from a third party free to disclose such information to recipient; or (d) is independently developed by recipient without use of the Confidential Information. c. Nothing in this Agreement shall prevent a party from disclosing Confidential Information to the extent required by applicable Law, judicial or administrative process, provided that recipient shall: (i) notify disclosure of any duty to disclose, affording opportunity for disclosure to take protective actions (except to the extent notice is prohibited by Law), and (ii) disclose only as much of the Confidential Information as required, maintaining all proprietary notices applicable to such Confidential Information.
d.Upon written request in connection with termination of the Agreement, each party shall deliver to the other party or destroy all copies of such other party’s Confidential Information. Notwithstanding the foregoing, recipient may retain an archival record of Confidential Information to the extent required pursuant to applicable Law subject to recipient’s compliance with the remaining terms of this section. 10. a. USE OF THE SERVICE Customer shall not, and shall not permit or authorize others, to use the Power Technology Solutions Smart Charging Access for any of the following: i. to violate applicable laws; ii. iii. iv. to transmit malicious code; to transmit 911 or any emergency services (or reconfigure to support or provide such use); to interfere with, unreasonably burden, or disrupt the integrity or performance of the Power Technology Solutions Smart Charging Access or third-party data contained therein; v. to attempt to gain unauthorized access to systems or networks; or vi. to provide the Power Technology Solutions Smart Charging Access to a non-user third party, including but not limited to resale, license, or lease. b.Customer will use commercially reasonable efforts to prevent and/or block any prohibited use by Customer personnel or Customer’s Users. c.Customer will maintain any reasonable, appropriate administrative, physical, and technical level of security regarding its account ID, password, antivirus and firewall protections, and connectivity with the Power Technology Solutions Smart Charging Access. d.If the Power Technology Solutions Smart Charging Access will be used to transmit or process Sensitive Information, Customer will ensure that all Sensitive Information is captured and used solely via the use of available Security Feature 11.CHOICE OF LAW AND JURISDICTION This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, U.S.A., exclusive of conflicts of law principles. The parties agree that any action brought by either party against the other in any court, whether federal or state, shall be brought within Manatee County, Florida, in the applicable state and federal judicial district.
2.NO WAIVER No waiver of rights under this Agreement by either party shall constitute a waiver of any other rights under this Agreement or any subsequent breach. 13. ASSIGNMENT Customer shall not, voluntarily, by operation of law, or otherwise, assign its rights under this Agreement without the prior written consent of Power Technology Solutions, and any attempted assignment in violation of the foregoing is void. Subject to the foregoing, this Agreement is binding on, and will insure to the benefit of, the parties of this Agreement and their respective successors and permitted assigns. 14. ENTIRE AGREEMENT This Agreement constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral, with respect to such subject matter. 15. FORCE MAJEURE Power Technology Solutions shall not be liable hereunder by reason of any failure or delay in the performance of this Agreement on account of strikes, shortages, riots, acts of terrorism, insurrection, fires, wide-spread disease or illness, flood, storm, explosions, acts of nature, war, governmental action, labor conditions, power outages, earthquakes, failures of service providers, or any other cause which is beyond its reasonable control, whether similar or not to the foregoing. 16. EXPORT COMPLIANCE The Power Technology Solutions Smart Charging Access, Software and associated Power Technology Solutions products may be subject to U.S. export control laws and regulations. Customer shall not allow any Authorized User to access the Power Technology Solutions EV OS Subscription Services in U.S. embargoed countries or in violation of any U.S. export law or regulation. Customer may not remove or export from the United States or allow the export or re-export of the Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Customer represents and warrants that, on start of service Term, Customer is authorized to enter into this Agreement in its entirety and duly binds Customer by Customer’s use of the Power Technology Solutions Smart Charging Access. This contract has been granted a 30 day notice of cancellation.