Statement of Work - EVSE Installation
This Statement of Work (“SOW”) is at all times subject to the terms and conditions set forth in the main body of the Agreement into which it is incorporated. Any capitalized term used, but not defined, in this SOW will have the meaning given to that term in the main body of the Agreement. This SOW incorporates by this reference any installation quote (“Quote”) and related installation Work Order (the “Work Order”) that are countersigned by EVC and the Subscriber (collectively, the “Parties”, each a “Party”).
1. Services.
a.) Identification of Installer. EVC will identify an appropriate EVSE installer (“Installer”) to perform the services set forth in the Work Order (the “Work”). In the event an onsite inspection is required, the onsite inspection shall be provided by the Installer and shall be scheduled by the Installer and Subscriber.
b.) Site Conditions. If EVC or the Installer must obtain access to other properties in the course of the onsite inspection or any other Work, Subscriber shall secure permission for such and hold harmless and indemnify EVC and the Installer and its employees and agents against all actions and consequences arising or relating to the use of the said properties, including but not limited to damage done in the normal course of the Work, excluding negligence and intentional misconduct, and for securing said property and its contents during and after Work.
c.) Change Order Process. Either party may request changes to the Work Order by providing a written request for changes (a "Change Request") specifying the desired change with at least the same degree of detail as the original Work Order. Following EVC’s receipt of a Change Request from Subscriber, EVC shall direct the Installer to submit to Subscriber a written response, outlining the tasks to be performed by each party, schedule and cost changes and any other items applicable to the Change Request (a "Change Response") within ten (10) business days. If the Change Request is initiated by EVC or the Installer, the aforementioned details shall be included in the Change Request. If Subscriber provides EVC with signed acceptance of the Change Response within ten (10) business days of its receipt, the Change Response will amend and become a part of the applicable Work Order. If Subscriber fails to provide EVC with signed acceptance of the Change Response within ten (10) business days, the Change Response will be deemed rejected, and EVC will not have any responsibility to complete the portion of the work which was the subject of the Change Request.
d.) Undetected Conditions. If conditions and/or circumstances are encountered at the project site which are concealed, pre-existing physical conditions (such as dry rot, defective wiring concealed inside walls, in underground conduit, etc.), or unknown physical conditions of an unusual nature, which differ materially from that which is visually ascertained, Subscriber agrees such circumstances are outside the control of EVC and further agrees to pay for any additional labor or materials, including repair to damaged equipment, caused by such conditions and/or circumstances.
e.) Inspection and Final Acceptance. EVC will notify Subscriber of the completion of the Work (“Notice of Completion”). Subscriber will then determine within a reasonable timeframe thereafter whether the Installer has completed the Work in accordance with the Work Order, in no event to exceed ten (10) business days after Subscriber’s receipt of the Notice of Completion. If Subscriber does not notify EVC in writing within such ten (10) business days that it does not believe the Work has been completed, Subscriber will be deemed to have waived its right to claim that the Work has not been completed.
f.) Personnel and Performance. The Work may be performed by Installer’s agents, third-party contractors and other staff (“Installer’s Personnel”) so long as (A) the Installer remains liable for the performance of all of such Work; (B) Installer ensures that all Installer Personnel are properly licensed and qualified to perform the work that they are engaged to perform; and (C) Installer Personnel are prohibited from subcontracting its services hereunder to other persons. Installer shall be responsible to ensure that all such Installer Personnel comply with the Work Order, any applicable additional specifications.
2. Limited Warranty for Installation.
a.) Warranty of Performance. EVC warrants that the Installer’s materials and workmanship will be free from defects for one year after completion of the Work in accordance with the specifications set forth in the Work Order. Unless otherwise specified in writing, EVC’s responsibilities under this warranty are limited to causing the Installer to repair or replace defective parts and performing the services necessary to correct the defect, and in no case shall EVC’s liability under the warranty exceed the cost of the Work. If Installer is unable to repair the defects, EVC will engage another installer to correct the Work. In the event the Work is not corrected within a reasonable amount of time, Subscriber will be entitled to a refund of the amount paid by Subscriber with respect to the defective parts or labor. The warranty liability of EVC shall in no event exceed the refund of such amount. If EVC or the Installer responds to a warranty call and it is determined that the cause of the non-conformance is other than the Installer’s labor or materials, EVC will invoice Subscriber for the fees and expenses incurred for the warranty call. In furtherance of Section 8(d) of the MSA, the foregoing warranty is in lieu of all other warranties, express or implied, and Sections 8(b) and 8(c) of the MSA do not apply to the Work performed under this SOW.
b.) Limitations. The warranty in Section 2(a) above does not cover problems caused by misuse, negligence, or damage, or by acts outside of EVC’s or the Installer’s control, including but not limited to, acts of God, actions by any governmental authority (whether valid or invalid), fires, floods, windstorms, explosions, riots, natural disasters, sabotage, inability to obtain power, unavailability of materials or equipment, acts of terrorism, or earthquake. In the event that a manufacturer of any materials used as part of the Work offers a warranty, said manufacturer’s warranty shall negate and supersede any warranty from EVC.
c.) Qualifications. The Work shall be performed by persons who are adequately skilled and shall be performed in compliance with any required licenses, permits and/or mandated insurance necessary for providing the Work as set forth in the applicable Work Order. Installer shall obtain at its own cost all licenses (including professional licenses), permits, certificates and authorizations necessary to perform the Work in all jurisdictions where any part of the Work is to be performed.
d.) Manufacturer’s Warranties. Notwithstanding anything to the contrary contain this SOW, if any goods or materials provided by the Installer in the performance of the Work are warrantied by a third-party manufacturer, then the Installer shall transfer to Subscriber all such warranties (and deliver all documents evidencing such warranties). Installer makes no warranty on such goods and materials.
e.) Notice of Warranty Claims. Subscriber shall contact EVC within forty-eight (48) hours of discovery of any warranty claim pursuant to this Section 2. Failure of Subscriber to so notify the Installer may result in further failure or other further malfunction or degradation. Therefore, neither EVC nor the Installer shall be liable for any such warranty claims for which notice is received after forty-eight (48) hours of discovery of the warranty claim. EVC will respond with reasonable promptness, excluding holidays, and will dispatch the Installer to inspect the conditions surrounding the warranty claim. Subscriber agrees that upon discovery of any allegedly defective Work, the Installer will have the first opportunity to repair the allegedly defective Work. The failure of Subscriber to allow the Installer the first opportunity to repair the allegedly defective Work shall void all warranties, express and implied hereunder. Neither EVC nor the Installer is responsible for reimbursement for Work performed by any third party.
f.) Exclusions. EVC’s Quote and Work Order do not include, and EVC shall not be liable for, ancillary trades or services that are not directly quoted as part of the Work, including repair or replacement of drywall, stucco, roof, asphalt, concrete, flooring, tile, windows, fixtures, plumbing, or personal property.
g.) Pre-existing Conditions. EVC and Installer shall not be liable for problems caused by pre-existing electrical code violations or by Subscriber or site owner-provided equipment, fixtures or materials. In such cases, EVC and Installer shall not be liable to Subscriber for any delay in performing Work or any loss, cost, or damage arising from such delay.
h.) Concealed Conditions. Crimp-splice removal or other troubleshooting is based upon visual observation of the existing conditions and is not meant to be technically exhaustive to cover past, present, or future electrical load usage, nor to imply that every component was inspected or that every possible defect was discovered. Any concealed component or condition of existing wiring is excluded from the warranty set forth in this Section 2.
i.) Suggested Remediation. If suggested options, recommendations or remediations for pre-existing conditions (for example, code violations or prior faulty work) are not remedied by the Subscriber, and a failure is subsequently experienced as a result of such pre-existing conditions, EVC and the Installer shall not liable for any resulting damages, and Subscriber hereby waives any such claims against EVC and the Installer.
j.) Agency Requirements. Any additional utility or municipal agency requirements for overhead, trenching, underground conduit or wiring related to service upgrades is not included in the Quote or Work Order. EVC and the Installer shall not be responsible for increased electrical load usage beyond control of EVC or the Installer that causes tripped circuit breakers, GFI’s or other problem(s) in circuit. Installer will not perform any work or trade other than that which it is licensed. Unless otherwise stated in the applicable Work Order, paint, plaster, wood, stucco, concrete, asphalt and landscaping restoration are the responsibilities of Subscriber.
k.) Pre-existing Hazardous Conditions. Neither EVC nor Installer have any information with respect to asbestos or other hazardous materials or substances in any portion of the Subscriber’s or site host’s premises and neither have conducted any investigation in connection herewith. Installers do not perform asbestos or other hazardous materials or substance removal and shall have no responsibility whatsoever with respect thereto. Subscriber expressly releases both EVC and the Installer from any liability whatsoever and for any claims arising out of the presence, release, remediation or removal of asbestos or other hazardous materials and substances and for any costs, losses or damages Subscriber may suffer or sustain if any asbestos or other hazardous materials or substances are found to exist on the Subscriber’s or site host’s property, or if, in order to obtain a building permit for the Work, any remediation action or work, including investigation is required to be performed on the Subscriber’s or site host’s premises concerning asbestos or other hazardous materials or substances. In the event such hazardous substances are discovered, all work by Installer will cease until such time as Subscriber has, at Subscriber’s expense, caused said asbestos or other hazardous materials or substances to be removed in compliance with all applicable laws relating thereto.
l.) Limited Warranty. FOR THE AVOIDANCE OF DOUBT, SECTION 8(d) OF THE MAIN BODY OF THE AGREEMENT APPLIES TO THIS SOW.
3. Permits. The Installer will work with Subscriber to assist in applying for and obtaining permits required by state, county or municipal authorities with respect to the Work. Access to the premises for an agent of such authorities must be provided by Subscriber within a reasonable time of any request. Should reasonable access not be provided, it may result in additional charges to the Subscriber. Notwithstanding Installer’s assistance, Subscriber remains liable to ensure permits have been issued and any inspections completed, and EVC will invoice Subscriber for the permitting fees. If at any time the administrative authority asks for additional work not included within the original Work Order, the additional work is the responsibility of the Subscriber unless such responsibility has been assumed by EVC pursuant to an executed change order in accordance with Section 1(c) of this SOW. All third party notices related to Work performed by Installer which are sent to the Subscriber or the site owner must be forwarded to EVC and Installer as soon as possible.
4. Pricing and Payment. Subscriber will pay EVC the Fees for the Work as set forth in the applicable Quote and/or Work Order.
a.) If a Quote is priced on a not-to-exceed basis, the price includes materials and labor. However, any items that are not included in the Not to Exceed price, including , without limitation, permit fees and engineering fees, will be specified in the proposal.
b.) If a Quote is priced as time and materials, the price will be based upon time spent (multiplied by an agreed-upon hourly rate per service provider), plus the cost of materials and any other related job expenses.
c.) No deduction shall be made from payments due under a Quote and/or Work Order on account of penalty, liquidated damages, back-charges, for alleged defects in the Work. Furthermore, Subscriber agrees and recognizes that payment when due is an express condition precedent to Installer continuing Work. Subscriber recognizes that the failure to pay for Work when due shall entitle EVC and Installer to terminate the Work immediately. In the event that EVC and/or Installer terminates Work for non-payment as herein described, EVC and Installer shall be entitled to payment of all of its expenses including, but not limited to, cost of labor, materials, a reasonable allowance for overhead and profit, and all other compensation as allowed by law.
5. Indemnification.
a.) EVC shall indemnify, defend, and hold harmless Subscriber and Subscriber’s agents, officers, directors, employees, subcontractors and representatives from and against any and all Losses resulting from third-party Claims arising out of, or resulting from (i) a violation of any Legal Requirements or permit by EVC, an Installer, or their respective affiliates agents, employees, vendors or subcontractors in connection with the Work; or (ii) the gross negligence or willful misconduct of EVC of the Installer in connection with the performance of the Work. The indemnification contained in this Section 5(a) survives for a period of two (2) years following the completion of the applicable Work.
b.) Subscriber shall indemnify, defend, and hold harmless EVC, the Installer, and their respective affiliates, agents, officers, directors, employees, subcontractors and representatives from and against any and all Losses resulting from third-party Claims arising out of, or resulting from (i) a violation of any Legal Requirements or permit by Subscriber, site owner, or their respective affiliates, agents, employees, customers, vendors or subcontractors (collectively, "Personnel"); or (b) the gross negligence or willful misconduct of Subscriber, site owner, or their respective Personnel in connection with the Work. The indemnification contained in this Section 5(b) survives for a period of two (2) years following the completion of the applicable Work.