Terms and Conditions Applicable to each PowerFlex EVSE Work Order

THESE TERMS AND CONDITIONS (“TERMS”) CONSTITUTE A BINDING LEGAL AGREEMENT BETWEEN YOU OR THE LEGAL ENTITY YOU REPRESENT (“CLIENT”) AND THE POWERFLEX ENTITY (“POWERFLEX”) NAMED IN YOUR ELECTRIC VEHICLE CHARGING SERVICE (“EVSE”) WORK ORDER (EACH, A “WORK ORDER”) FOR THE PROVISION OF EQUIPMENT OR SERVICES OR BOTH AS SPECIFIED IN SUCH WORK ORDER SIGNED BY AN AUTHORIZED REPRESENTATIVE OF POWERFLEX. PLEASE READ THESE TERMS CAREFULLY.

IF YOU ARE AGREEING TO THESE TERMS ON BEHALF OF A CORPORATION, PARTNERSHIP, OR OTHER LEGAL ENTITY, THAT ENTITY REPRESENTS THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS.

ANY ADDITIONAL TERMS AND/OR CONDITIONS IN ANY PROPOSAL, PURCHASE ORDER OR OTHER DOCUMENT CONFLICTING WITH OR ADDING TO THESE TERMS SHALL BE OF NO FORCE AND EFFECT UNLESS SIGNED BY AN AUTHORIZED REPRESENTATIVE OF POWERFLEX.

1. The Work.
   
   • Client hereby authorizes PowerFlex to provide, and PowerFlex hereby agrees to provide as the exclusive provider thereof, the Work as defined in each Work Order.
   • Client and PowerFlex may amend any Work Order by executing and delivering a change order.

2. Client Cooperation; Access to Project Site.
   
   • Throughout the Term of a Work Order, 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 the Work without added cost, interference, or delay.  
   • From and after the Work Order Date (as defined in such Work Order), Client shall provide to PowerFlex sufficient access to the Project Site covered by such Work Order to enable PowerFlex’s performance of the Work.  

3. Compensation.  Client shall pay PowerFlex for the Work for any Project in accordance with the Work Order and these Terms.

4. Final Completion; Title. With respect to Work Orders covering installation services (the “Installation Services”), upon completion of such Installation Services pursuant to the Work Order, PowerFlex shall deliver a certificate of final completion to the other party, and the “Final Completion Date” for such installation services shall be the date indicated on such certificate of final completion.  Title, care, custody, control and risk of loss to EVSE equipment shall pass from PowerFlex to Client on the date the EVSE are delivered to Client, or with respect to Work Orders covering Installation Services, on the Final Completion Date.  

5. Warranty Services.
   
   • For Work Orders that explicitly include Installation Services, PowerFlex warrants that Installation Services performed by PowerFlex pursuant such Work Order will be performed (a) in a good and workmanlike manner, (b) in accordance with the requirements of the applicable Work Order; (c) in accordance with applicable laws, and (d) in accordance with generally accepted industry standards (collectively, the “Workmanship Warranty”).  For the avoidance of doubt, the Workmanship Warranty does not apply to Work performed under a Work Order other than Installation Services.
   • Except as otherwise required by applicable law, PowerFlex’s liability with respect to the Workmanship Warranty shall terminate on the date that is six (6) months following the Final Completion Date.  
   • Other than the warranties provided by PowerFlex on the components of the Work specified under the Work Order, PowerFlex shall assign and pass through to Client any warranties on all other components of the EVSE that were provided by the original manufacturer thereof (“OEM”), solely as and to the extent permitted by the terms and conditions of such warranties (the “OEM Warranty”).  PowerFlex shall use commercially reasonable efforts to assist in the administration of Client’s requests for warranty service under an OEM Warranty, but PowerFlex shall not be directly liable for, and shall not be required to expend or incur any out-of-pocket costs in connection therewith.  
   • PowerFlex does not guarantee approval of any plans, applications, or petitions submitted for review by a Project’s permitting authorities, any utility, or other third parties, as applicable.  PowerFlex makes no assurance that any agreement, instrument, or other document submitted to a third party for approval, acceptance, execution and delivery, or other action, will be approved, accepted, executed and delivered, or otherwise acted on within the timeframe or in the manner requested.  
   • THE WARRANTIES SET FORTH ABOVE IN THIS SECTION 5 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 WORK.

6. Insurance.  
   
   • PowerFlex shall comply throughout the Term with all environmental, health, and safety requirements under applicable laws pertaining to the Work.
   • Each party, at its own expense, shall procure and maintain in full force and effect throughout the Term all insurance coverages specified below. All insurance coverage shall be in accordance with the terms set forth herein using companies authorized to do business or approved surplus lines carriers in each state where a Project Site is located.
   • Subrogation Waivers. All policies shall provide for waiver of subrogation rights against the other Party, and, as to each Project, the applicable owner of the Project Site on which the Project is located, if other than Client (the “Project Host”), and the respective assigns, subsidiaries, affiliates, directors, officers, and employees of each and of any right of the insurers to any set-off or counterclaim or any other deduction.
   • Evidence of Insurance. If requested, each Party will furnish evidence of insurance required hereunder in the form of a certificate of insurance within ten (10) days after the Work Order Date of each Work Order.
   • PowerFlex Coverage. All amounts of insurance coverage set forth herein are required minimums.  As a material condition to each Work Order and throughout the Term of each Work Order, PowerFlex shall maintain the following types of insurance with at least the following minimum coverage amounts:
     ‍
     i. Commercial General Liability Insurance.
     One Million Dollars ($$1,000,000) per occurrence
     Two Million Dollars ($$2,000,000) general aggregate.
     Two Million Dollars ($$2,000,000) in the aggregate for products and completed operations.
     
     ii. Workers’ Compensation/Employer’s Liability Insurance.
     Worker’s Compensation to the extent required by Law,
     Employer’s Liability: One Million Dollars ($$1,000,000) each accident/occurrence.
     
     iii. Commercial Automobile Liability Insurance.
     One Million Dollars ($$1,000,000) combined single limit for all owned, non-owned and hired vehicles.
     
     iv. Umbrella/Excess Liability Insurance.
     Three Million Dollars ($$3,000,000) per claim and in the annual aggregate in excess of the limits of insurance provided above.
     ‍
   • Client Insurance Coverage.  All amounts of insurance coverage set forth herein are required minimums.  As a material condition to each Work Order and throughout the Term of each Work Order, Client shall maintain the following types of insurance with at least the following minimum coverage amounts:
     ‍
     i. Commercial General Liability Insurance.
     One Million Dollars ($$1,000,000) per occurrence
     Two Million Dollars ($$2,000,000) general aggregate
     
     ii. Property All Risk Insurance.
     In an amount sufficient to cover full replacement value of the Project.
     
     iii. Umbrella/Excess Liability Insurance.
     Three Million Dollars ($$3,000,000) per claim and in the annual aggregate in excess of the limits of insurance in Section d.(i.)
     ‍
   • General Insurance Provisions.  All insurance required shall be maintained and endorsed to include the other party, and, for each Work Order, the applicable Project Host, as additional insured, in relation to the Work performed under such Work Order.  Third party liability policies required hereunder shall provide for a cross liability clause or a severability of insureds clause.  Insurance coverage afforded under the liability policies of insurance in Section (e) shall be primary to any liability insurance carried by the Client, or, for each Work Order, the applicable Project Host, which insurance(s) shall be excess and noncontributory for claims and losses arising out of the performance each Work Order.  Each party will provide to the other party at least 30 days’ prior written notice of cancellation of any insurance policy required hereby.  All such insurance policies shall be written with a company or companies: (i) licensed to do business in the state where the applicable Project is located or, if different, where the Work under the applicable Work Order is performed, and (ii) having a financial rating of not less than A in the most current edition of A.M. Best’s Key Rating Guide.  If any of the above policies are written on a “claims-made” basis, the responsible party shall (a) ensure that continuous coverage is maintained or an extended coverage period will be exercised for a period of not less than five (5) years beyond the expiration or termination of the relevant Work Order; and (b) in the event a “claims-made” policy is not renewed or replaced, ensure that such policy must have an extended reporting period of one (1) year.
   • Subcontractor Insurance.  To the extent PowerFlex retains any subcontractor to perform Work for any Project, PowerFlex shall cause each such subcontractor to procure and maintain the insurance coverages required hereunder or comparable for the subcontractor’s scope of work, for the Term of the Work Order with respect to such Project, and shall promptly upon request provide evidence of such subcontractor insurance coverage to Client.

7. Indemnification.
   • 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 a Work Order.
   • 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”), under a Work Order 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).
   • 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.

8. Limitations.
   • ‍LIMITATION OF LIABILITY. Each party’s aggregate liability with respect to a Work Order shall not exceed an amount equal to the amount of compensation owed for the Equipment and Work under such Work Order; provided, however, that to the extent that a Work Order involves the provision of Equipment, Installation Services, Design & Permitting Services or Support & Software Services, each party’s aggregate liability for each type of Equipment or Work shall not exceed the compensation owed for such type of Equipment or Work (as applicable) under the Work Order, provided that with respect to Support & Software Services, each party’s aggregate liability shall not exceed the compensation owed for the first year of the Initial Support & Software Services Term.  The foregoing limitations shall not relieve either party to the extent liability arises from its willful misconduct or fraud.
   • 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.
     

9. Confidential Information. If, prior to the Work Order Date set forth in a particular Work Order, Client and PowerFlex have entered into a confidentiality agreement (a “Confidentiality Agreement”), then non-public or proprietary information exchanged by the Client and PowerFlex pursuant to the performance of such Work Order (“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 Work or use the Support & Software 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 Project in its marketing materials.
   

10. Terms of Use
    • Each Work Order and 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 the PowerFlex’s standard terms of use set forth at <a class="text-link-wrap" href="/powerflex-platform-terms-of-use">https://www.powerflex.com/powerflex-platform-terms-of-use/</a> (the “Terms of Use”) applicable to “User” (as defined therein), which are hereby incorporated by reference into these Terms. By signing a Work Order, Client affirms that it has read and agrees to be bound by these Terms including the Terms of Use.
    • PowerFlex may include PowerFlex trademarks, service marks, trade names, logos, domain names, and other distinctive brand features and designations on any deliverable provided under a Work Order, including any charging stations installed as part of any Project.
    • PowerFlex hereby grants to Client a royalty-free, non-assignable, non-transferable, and non-exclusive license to use information made available by PowerFlex to Client solely in accordance with these Terms and the terms of each Work Order, and solely to the extent necessary for Client to access, use and receive the PowerFlex Platform as permitted herein during the Term of each such Work Order. Solely as and to the extent needed by PowerFlex to perform the Work, Client hereby grants to PowerFlex a royalty-free, non-assignable, non-transferable, and non-exclusive license to use Client trademarks, logos and domain names, and any content or services that a Client provides or makes available to Project end-users in connection with the PowerFlex Platform.

11. Subcontractors. PowerFlex may utilize licensed subcontractors to perform the Work pursuant to each Work Order; provided, however, that PowerFlex shall remain fully responsible for all Work performed by such subcontractors.  Subject to full payment to PowerFlex of all fees due under a Work Order, PowerFlex shall cause its subcontractors not to create or place any liens, security interests or other encumbrances on any Project or any Project Site other than mechanic’s liens or similar liens or security interests arising by operation of law for the sole purpose of securing PowerFlex’s obligation to pay a subcontractor for Work performed hereunder.
    

12. 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. 

13. Additional Support & Software Services. The following may apply to a given Project Site in addition to the Support & Software Services set forth in each Work Order.
    • • Public Mapping. To the extent a Project Site is a publicly accessible Project Site, PowerFlex is authorized to share Project Site coordinates, number of EVSE, real-time status (charging/not charging) of the EVSE and related information to third-party public navigation platforms.
    • 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, PowerFlex may proceed with enrollment in such Demand Response Program and the execution of a Work Order evidencing acquiescence to these Terms may be used as evidence of Client’s consent and 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.
    • Public Incentives. With the exception of any Rebate Funds explicitly set forth in a Work Order that will be applied for directly by Client or by PowerFlex on Client’s behalf and for Client’s exclusive use, 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 Project or any component thereof (collectively, the “Incentives”), and that such Incentives were expressly bargained for by PowerFlex and constitute a key element of such Work Order.  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 a Work Order.
    • From and after the Initial Support & Software Services Period (as defined in each Work Order), PowerFlex shall, as and only to the extent directed by Client, collect applicable Base Fees (as defined in each Work Order) 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 Project 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 to a given Work Order) 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 an applicable Work Order. 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 Renewal Term upon PowerFlex providing sixty (60) days prior written notice to Client.

14. Termination; Expiration.
    
    • • With respect to a Work Order for the purchase of Design and Permitting Services and/or Installation Services (if applicable with respect to a given Work Order), each such Work Order shall terminate with respect to such Work on the Project’s Final Completion Date (the “Installation Term”). With respect to Support & Software Services, each such Work Order shall be governed by the renewal terms and termination rights set forth therein. Any payment obligations accruing prior to the date of termination of expiration of each Work Order shall survive such termination or expiration.
    • Termination without Cause.  Client may terminate any Work Order with respect to the Design & Permitting Services or Installation Services without cause and for any or no reason whatsoever, upon thirty (30) days prior written notice to PowerFlex.  PowerFlex may terminate each Work Order without cause and for any or no reason whatsoever, upon thirty (30) days prior written notice to Client prior to commencement of installation activities under the Work Order.
    • Termination for Cause. In addition, either party may terminate a Work Order 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 provisions of such Work Order, 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.
    • Effect of Termination.  Upon the termination of any Work Order, PowerFlex shall promptly stop the performance of the corresponding Work and Support & Software Services (as applicable) thereunder and Client shall pay PowerFlex for any and all Work and Support & Software Services performed and not yet paid.  If a Work Order is terminated by Client without cause pursuant to Section 14(b), Client will also pay PowerFlex any documented demobilization costs incurred by PowerFlex as a result of such termination and such other reasonable and documented costs incurred by PowerFlex prior to the date of such termination. The termination of any Work Order 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 under such Work Order.

15. Force Majeure.
    
    • • 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.  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.  
      • “Force Majeure” means the occurrence of any act or event that delays or prevents a party from timely performing obligations under these Terms or any Work Order or from complying with conditions required under these Terms or any Work Order 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.

16. Governing Law; Disputes
    
    • • 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.  
      • Any dispute, claim or controversy arising out of or relating to these Terms or any Work Order, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement 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.  

17. Representations; Assignment; Counterparts.
    
    • • Each party hereby represents and warrants that (i) it has full power and authority to enter into a Work Order that incorporates these Terms and to perform its obligations thereunder and hereunder, and (ii) its true and correct Federal EIN is set forth on the cover page of each Work Order. 
      • The provisions of these Terms and each Work Order 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.
      • Each Work Order may be executed in any number of counterparts, each of which shall be an original, and all of which, when taken together with these Terms shall constitute one agreement.

18. Miscellaneous.
    
    • Severability. Each provision of these Terms and of each Work Order is independent, separate, and divisible, and if any provision of these Terms or of any Work Order 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 or such Work Order and shall not affect the validity or enforceability of the remaining provisions, which shall be given full effect without regard to the invalid portion.
    • Entire Agreement. Each Work Order shall incorporate these Terms and represents the entire agreement between the parties with respect to the subject matter set forth in these Terms and supersedes all prior and contemporaneous oral and written agreements, communications, representations, commitments, and understandings of the parties with respect to the subject matter of each Work Order.