Software Services Terms and Conditions

1. The Services.  Client hereby authorizes PowerFlex to provide, and PowerFlex hereby agrees to provide as the exclusive provider thereof, the “Services” described herein. PowerFlex shall provide ongoing Services as follows: 

1. Procure and maintain internet connectivity and access to PowerFlex system components onsite and offsite. 
2. Provide the EVSE with access to PowerFlex’s driver app.
3. Provide Client with access to PowerFlex’s facility manager portal and at the direction of Client, manage a suite of controls including: charger access by email domain or individual email, role-based pricing by email domain or individual email, rate-based pricing, and payments processing. 
4. Driver access to PowerFlex support team (i) 24/7/365 via the PowerFlex driver support email support@powerflex.com and (ii) during the hours and via the customer service hotline applicable to Client’s Services tier, to include remote session troubleshooting and assistance with the driver app. 
5. Remote monitoring and remote troubleshooting of load management controller during client support hours, support for site manager concerns, administer site configuration changes and support for the facility manager portal. Remotely address (create case ticket & initiate remote troubleshooting period) unplanned outages identified via remote data analysis within 3 hours during client support hours.
6. Any site configuration adjustments to be completed within 7 business days following receipt by PowerFlex of written notification.
7. No Onsite Services: Unless Client has elected to purchase PowerFlex’s Extended Warranty Plus at or prior to the date of commissioning of the EVSE, onsite services (including onsite maintenance) are not included in the Services. To the extent Client has purchased PowerFlex’s Extended Warranty Plus at or prior to the date of commissioning of the EVSE, then, during the Warranty Period, onsite services (including onsite maintenance) shall be performed in accordance with PowerFlex’s Extended Warranty Plus.

2. Client Cooperation. Throughout the Services Term, Client shall provide PowerFlex with information, reviews, approvals or disapprovals, notices, payments, and other things promptly when due, scheduled or needed to allow orderly progression of Services without added cost, interference, or delay. 

3. Compensation.  Client shall timely pay PowerFlex for the Services.

4. Warranty Services. THE WARRANTIES SET FORTH IN THESE TERMS ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, FOR PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR OTHERWISE.  THERE ARE NO OTHER WARRANTIES, AGREEMENTS, OR UNDERSTANDINGS WHICH EXTEND BEYOND THOSE SET FORTH IN THESE TERMS WITH RESPECT TO THE SERVICES. 

5. Term; Renewal; Termination.

1. Term; Renewal. These Terms shall be effective from the date of commissioning of the EVSE and continue until the end of the initial Services period selected (the “Initial Term”) unless earlier terminated in accordance with these Terms; provided, however, that at the expiration of the Initial Term, the Services and these Terms shall automatically renew for successive one (1) year periods (each, a “Renewal Term” and, together with the Initial Term, the “Services Term”) unless terminated by written notice of a party delivered to the other party at least thirty (30) days prior to the start of such Renewal Term. Compensation for Services during each Renewal Term shall be at PowerFlex’s rates in effect at the commencement of the Renewal Term. PowerFlex will send Client an invoice for Services at the beginning of each Renewal Term, with payment due within thirty (30) days; provided that Client shall be entitled to terminate Services within twenty-one (21) days after receipt of the first invoice in a given Renewal Term in Client’s sole discretion; provided further that if Client terminates Services within twenty-one (21) days after receipt of the first invoice in a given Renewal term, PowerFlex shall invoice Client on a pro rata basis for Services performed during such period prior to the date of termination. For the avoidance of doubt, any payment obligations that have accrued prior to the date of termination shall survive such termination.
2. Termination without Cause.  PowerFlex may terminate Services without cause and for any or no reason whatsoever, upon thirty (30) days prior written notice to Client.
3. Termination for Cause.  In addition, either party may terminate Services by written notice to the other party upon the occurrence of any one or more of the following events: (i) in the event either party materially breaches any of the Terms, and such breach remains uncured for thirty (30) days following notice thereof from the non-breaching party; or (ii) upon the dissolution or cessation of business of either party or in the event either party makes a general assignment for the benefit of its creditors, admits in writing its inability to pay its debts as they become due, files a petition in bankruptcy or has an involuntary petition filed against it which is not dismissed within a period of sixty (60) days, is adjudicated bankrupt, or files a petition seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future federal, state or local statute, law or regulation.
4. Effect of Termination.  Upon the termination of Services, PowerFlex shall promptly stop the performance of Services and Client shall pay PowerFlex for any and all Services performed and not yet paid.  The termination of Services by Client or PowerFlex shall be without prejudice to any and all other rights and remedies a party may have, both at law and in equity, arising out of or related to any breach or default by the other party with respect to the transactions contemplated by these Terms (including the Services).

6. Indemnification.

1. Each party agrees, to the fullest extent permitted by law, to indemnify the other party and its members, employees, agents, representatives, affiliates, successors and permitted assigns from any liability, damages, or costs (including reasonable attorneys' fees, collectively “Damages”) that arise out of claims or demands that are brought by unrelated third parties and that result from personal injury, death or property damage, to the extent caused by such indemnifying party’s negligent acts or omissions, or willful misconduct during the course of its performance of Services.  
2. Notwithstanding anything to the contrary contained herein, the obligation of a party (the “Indemnifying Party”) to indemnify, defend and hold harmless the other party and its members, employees, agents, representatives, affiliates, successors and permitted assigns (collectively, the “Indemnified Party”), with respect to the transactions contemplated by these Terms (including Services) is expressly conditioned on the Indemnified Party (i) promptly notifying the Indemnifying Party in writing concerning the claim or liability, (ii) promptly furnishing to the Indemnifying Party a copy of each communication, notice or other action relating to the claim or liability, and (iii) granting the Indemnifying Party the sole authority to defend or settle the claim or liability (at the Indemnifying Party’s expense).  
3. If any liability, damages, or costs (including reasonable attorneys’ fees and costs of defense) result from the fault or comparative fault of the Indemnified Party, the indemnification obligation of the Indemnifying Party shall only apply to the extent of such Indemnifying Party’s proportional responsibility.

7. Limitations.

1. ‍LIMITATION OF LIABILITY.  Each party’s aggregate liability with respect to the transactions contemplated by these Terms (including Services) shall not exceed an amount equal to the amount of compensation paid or payable for the first year of the Services Term. The foregoing limitations shall not relieve either party to the extent liability arises from its willful misconduct or fraud.
2. ‍EXCLUSION OF CONSEQUENTIAL DAMAGES.  IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY 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.  

8. Confidential Information.  If, Client and PowerFlex have entered into a confidentiality agreement (a “Confidentiality Agreement”) which has not by its terms expired or been terminated, then non-public or proprietary information exchanged by the Client and PowerFlex pursuant to the performance of Services (“Confidential Information”) shall be subject to the provisions of such Confidentiality Agreement.  If no such Confidentiality Agreement is effective, then, except as required to perform the Services, Confidential Information of one party shall not be disclosed or used by the other party without consent of the former. Notwithstanding anything herein to the contrary, PowerFlex is expressly authorized to disclose any non-financial details of any EVSE project or Services in its marketing materials.

9. Terms of Use

1. Client’s use of the proprietary cloud enabled application software including the driver application, payments processing, energy management capabilities, adaptive charging functionality and the “Axcess” web-access portal and all related data and documentation (the “PowerFlex Platform”) are subject to applicable law and to PowerFlex’s standard terms of use (the “Terms of Use”) set forth herein and applicable to “User” (defined below), which are hereby incorporated by reference into these Terms.
2. These Terms of Use (“Terms of Use”) govern the use of the PowerFlex Platform and related Services by the user (“User”).
3. PowerFlex Platform Services Warranty. PowerFlex shall use reasonable efforts consistent with prevailing industry standards to maintain the PowerFlex Platform and provide the Services in a manner which minimizes errors and interruptions. The PowerFlex Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by PowerFlex or by third-party providers, or because of causes beyond PowerFlex’s reasonable control, including but not limited to cellular, data network or equipment failures, but PowerFlex shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, POWERFLEX DOES NOT WARRANT THAT THE  POWERFLEX PLATFORM OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE POWERFLEX PLATFORM OR THE ACCURACY OF THE DATA AND INFORMATION PROVIDED VIA THE POWERFLEX PLATFORM EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE POWERFLEX PLATFORM IS PROVIDED “AS IS” AND, WITH RESPECT TO THE POWERFLEX PLATFORM, POWERFLEX DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, UNINTERUPTED SERVICE, WARRANTY ARISING OUT OF COURSE OF PERFORMANCE, DEALING OR USAGE OF TRADE AND NON-INFRINGEMENT.
4. User Responsibilities; Limits on Use. User will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the PowerFlex Platform; modify, translate, or create derivative works based on the PowerFlex Platform (except to the extent expressly permitted by PowerFlex or authorized within the PowerFlex Platform); sell, resell, rent, lease or otherwise transfer the PowerFlex Platform or any data collected or maintained by PowerFlex in connection with the operation of the PowerFlex Platform to any third party; use the PowerFlex Platform for timesharing or service bureau purposes or otherwise for the benefit of a third-party; interfere with or disrupt the integrity of the PowerFlex Platform; copy, frame or mirror any part of the PowerFlex Platform, other than copying or framing on User’s own intranets or otherwise solely for User’s own internal business use and purposes; access or allow a third party to access the PowerFlex Platform, for any competitive purpose or for any improper purpose whatsoever; upload, transmit or introduce any malicious code to the PowerFlex Platform; utilize the PowerFlex Platform for any purpose other than User’s internal business purposes; or remove any proprietary notices or labels.
5. User Covenants. User represents, covenants, and warrants that User will use the PowerFlex Platform only in compliance with PowerFlex’s standard published policies then in effect and all applicable laws and regulations, including but not limited to 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. User hereby agrees to indemnify and hold harmless PowerFlex against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from User’s use of the PowerFlex Platform. Although PowerFlex has no obligation to monitor User’s use of the PowerFlex Platform, PowerFlex may do so and may prohibit any use of the PowerFlex Platform if it believes may be (or alleged to be) in violation of the foregoing.
6. Internet Connectivity. If PowerFlex has procured Internet Connectivity in order to connect the separate control mechanisms for the EVSE (the “Nexus”) to the PowerFlex Platform, User shall be responsible for any damage to equipment used to provide the Internet Connectivity, unless such damage was due to the negligence of PowerFlex. User shall also be responsible for maintaining the security of the equipment used to provide the Internet Connectivity, User account, User passwords and files, and for all uses of User account or the equipment used to provide the Internet Connectivity. User shall provide to PowerFlex sufficient physical access to the Site to enable PowerFlex to trouble shoot or remedy and issues with the Internet Connectivity.
7. Electricity Use. User represents and warrants that it has the power and authority to utilize, without restriction, the electricity connected to the EVSE.
8. Retention of Ownership.  PowerFlex shall own and hold all right, title and interest in and to (1) the PowerFlex Platform, all improvements, enhancements or modifications thereto, (2) all PowerFlex marks, (3) all other PowerFlex-supplied material developed or provided by PowerFlex for User’s use in connection with the PowerFlex Platform and (4) all intellectual property rights related to any of the foregoing.
9. Data. Notwithstanding anything to the contrary, PowerFlex shall have the right to collect and analyze data and other information relating to the EVSE, Nexus and use thereof, electrical meters and provision, use and performance of various aspects of the PowerFlex Platform and related systems and technologies and any other data transmitted to the PowerFlex Platform (collectively, “Data”), and PowerFlex has the right to use the Data consistent with applicable law. No rights or licenses are granted except as expressly set forth herein. If the Data or any data or information provided to User in connection with User’s provision of the Services contains personal information, each of PowerFlex’s and User’s access and use of any such shall comply with PowerFlex’s publicly available privacy policy and with applicable law.
10. Access. User acknowledges and agrees that PowerFlex, its affiliates and/or its designated agent may check and access and provide instructions to the Nexus or their components and may provide upgrades or supplements to such software that may be automatically downloaded to the Nexus.
11. License to PowerFlex.  User hereby grants to PowerFlex a royalty-free, non-assignable, non-transferable, and non-exclusive license to use User trademarks, logos and domain names, and any content or services that User provides for use in connection with PowerFlex’s provision of Services and or to advertise that User is using the PowerFlex Platform. PowerFlex shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable perpetual license to use or incorporate in the PowerFlex Platform services any suggestions, enhancement requests, recommendations or other feedback provided by User relating to the PowerFlex Platform.
12. PowerFlex may temporarily suspend User’s access to any portion or all of the Services if: (i) PowerFlex reasonably determines that (A) there is a threat or attack on the PowerFlex Platform; (B) User’s use of the PowerFlex Platform disrupts or poses a security risk to the PowerFlex Platform or to any other customer or vendor of PowerFlex; (C) User is using the PowerFlex Platform for fraudulent or illegal activities; (D) subject to applicable law, User has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) PowerFlex’s provision of the Services to User is prohibited by applicable law; (ii) any vendor of PowerFlex has suspended or terminated User’s access to or use of any third-party services or products required to enable User to access the Services; or (iii) User is in breach of its agreement with PowerFlex (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). PowerFlex shall use commercially reasonable efforts to provide written notice of any Service Suspension to User and to provide updates regarding resumption of access to the Services following any Service Suspension. PowerFlex shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. PowerFlex will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Subscriber may incur as a result of a Service Suspension.
13. PowerFlex has the right, upon reasonable prior notice, to discontinue or sunset the PowerFlex Platform or any features or functionality thereof. End User acknowledges that PowerFlex is continually developing Updates for the PowerFlex Platform and that PowerFlex shall have sole discretion to add, remove, or modify any feature or function of the PowerFlex Platform throughout the Services Term and after providing reasonable written notice to End User.

10. Subcontractors.  PowerFlex may utilize licensed subcontractors to perform the Services; provided, however, that PowerFlex shall remain fully responsible for all Services performed by such subcontractors.

11. Relationship of Parties.  PowerFlex is an independent contractor and is in no way a legal or implied agent, employee, or officer of the Client and has no authority whatsoever to bind the Client.  No acts or assistance given by  the Client will be construed to alter this relationship.

12. Additional Support & Software Services.

1. Public Mapping. To the extent the Client’s site where the EVSE are located is a publicly accessible site, PowerFlex is authorized to share the site coordinates, number of EVSE, real-time status (charging/not charging) of the EVSE and related information to third-party public navigation platforms.
2. Grid Services. PowerFlex may, but shall not be required to, identify one or more utility programs (each, a “Demand Response Program”) designed to address grid demand issues by compensating asset owners for reducing energy use and/or discharging energy to the site during demand events (“Demand Response Services”).  Prior to enrolling Client and/or any EVSE in a Demand Response Program, PowerFlex shall provide notice to Client including applicable requirements and benefits of such Demand Response Program. If Client does not object within 30 days of the notice, (i) PowerFlex may proceed with enrollment in such Demand Response Program, (ii) the acceptance of these Terms may be used as evidence of Client’s consent and (iii) Client will reasonably cooperate with PowerFlex including providing any documentation, access, or information required by such Demand Response Program. As compensation for the Demand Response Services, PowerFlex shall be entitled to any revenue generated by the Demand Response Program. PowerFlex does not guarantee that any Demand Response Program will be available for the EVSE or that it will be able to enroll Client and/or the EVSE in any such program.
3. Public Incentives. The parties acknowledge and agree that PowerFlex is exclusively entitled to claim, receive, and retain all right, title and interest to any rebate, grant or other similar incentives created or offered by any governmental or other independent entity with respect to the provision of Services (collectively, the “Incentives”), and that such Incentives were expressly bargained for by PowerFlex and constitute a key element of the relationship of the parties hereunder.  Client agrees to provide, at PowerFlex’s sole cost and expense, all such additional instruments, notices, documents and other information, and to perform such other acts as may be reasonably necessary to carry out the intent and accomplish the purpose of the parties’ foregoing agreement regarding the Incentives.  This provision shall survive any termination or expiration of the Services Term.
4. From and after the Initial Term, PowerFlex shall, as and only to the extent directed by Client, collect applicable base fees (“Base Fees”) from EVSE end-users via the PowerFlex network. If any Base Fees are collected, PowerFlex shall prepare and deliver within thirty (30) days following each calendar quarter an energy reimbursement report documenting energy delivered and revenues collected (if any) from the EVSE during the immediately preceding calendar quarter. On a quarterly basis, PowerFlex shall remit to Client all Base Fees collected from EVSE end-users during the immediately preceding calendar quarter, excluding any applicable Energy Service Surcharge amounts (if applicable) and less applicable Transaction Energy Reimbursement Fees (defined below), which PowerFlex shall withhold as its compensation hereunder (the aggregate quarterly amount net of Transaction Energy Reimbursement Fees, an “Energy Reimbursement Payment”); provided however, that pro-rated Energy Reimbursement Payments may be paid upon expiration or termination of Services. For the avoidance of doubt, PowerFlex shall reimburse fees collected from EVSE end-users and shall in no event be responsible for costs incurred where no fees are collected. For example, EVSE end-users may initiate a charging session but fail to claim the session or Client may occasionally refund a session to the EVSE end-user as a customer service function, resulting in a disbursement of energy without fees being charged to or collected from the EVSE end-user. Client acknowledges and agrees that Energy Reimbursement Payments may not be an exact match to energy usage for the preceding calendar quarter given energy levels required to maintain and operate EVSE. For purposes of these Terms, “Transaction Energy Reimbursement Fees” means a fee equal to 7% of Base Fees, charged by PowerFlex in exchange for PowerFlex’s collection and processing of Base Fees on behalf of Client. Transaction Energy Reimbursement Fees may be adjusted for each Services renewal term upon PowerFlex providing sixty (60) days prior written notice to Client.

13. Force Majeure.

1. Neither party shall be considered in default or breach of the performance of their respective obligations hereunder to the extent that performance of any such obligation is prevented or delayed by Force Majeure (defined below).  The affected party’s obligation to perform the subject obligation hereunder shall be suspended during the tenure of the subject Force Majeure and such party shall not be liable in damages or otherwise for a failure to perform, if and only to the extent that such party is unable to perform, or prevented from performing by such Force Majeure.  
2. “Force Majeure” means the occurrence of any act or event that delays or prevents a party from timely performing obligations under these or from complying with conditions required under these Terms if such act or event, despite the exercise of reasonable efforts, cannot be avoided by, and is beyond the reasonable control of, the party relying thereon as justification for such delay, nonperformance, or noncompliance.  Force Majeure includes an act of God, explosion, fire, epidemic, pandemic, government action, sabotage, terrorism, earthquake, flood, or similar cataclysmic event, an act of public enemy, war, riot, civil disturbance, or labor difficulty and labor disputes that are national in scope.  

14. Governing Law; Disputes

1. These Terms shall be governed by and construed in accordance with the internal laws of the State of California, without regard to conflict of law principles.  
2. Any dispute, claim or controversy arising out of or relating to these Terms, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of these Terms to arbitrate, shall be determined by arbitration in Santa Clara County, California before one arbitrator appointed by JAMS in accordance with its rules.  The arbitration shall be administered by JAMS pursuant to its Engineering and Construction Arbitration Rules and Procedures for Expedited Arbitration, and the parties shall maintain the confidential nature of the arbitration proceeding.  Judgment on any arbitration award may be entered in any court having competent jurisdiction.  This provision shall not preclude parties from seeking equitable relief or provisional remedies in aid of arbitration from a court of competent jurisdiction located in Santa Clara County, California.  

15. Representations; Assignment.

1. Each party hereby represents and warrants that (i) it has full power and authority to accept these Terms and to perform its obligations hereunder, and (ii) its true and correct Federal EIN has or will be promptly provided to PowerFlex.
2. The provisions of these Terms shall inure to the benefit of and be binding upon each party’s successors and permitted assigns.  These Terms may be amended or modified from time to time by PowerFlex.  

16. Miscellaneous.

1. Severability. Each provision of these Terms is independent, separate, and divisible, and if any provision of these Terms is found by the final order of a court of competent jurisdiction to be invalid, unenforceable, or in contravention of any applicable federal or state law or regulation, such provision shall be deemed not to be a part of these Terms and shall not affect the validity or enforceability of the remaining provisions, which shall be given full effect without regard to the invalid portion.
2. Entire Agreement. These Terms represent the entire agreement between the parties with respect to the subject matter set forth in these Terms and supersede all prior and contemporaneous oral and written agreements, communications, representations, commitments, and understandings of the parties with respect to the Services.