Hardware Standard Terms and Conditions

These Hardware Standard Terms and Conditions (including the Sales Order into which these Hardware Standard Terms and Conditions are incorporated, the “Agreement”) are entered into by and between EV Connect, Inc., a California Corporation  with offices located at 26521 Rancho Parkway S, Lake Forest, CA 92630, E-Mail: legal@evconnect.com (“EVC”), and the subscriber who is agreeing to this Agreement (“Subscriber”) as of the date it is agreed to by Subscriber (“Effective Date”).  This Agreement may be amended by EVC from time to time by posting an updated version, and Subscriber’s continued use of the EVC’s services constitutes acceptance of the amended terms

1. DEFINITIONS.

a.) "EVSE" means electric vehicle supply equipment used to charge electric vehicles, including Level 2 (AC) and Level 3 (DC) chargers.

b.) “Expenses” means the out-of-pocket expenses incurred by EVC in connection with its performance of any Related Services.

c.) “Legal Requirements” means all applicable laws, rules, regulations, governmental permits, or other binding determinations of any governmental authorities.

d.) “Related Services” means any services that EVC has agreed to provide to Subscriber in a Statement of Work or related agreement.

e.) "Sales Order” has the meaning set forth in Section 4(a) of this Agreement.

f.) “Statement of Work” means a written statement of work executed by the parties that describes any Related Services to be provided by EVC to Subscriber.

g.) “Subscriber Affiliate” means any third party that enters into a written agreement with Subscriber permitting such third party to use EVSE (including, without limitation, franchisees of Subscriber) for charging electric vehicles or developing applications that are integrated with the EVSE.

2. DELIVERY.

a.) Delivery and Risk of Loss. All EVSE will be delivered to Buyer directly from the EVSE manufacturer or distributor to address provided by Buyer on the Sales Order. Buyer assumes all risk of loss with respect to EVSE, , and Buyer is deemed to be the purchaser of the EVSE from the time the order is placed, regardless of whether the purchase is direct with the manufacturer or through EVC as a reseller; provided, however, that title to the EVSE will only pass from the manufacturer or distributor to Buyer upon full payment by Buyer. All shipping will be arranged by the EVSE manufacturer or distributor, and charges will be set forth in the Sales Order and will be paid by Buyer. EVC will use commercially reasonable efforts to ensure that EVSE manufacturers deliver EVSE in accordance with this Sales Order. Buyer may not cancel an order or receive a refund of any amounts paid after EVC and Buyer execute the Sales Order.

b.) Remedies. If Buyer breaches any of its obligations hereunder, EVC may (a) suspend delivery of EVSE, (b) declare any unpaid balance immediately due and payable, (c) repossess the EVSE or any part thereof, and/or (d) exercise all other rights and remedies at law or in equity. Buyer will reimburse EVC for all costs and fees incurred to collect amounts owed hereunder, including, without limitation, reasonable attorney’s fees. Buyer hereby irrevocably appoints EVC as the Buyer’s lawful attorney-in-fact to execute and file all documents necessary or desirable to effectuate the purposes of this Section, including the filing of a UCC-1.

3. PROPRIETARY RIGHTS. Buyer may not, and may not allow others, to copy, disassemble, reverse translate, reverse engineer or in any manner decode, or customize the EVSEs for any reason or modify or create any derivative works based upon the EVSEs.

4. PAYMENT.

a.) Invoices; Security Interest. Payment for EVSE is due as follows: (i) 25% of one-time cost is invoiced upon execution of the Sales Order, and (ii) 75% of one-time cost is invoiced upon shipment from the EVSE manufacturer. Payment on invoices is due (30) days from the date of the invoice. Interest will be charged at the rate of 1.5% per month or the highest lawful rate, whichever is less, on all overdue amounts. Buyer hereby grants EVC a security interest in the EVSE and any proceeds thereof to secure all of Buyer’s obligations under this Agreement, Upon request by EVC, Buyer will execute any instrument required to perfect EVC’s security accordance with the Sales Order. Buyer may not cancel an order or receive a refund of any amounts paid after EVC and Buyer execute the Sales Order. EVC has the right to reschedule or cancel any order of Buyer if Buyer’s account is delinquent. If EVC believes that the financial condition of Buyer at any time does not justify delivery upon the payment of the terms specified, EVC may require full or partial payment in advance.

b.) Taxes.  In addition to the price of the EVSEs on the Sales Order, Buyer will also be responsible for payment of all federal, state and local excise, sales, use and similar taxes, and all import, export or custom duties, tariffs, or like charges relating to the sale, shipment, delivery, or use of the EVSEs to Buyer. Subscriber will also be responsible for payment of all taxes (other than taxes based on EVC’s income), fees, duties, and other governmental charges, and any related penalties and interest, arising from the payment to EVC under this Agreement, whether collected by taxing authorities pursuant to existing Legal Requirements or Legal Requirements enacted in the future. Subscriber will pay all Fees to EVC free and clear of, and without reduction for, any withholding taxes. When applicable, taxes will be invoiced in accordance with this Section 4(b).

5.  TERM; TERMINATION.

a.) Term. The term of this Agreement will commence on the Effective Date and will continue for the period set forth in the Sales Order (the “Initial Term”).  Thereafter, this Agreement will automatically renew for successive one (1) year periods (each, a “Renewal Term”; and together with the Initial Term, the “Term”) unless either party notifies the other party of its intention not to renew this Agreement at least one hundred eighty (180) days before the end of the then-current Renewal Term.

b.) Termination.  Either party may terminate this Agreement by providing written notice to the other party if the other party materially breaches this Agreement and such breach is not cured within thirty (30) calendar days after written notice thereof by the non-breaching party. Upon a termination of this Agreement, all Statements of Work then in effect will automatically terminate as well.   

c.) Effects. Upon the expiration or termination of this Agreement for any reason: within thirty (30) days, each party will, at the other party’s option, either destroy or permanently erase all copies of the other party’s Confidential Information under its control; provided, however, that each party may retain one archival copy the other party’s Confidential Information. Upon any termination of this Agreement, Subscriber will still be obligated to pay all Fees and Expenses that have accrued pursuant to this Agreement prior to the effective date of termination within five (5) days after such date of termination. Either party’s termination of this Agreement will be without prejudice to any other right or remedy that it may have at law or in equity, and will not relieve either party of breaches occurring prior to the effective date of such termination.  Sections 1, 2(b), 2(e), and 4-11, and any other provisions in any Exhibits to this Agreement that by their nature would reasonably be expected to survive, will survive the expiration or termination of this Agreement. 

6. LIMITED WARRANTY.

a.) Warranties. EVC hereby conveys to buyer any and all right, title, and interest in and to any warranties provided by the applicable manufacturer(s) of the EVSE to EVC upon EVC’s purchase of the EVSE (the “Warranties”). Buyer has determined that EVSE conforming to such Warranties will satisfy its contemplated use of the EVSE. Buyer’s exclusive remedy for breach of the warranty above is that EVC, at its option, will use commercially reasonable efforts to get the applicable manufacturer of EVSE to (i) repair or replace the non-conforming EVSE or (ii) provide a credit to Buyer for the purchase price of the non-conforming EVSE, in each case provided Buyer returns the EVSE to EVC upon EVC’s request. Buyer waives all rights of offset.

b.) General Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 6(a), EVC’S SERVICES HEREUNDER ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND EVC EXPRESSLY DISCLAIMS ALL WARRANTIES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WHETHER EXPRESS, IMPLIED, OR STATUTORY, AS TO ANY ASPECT OF EVC’S SERVICES, ANY RELATED SERVICES, OR ANY OTHER ASPECT OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. EVC DOES NOT WARRANT THAT THE EVSE OR RELATED SERVICE WILL MEET ALL OF SUBSCRIBER’S REQUIREMENTS, THAT ITS ACCESSIBILITY OR OPERATION WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE, THAT THE ELECTRICAL, INTERNET, WIRELESS, OR CELLULAR NETWORKS NECESSARY TO OPERATE THE EVSE WILL BE AVAILABLE, OR THAT THE EVSE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EVC IS NOT LIABLE TO SUBSCRIBER FOR ANY LOSS OR CORRUPTION OF SUBSCRIBER CONTENT RELATED TO THE EVSE. 

7. LIMITATION OF LIABILITY. NO EVC REPRESENTATION OR OTHER AFFIRMATION OF FACT REGARDING EVSE, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACTIY, SUITABILITY FOR USE OR PERFORMANCE OF PRODUCTS, WHETHER MADE BY EVC EMPLOYEES OR OTHERWISE, WILL BE DEEMED TO BE A WARRANTY BY EVC FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF EVC WHATSOEVER UNLESS CONTAINED IN THIS AGREEMENT. EVC’S AGGREGATE LIABILITY TO BUYER UNDER THE SALES ORDER WILL NOT EXCEED THE AMOUNT PAID BY BUYER TO EVC UNDER THE SALES ORDER. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN TORT, CONTRACT, INDEMNITY, STATUTORY, OR OTHERWISE) WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD-PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, GOODWILL, LOST PROFITS OR LOST DATA, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING FROM SUCH PARTY’S OR THIRD PARTY’S PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT OR THE OPERATION OF SUCH PARTY’S BUSINESS.

8. INDEMNIFICATION.

a.) EVC.  EVC will, at its sole expense, defend, indemnify, save and hold harmless Subscriber and Subscriber’s officers, directors, agents and employees from any and all damages, losses, liabilities, costs or expenses, including reasonable attorneys’ fees (collectively, “Losses”), resulting from third-party claims, demands, suits, or proceedings (collectively, “Claims”) arising out of or relating to (i) EVC’s breach of its representations, warranties, or covenants set forth in this Agreement, (ii) EVC’s gross negligence or willful misconduct.  Notwithstanding the foregoing, EVC’s indemnity obligation in this paragraph will not apply to the extent that such obligation arises from (i) any use of the EVSE not in accordance with the terms of this Agreement or any Legal Requirements; (ii) any use of the EVSE in combination with other services, products or data provided by Subscriber or third parties; or (iii) any modification of the EVSE by Subscriber or any third party. 

b.) Subscriber.  Subscriber will, at its sole expense, defend, indemnify, save and hold harmless EVC and EVC’s officers, directors, agents and employees from any and all Losses resulting from Claims arising out or relating to (i) an alleged breach by Subscriber or any Subscriber Affiliate of any representation, warranty or covenant of Subscriber in this Agreement; (ii) any representations or warranties made by Subscriber to a Subscriber Affiliate, or other third party concerning any aspect of the EVSE or Related Services; (iii) acts or omissions of Subscriber, or any Subscriber Affiliate, in connection with Subscriber’s use of the EVSE; and (v) Subscriber’s gross negligence or willful misconduct.

c.) Requirements.  Any party seeking indemnification under this Agreement will (i) promptly notify the indemnifying party in writing regarding any facts that may give rise to a claim for indemnification under this Agreement (provided that any delay in notification will not relieve the indemnifying party of its obligations hereunder except to the extent that the indemnifying party is actually prejudiced by such delay); (ii) provide the indemnifying party with reasonable information, assistance and cooperation in defending the lawsuit or proceeding (at the indemnifying party’s expense, to the extent of any out-of-pocket expenses); and (iii) give the indemnifying party full control and sole authority over the defense and settlement of such claim, subject to the indemnified party’s approval of any such settlement, which approval will not be unreasonably withheld or delayed.

9. INSURANCE.  During the Term, EVC will maintain, with reputable insurance companies, the following insurance coverages: (a) workers’ compensation insurance as required by Legal Requirements, (b) general liability insurance with a minimum limit of $1,000,000 per occurrence and $2,000,000 annually, (c) commercial umbrella/excess liability insurance with a minimum limit of $2,000,000 per occurrence and $2,000,000 annually, (d) professional liability insurance with a minimum limit of $1,000,000, and (e) cyber insurance with a minimum limit of $3,000,000. Upon Subscriber’s request, EVC will provide certificates of insurance evidencing the insurance coverages set forth above.

10. MISCELLANEOUS.

a.) Arbitration.  In the event of any dispute, claim or controversy between the parties arising out of or relating to this Agreement, whether in contract, tort, equity or otherwise, and whether relating to the meaning, interpretation, effect, validity, performance or enforcement of this agreement, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim or controversy will be resolved by and through an arbitration before one (1) arbitrator in Los Angeles, CA, to be administered by Judicial Arbitration and Mediation Services, Inc., or its successor, pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules.  Both the foregoing agreement of the parties to arbitrate any and all such disputes, claims and controversies, and the results, determinations, findings, judgments and/or awards rendered through any such arbitration will be final and binding on the parties and may be specifically enforced by legal proceedings in any court of competent jurisdiction.  This clause will not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The costs of the arbitrator, the arbitration proceeding, any proceeding in court to confirm or to vacate any arbitration award, and each party’s reasonable attorneys’ fees and costs will be borne by the unsuccessful party or, at the discretion of the arbitrator(s), may be prorated between or among the parties in such proportion as the arbitrator(s) determine(s) to be equitable and will be awarded as part of the arbitrators’ award.

b.) Export Restrictions.  Subscriber understands and acknowledges that EVC is subject to regulation by agencies of the U.S. government, including the U.S. Department of Commerce, that prohibit export or diversion of certain products and technology to certain countries. Any and all obligations of EVC to provide access to the EVSE are subject in all respects to such United States laws and regulations as from time to time govern the license and delivery of technology and products abroad by persons subject to the jurisdiction of the United States, including the Export Administration Act of 1979, as amended, any successor legislation, and the Export Administration Regulations (“EAR”) issued by the Department of Commerce, International Trade Administration, Bureau of Export Administration (“BXA”).  Subscriber agrees to comply in all respects with the export and re-export restrictions applicable to the EVSE and will otherwise comply with the EAR or other United States laws and regulations in effect from time to time. 

c.) Entire Agreement; Amendments. This Agreement, including any exhibits hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof. This Agreement supersedes all prior agreements or representations, oral or written, regarding such subject matter, including, without limitation,  any purchase orders or other business forms drafted by Subscriber, whether or not signed by EVC, which are hereby terminated and of no further force or effect. EVC may amend this Agreement at any time, and Subscriber’s continued use of the EVSE shall constitute acceptance of such amendment.

d.) Waivers.  The waiver by either party of a breach of or a default under any provision of this Agreement will be in writing and will not be construed as a waiver of any subsequent breach or default under the same or any other provision of this Agreement.  No delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operates as a waiver of any right or remedy.   

e.) Severability.  If the application of any provision of this Agreement to any particular facts or circumstances will be held to be invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, then (i) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement will not in any way be affected or impaired thereby and (ii) such provision will be enforced to the maximum extent possible so as to effect the intent of the parties and reformed without further action by the parties to the extent necessary to make such provision valid and enforceable.

f.) Assignment. The rights granted and obligations undertaken in this Agreement are personal to Subscriber and Subscriber agrees not to transfer, assign or sublicense such rights or obligations to any third-party. Any attempted transfer, assignment or sublicense of such rights or obligations by Subscriber will be null and void.

g.) Relationship.  The relationship of EVC and Subscriber established by this Agreement is that of independent contractors, and nothing contained in this Agreement will create or be construed to create any partnership, joint venture, agency, franchise, sales representative, employment or fiduciary relationship between the parties or any of its respective agents or employees. Nothing in this Agreement grants to either party the authority to make any promise, warranty, guarantee, or representation that will create any obligation or liability whatsoever, whether express or implied, on behalf of the other.

h.) Law; Venue. This Agreement will be governed by and construed in accordance with the laws of the State of California, without giving effect to any contrary choice of law rules, and applicable United States federal law. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.

i.) Notices. All notices under this Agreement will be in writing and will be delivered to a party at the physical address or e-mail address specified in the Sales Order, Attn: Chief Legal Officer, by: (1) depositing the notice in the mail, using registered mail, return receipt requested; (2) overnight delivery service; (3) e-mail; or (4) hand delivery to an individual authorized to accept such delivery. The notice will be effective; (i) seven (7) calendar days after deposit in the mail; (ii) the next business day after deposit with an overnight delivery service; (iii) upon receipt by e-mail; or (iv) on the date of hand delivery.

j.) Force Majeure. EVC will not be liable for any failure or delay in performance due, in whole or part, to any cause beyond EVC’s reasonable control (a “Force Majeure Event”), including, without limitation, acts of God or of the public enemy, strikes, fire, flood, epidemics, quarantine restrictions, freight embargoes, earthquake, unusually severe weather, insurrection or mob violence, laws, regulations, actions of or the failure to act of any governmental authority, shortage of inventory, raw material, power or fuel, or difficulties with equipment or transportation.

k.) Construction. The terms of this Agreement have been negotiated by the parties hereto and the language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent. This Agreement will be construed without regard to any presumption or rule requiring construction against the party causing such instrument or any portion thereof to be drafted, or in favor of the party receiving a particular benefit under this Agreement.

l.) Headings.  The captions and section and paragraph headings used in this Agreement are inserted for convenience only and will not affect the meaning or interpretation of this Agreement.

m.) Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same Agreement. All signed fax copies of the Agreement will be deemed as valid as an original.