HomeMy WebLinkAboutC-8802-1 - Master Services and Subscription Agreement1
N CHARGEPOINT®
O MASTER SERVICES AND SUBSCRIPTION AGREEMENT
(30
IMPORTANT: THIS MASTER SERVICES AND SUBSCRIPTION AGREEMENT ("Agreement") IS A LEGAL
U AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH, A CALIFORNIA MUNICIPAL CORPORATION AND
CHARTER CITY ("SUBSCRIBER") AND CHARGEPOINT, INC., A DELAWARE CORPORATION ("CPI"). PLEASE
READ IT CAREFULLY. BY USING ANY OF THE CHARGEPOINT SERVICES, YOU INDICATE YOUR ACCEPTANCE
OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS AND CONDITIONS, DO NOT
USE ANY CHARGEPOINT SERVICES.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A CORPORATION, PARTNERSHIP OR
OTHER LEGAL ENTITY, THAT ENTITY REPRESENTS THAT YOU HAVE AUTHORITY TO BIND SUCH ENTITY
TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY TO BIND SUCH ENTITY TO
THESE TERMS AND CONDITIONS, YOU MAY NOT ENTER INTO THIS AGREEMENT AND SUCH ENTITY MAY
NOT USE THE CHARGEPOINT SERVICES.
1. AGREEMENT.
1.1 SCOPE OF AGREEMENT. This Agreement governs the following activities:
(a) Provisioning of Subscriber's Charging Station(s), if any, on ChargePoint;
any;
(b) Activation and use of the ChargePoint Services on Subscriber's Charging Station(s), if
(c) Subscriber's use of the APIs as part of the ChargePoint Services;
(d) Each grant of Rights by Subscriber; and
(e) Each grant of Rights by a third party to Subscriber.
1.2 EXHIBITS AND PRIVACY POLICY. This Agreement includes the CPI Privacy Policy, as
amended from time to time, and the following Exhibits, which are made a part of, and are hereby
incorporated into, this Agreement by reference.
Exhibit 1: Flex Billing Terms
Exhibit 2: API Terms
Exhibit 3: Terms Regarding Granting and Receipt of Rights
In the event of any conflict between the terms of this Agreement on the one hand, and the Privacy Policy
or any Exhibit on the other hand, this Agreement shall govern. Capitalized terms not otherwise defined in
any Exhibit or the Privacy Policy shall have the same meaning as in this Agreement.
2. DEFINITIONS. The following terms shall have the definitions set forth below when used in this
Agreement:
2.1 "Affiliate" means any entity which directly or indirectly controls, is controlled by, or is
under common control with the subject entity. "Control", for purposes of this definition, means direct or
indirect ownership or control of fifty percent (50%) or more of the voting interests of the subjectentity.
2.2 "APIs" means, individually or collectively, the application programming interfaces which
are made available to Subscriber from time to time, as and when updated by CPI.
2.3 "ChargePoint Connections" shall have the meaning ascribed to it in the applicable data
sheet. The term ChargePoint Connections shall also mean any successor service provided by CPI.
Revised 8.5.19
2.4 "ChargePoint°" means the open-platform network of electric vehicle charging stations
and the vehicle charging applications the network delivers, that is operated and maintained by CPI (as
defined below) in order to provide various services to, among others, Subscriber and itsemployees.
2.5 "ChargePoint Services" means, collectively, the various cloud services offerings
(including, without limitation, APIs and application Cloud Plans) made available for subscription byCPI.
2.6 "ChargePoint Application" means any of the applications established and maintained by
CPI which will allow Subscriber to access ChargePoint Services.
2.7 "Charging Station" means the electric vehicle charging station(s) purchased by
Subscriber, whether manufactured by CPI or by a CPI authorized entity, which are registered and activated
on ChargePoint.
2.8 "Content" means all data collected or maintained by CPI in connection with the operation
of ChargePoint.
2.9 "CPI Marks" means the various trademarks, service marks, trade names, logos, domain
names, and other distinctive brand features and designations used in connection with ChargePoint and/or
CPI manufactured Charging Stations, including without limitation, ChargePoint.
2.10 "CPI Property" means (i) ChargePoint, (ii) the ChargePoint Services (including all Content),
(iii) all data generated or collected by CPI in connection with the operation of ChargePoint and
ChargePoint Services, (iv) the CPI Marks, (v) the ChargePoint Cards, and (vi) all other CPI-supplied material
developed or provided by CPI for Subscriber use in connection with the ChargePoint Services.
2.11 "Documentation" means written information (whether contained in user or technical
manuals, product materials, specifications or otherwise) pertaining to ChargePoint Services and/or
ChargePoint and made available from time to time by CPI to Subscriber in any manner (including on-line).
2.12 "Effective Date" means the earlier of (a) the date that Subscriber electronically accepts
this Agreement, or (b) the date of Subscriber's first use of the ChargePoint Services.
2.13 "Intellectual Property Rights" means all intellectual property rights, including, without
limitation, patents, patent applications, patent rights, trademarks, trademark applications, trade names,
service marks, service mark applications, copyrights, copyright applications, franchises, licenses,
inventories, know -how, trade secrets, Subscriber lists, proprietary processes and formulae, all source and
object code, algorithms, architecture, structure, display screens, layouts, inventions, development tools
and all documentation and media constituting, describing or relating to the above, including, without
limitation, manuals, memoranda and records.
2.14 "Malicious Code" means viruses, worms, time bombs, Trojan horses and all other forms
of malicious code, including without limitation, malware, spyware, files, scripts, agents orprograms.
2.15 "Party" means each of CPI and Subscriber.
2.16 "Pll" means personally identifiable information regarding Subscriber or a User (e.g.,
name, address, email address, phone number or credit card number) that can be used to uniquely identify,
contact or locate Subscriber or such User.
2.17 "Provisioning" means activating Charging Stations, warrantees and Cloud Plans on
ChargePoint
2.18 "Rights" means the rights, authorizations, privileges, actions, information and settings
within the ChargePoint Services which a Rights Grantor grants to an Rights Grantee, to enable such Rights
Grantee to access, obtain and use certain portions of the ChargePoint Services and certain information
available therein in the course of providing services to or on behalf of such Rights Grantor in connection
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with one or more of the Rights Grantor's Charging Stations. A Rights Grantor shall be deemed to have
granted Rights to the entity that will be responsible for creating Subscriber's account and Provisioning
Subscriber's Charging Stations. Such deemed grant may be terminated by Subscriber at any time.
2.19 "Cloud Plan(s)" means subscription plans to the ChargePoint Services which are offered
and sold by CPI from time to time, which vary according to their features, privileges and pricing.
2.20 "Subscriber Content and Services" means any content and/or services that a Subscriber
provides or makes available to Users and/or the general public in connection with the ChargePoint
Services, other than Content, ChargePoint Services and CPI Property.
2.21 "Subscriber Marks" means the various trademarks, service marks, trade names, logos,
domain names, and other distinctive brand features and designations used by Subscriber in connection
with its business and/or Charging Stations.
2.22 "Subscription Fees" means the fees payable by Subscriber for subscribing to any
ChargePoint Services.
2.23 "Taxes" shall mean all present and future taxes, imposts, levies, assessments, duties or
charges of whatsoever nature including without limitation any withholding taxes, sales taxes, use taxes,
service taxes, value added or similar taxes at the rate applicable for the time being imposed by any
national or local government, taxing authority, regulatory agency or other entity together with any penalty
payable in connection with any failure to pay or any delay in paying any of the same and any interest
thereon.
2.24 "Token(s)" means the serialized proof of purchase of a Cloud Plan that is used by CPI in
connection with enabling Services and/or provisioning Charging Stations.
2.25 "User" means any person using a Charging Station.
3. AVAILABLE CHARGEPOINT SERVICES & CLOUD PLANS. A description of the various ChargePoint
Services and Cloud Plans currently available for subscription is located on the CPI website. CPI may make
other ChargePoint Services and/or Cloud Plans available from time to time, and may amend the features
or benefits offered with respect to any ChargePoint Service or Cloud Plan at any time and from time to
time. Subscription Fees are based on Subscriber's choice of Cloud Plan and not on actual usage of the
Subscription.
4. CPI'S RESPONSIBILITIES AND AGREEMENTS.
4.1 OPERATION OF CHARGEPOINT. CPI agrees to provide and shall be solely responsible for:
(i) provisioning and operating, maintaining, administering and supporting ChargePoint and related
infrastructure (other than Subscriber's Charging Stations and infrastructure for transmitting data from
Charging Stations to any ChargePoint operations center); (ii) provisioning and operating, maintaining,
administering and supporting the ChargePoint Applications; and (iii) operating ChargePoint in compliance
with all applicable laws. CPI will protect the confidentiality and security of PH in accordance with all
applicable laws and regulations and the CPI Privacy Policy and acknowledges that it is responsible for the
security of "cardholder data" (as that term is defined for purposes of the Payment Card Industry — Data
Security Standards), if any, that CPI possesses, otherwise stores, processes or transmits on behalf of
Subscriber or for any impact, if any, on the security of Subscriber's cardholder data environment.
4.2 LIMITATIONS ON RESPONSIBILITY. CPI shall not be responsible for, and makes no
representation or warranty with respect to the following: (i) specific location(s) or number of Charging
Stations now, or in the future, owned, operated and/or installed by persons other than Subscriber, or the
total number of Charging Stations that comprise ChargePoint; (ii) continuous availability of electrical
service to any of Subscriber's Charging Stations; (iii) continuous availability of any wireless or cellular
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communications network or Internet service provider network necessary for the continued operation by
CPI of ChargePoint; (iv) availability of or interruption of the ChargePoint Network attributable to
unauthorized intrusions; and/or (v) charging stations that are not registered with and activated on the
ChargePoint Network.
S. SUBSCRIBER'S RESPONSIBILITIES AND AGREEMENTS.
5.1 GENERAL.
(a) All use of ChargePoint and ChargePoint Services by Subscriber, its employees and
agents and its grantees of Rights shall comply with this Agreement and all of the rules, limitations and
policies of CPI set forth in the Documentation. All ChargePoint Services account details, passwords, keys,
etc. are granted to Subscriber solely for Subscriber's own use (and the use of its grantees of Rights), and
Subscriber shall keep all such items secure and confidential. Subscriber shall prevent, and shall be fully
liable to CPI for, any unauthorized access to or use of ChargePoint or ChargePoint Services via Subscriber's
Charging Stations, ChargePoint Services account(s) or other equipment. Subscriber shall immediately
notify CPI upon becoming aware of any such unauthorized use.
(b) Subscriber shall be solely responsible for: (i) Provisioning of its Charging Stations, if
any; (ii) keeping Subscriber's contact information, email address for the receipt of notices hereunder, and
billing address for invoices both accurate and up to date; (iii) updating on the applicable ChargePoint
Application, within five (5) business days, the location to which any of Subscriber's Charging Stations are
moved; (iv) the maintenance, service, repair and/or replacement of Subscriber's Charging Stations as
needed, including informing CPI of the existence of any Charging Stations that are non -operational and
not intended to be replaced or repaired by Subscriber; and (v) compliance with all applicable laws.
(c) Subscriber shall deliver in full all benefits promised to Users by Subscriber in exchange
for such Users connecting with Subscriber using ChargePoint Connections.
5.2 REPRESENTATIONS AND WARRANTIES OF SUBSCRIBER. Subscriber represents and
warrants to CPI that: (i) it has the power and authority to enter into and be bound by this Agreement and
shall have the power and authority to install the Charging Stations and any other electrical vehicle charging
products which are registered and activated on the ChargePoint Network); (ii) the electrical usage to be
consumed by Subscriber's Charging Stations will not violate or otherwise conflict with the terms and
conditions of any applicable electrical purchase or other agreement including, without limitation, any
lease, to which Subscriber is a party; and (iii) it has not installed or attached and will not install or attach
Charging Stations on or to infrastructure not owned by Subscriber without proper authority, or in a
manner that will block any easement or right of way.
5.3 CHARGEPOINT CARDS. Subscriber may be permitted by CPI, in CPI's sole discretion, to
obtain CPI -provisioned radio-frequency identification cards ("ChargePoint Cards") which enable the
individual card recipients to access and use ChargePoint. Subscriber may distribute such ChargePoint
Cards to individuals, and each individual ChargePoint Card recipient is responsible for activating his or her
ChargePoint Card on ChargePoint directly with CPI on the CPI web site. In no event will Subscriber create
any separate ChargePoint accounts for any ChargePoint Card recipients or other third parties, nor will
Subscriber create anonymous ChargePoint accounts associated with any ChargePoint Card.
5.4 USE RESTRICTIONS AND LIMITATIONS. Subscriber shall not:
(a) sell, resell, license, rent, lease or otherwise transfer the ChargePoint Services or any
Content therein to any third party;
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(b) interfere with or disrupt the ChargePoint Services, servers, or networks connected to
the ChargePoint Services, or disobey any requirements, procedures, policies, or regulations of networks
connected to the ChargePoint Services;
(c) restrict or inhibit any other user from using and enjoying the ChargePoint Services or
any other CPI services;
(d) attempt to gain unauthorized access to the ChargePoint Network or the ChargePoint
Services or related systems or networks or any data contained therein, or access or use ChargePoint or
ChargePoint Services through any technology or means other than those provided or expressly authorized
by CPI;
(e) create any ChargePoint Services user account by automated means or under false or
fraudulent pretenses, or impersonate another person or entity on ChargePoint, or obtain or attempt to
obtain multiple keys for the same URL;
(f) reverse engineer, decompile or otherwise attempt to extract the source code of the
ChargePoint Services or any part thereof, or any Charging Station, except to the extent expressly
permitted or required by applicable law;
(g) create derivative works based on any CPI Property;
(h) remove, conceal or cover the CPI Marks or any other markings, labels, legends,
trademarks, or trade names installed or placed on the Charging Stations or any peripheral equipment for
use in connection with Subscriber's Charging Stations;
(i) except as otherwise expressly permitted by this Agreement or in any applicable data
sheet relating to a ChargePoint Service, copy, frame or mirror any part of the ChargePoint Services or
ChargePoint Content, other than copying or framing on Subscriber's own intranets or otherwise solely for
Subscriber's own internal business use and purposes;
(j) access ChargePoint, any ChargePoint Application or the ChargePoint Services for the
purpose of monitoring their availability, performance or functionality, or for any other benchmarking or
competitive purpose, or for any improper purpose whatsoever, including, without limitation, in order to
build a competitive product or service or copy any features, functions, interface, graphics or "look and
feel;"
(k) use any robot, spider, site search/retrieval application, or other device to retrieve or
index any portion of the ChargePoint Services or Content or collect information about ChargePoint users
for any unauthorized purpose;
(1) upload, transmit or introduce any Malicious Code to ChargePoint or ChargePoint
Services;
(m) use any of the ChargePoint Services if Subscriber is a person barred from such use
under the laws of the United States or of any other jurisdiction; or
(n) use the ChargePoint Services to upload, post, display, transmit or otherwise make
available (A) any inappropriate, defamatory, obscene, or unlawful content; (B) any content that infringes
any patent, trademark, copyright, trade secret or other proprietary right of any party; (C) any messages,
communication or other content that promotes pyramid schemes, chain letters, constitutes disruptive
commercial messages or advertisements, or is prohibited by applicable law, the Agreement or the
Documentation.
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5.5 CONTENT.
(a) ChargePoint Content (including but not limited to Charging Station data and status) is
provided for planning purposes only. Subscriber may find that various events may mean actual Charging
Station conditions (such as availability or pricing) differ from what is set forth in the Content. In addition,
certain Charging Station -related Content, including Charging Station name and use restrictions, is set by
the Charging Station owner and is not verified by CPI. Subscriber should exercise judgment in Subscriber's
use of the Content.
(b) Certain Content may be provided under license from third parties and is subject to
copyright and other intellectual property rights of such third parties. Subscriber may be held liable for any
unauthorized copying or disclosure of such third party -supplied Content. Subscriber's use of such Content
may be subject to additional restrictions set forth in the Documentation.
(c) Subscriber shall not copy, modify, alter, translate, amend, or publicly display any of
the Content except as expressly permitted by the Documentation. Subscriber shall not present any portion
of the Content in any manner, that would (i) make such Content false, inaccurate or misleading,
(ii) falsify or delete any author attributions or labels of the origin or source of Content, or (iii) indicate or
suggest that the Charging Station locations provided as part of the Content are anything other than
ChargePoint® Network Charging Stations.
(d) Subscriber shall not remove, obscure, or alter in any manner any proprietary rights
notices (including copyright and trademark notices), warnings, links or other notifications that appear in
the ChargePoint Service.
6. SUBSCRIPTION FEES AND PAYMENT TERMS.
6.1 SUBSCRIPTION FEES. Subscriber shall pay all Subscription Fees within thirty (30) days of
its receipt and approval of CPI's invoice. All payments shall be made in U.S. Dollars by check, wire transfer,
ACH payment system or other means approved by CPI. Customer may not offset any amounts due to CPI
hereunder against amounts due to Customer under this Agreement or any other agreement. Subscription
fees payable to CPI do not include any Taxes imposed thereon, and Subscriber is responsible for any and
all such Taxes. All such Taxes shall be set forth on the invoice provided by CPI to Subscriber; provided that,
CPI's failure to include any such Tax on an invoice shall not relieve Subscriber's liability therefor. Except as
otherwise set forth in this Agreement, all payment obligations under this Agreement are non- cancelable
and non-refundable.
6.2 LATE PAYMENTS. Late payments shall be subject to a charge equal to the lesser of (i) one
and one-half percent (1.5%) per month or (ii) the maximum rate permitted by law. Subscriber will
reimburse CPI for attorneys' fees and other expenses reasonably incurred by CPI in the collection of any
late payments. If any amount owing by Subscriber under this Agreement is more than thirty (30) days
overdue, CPI may, without otherwise limiting CPI's rights or remedies, (a) terminate this Agreement, (b)
suspend the use by Subscriber of the ChargePoint Services until such amounts are paid in full, and/or (c)
condition future ChargePoint Service renewals and other Subscriber purchases on payment terms other
than those set forth herein; provided that CPI shall not exercise any such rights if Subscriber has
reasonably disputed such charges and is cooperating diligently in good faith to resolve the dispute.
7. INTELLECTUAL PROPERTY RIGHTS AND LICENSES.
7.1 CPI PROPERTY. As between CPI and Subscriber, CPI retains and reserves all right, title and
interest (including all related Intellectual Property Rights) in and to the CPI Property and any
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improvements thereto. No rights are granted to Subscriber in the CPI Property hereunder except as
expressly set forth in this Agreement.
7.2 SUBSCRIBER PROPERTY. As between CPI and Subscriber, Subscriber retains and reserves
all right, title and interest (including all related Intellectual Property Rights) in and to (i) all Subscriber
Marks and (ii) all Subscriber Content and Services (collectively, the "Subscriber Property"). No rights are
granted to CPI in the Subscriber Property hereunder except as expressly set forth in this Agreement.
7.3 LIMITED LICENSE TO SUBSCRIBER. CPI hereby grants to Subscriber a royalty -free, non -
assignable, non -transferable, and non-exclusive license to use the CPI Property solely in accordance with
the terms of this Agreement (including without limitation all limitations and restrictions on such use) to
the extent necessary for Subscriber to access, use and receive the ChargePoint Services as permitted
herein.
7.4 LIMITED LICENSE TO CPI. Subscriber hereby grants to CPI a non -assignable, non-
transferable, and non-exclusive license to use the Subscriber Property solely in accordance with the terms
of this Agreement (including without limitation all limitations and restrictions on such use) to the extent
necessary for CPI to provide the ChargePoint Services. CPI may utilize the Subscriber Marks to advertise
that Subscriber is using the ChargePoint Services. The foregoing license includes a perpetual and
irrevocable right of CPI to reproduce, adapt, modify, translate, publicly perform, publicly display and
distribute all Subscriber Content and Services submitted, posted or displayed by Subscriber in the
ChargePoint Services, solely for the purpose of enabling CPI to operate, market and promote the
ChargePoint Services, and to index and serve such Subscriber Content and Services as search results
through ChargePoint Services. CPI shall have a royalty -free, worldwide, transferable, sublicensable,
irrevocable perpetual license to use or incorporate in the ChargePoint Services any suggestions,
enhancement requests, recommendations or other feedback provided by Subscriber or Subscriber Rights
Grantees relating to the ChargePoint Services.
7.5 ADDITIONAL TERMS REGARDING CPI MARKS.
(a) USE LIMITATIONS. Subscriber shall display the CPI Marks in connection with
Subscriber Charging Stations as required in this Agreement during the term of Subscriber's Cloud Plan.
Subscriber shall not use any of the CPI Marks for or with any products other than its Charging Stations.
From time to time, CPI may provide updated CPI Mark usage guidelines on the ChargePoint Application or
elsewhere in the Documentation, and Subscribershall thereafter comply with such updated guidelines. For
any use of the CPI Mark not authorized by such guidelines, or if no such guidelines are provided, then for
each initial use of the CPI Mark, Subscriber must obtain CPI's prior written consent, which shall not be
unreasonably withheld or delayed, and after such consent is obtained, Subscriber may use the CPI Mark
in the approved manner. All use by Subscriber of CPI's Marks (including any goodwill associated therewith)
will inure to the benefit of CPI.
(b) PROHIBITIONS. Subscriber shall not use or display any CPI Mark (or any likeness
of a CPI Mark):
(i) as a part of the name under which Subscriber's business is conducted or in
connection with the name of a business of Subscriber or its Affiliates;
(ii) in any manner that (x) implies a relationship or affiliation with CPI other than
as described under the Agreement, (y) implies any sponsorship or endorsement by CPI, or (z) can be
reasonably interpreted to suggest that any Subscriber Content and Services has been authored by, or
represents the views or opinions of CPI or CPI personnel;
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(iii) in any manner intended to disparage CPI, ChargePoint, or the ChargePoint
Services, or in a manner that is misleading, defamatory, infringing, libelous, disparaging, obscene or
otherwise objectionable to CPI;
(iv) in any manner that violates any law or regulation; or
(v) that is distorted or altered in any way (including squeezing, stretching,
inverting, discoloring, etc.) from the original form provided by CPI.
(c) NO REGISTRATION OF CPI MARKS. Subscriber shall not, directly or indirectly,
register or apply for, or cause to be registered or applied for, any CPI Marks or any patent, trademark,
service mark, copyright, trade name, domain name or registered design that is substantially or confusingly
similar to a CPI Mark, patent, trademark, service mark, copyright, trade name, domain name or registered
design of CPI, or that is licensed to, connected with or derived from confidential, material or proprietary
information imparted to or licensed to Subscriber by CPI. At no time will Subscriber challenge or assist
others to challenge the CPI Marks (except to the extent such restriction is prohibited by law) or the
registration thereof by CPI.
(d) TERMINATION AND CESSATION OF USE OF CPI MARKS. Upon termination of this
Agreement, Subscriber will immediately discontinue all use and display of all CPI Marks.
8. LIMITATIONS OF LIABILITY.
8.1 DISCLAIMER OF WARRANTIES. CHARGEPOINT AND THE CHARGEPOINT SERVICES ARE
PROVIDED "AS IS" AND "AS AVAILABLE" FOR SUBSCRIBER'S USE, WITHOUT WARRANTIES OF ANY KIND,
EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, CPI DOES
NOT WARRANT THAT (A) SUBSCRIBER'S USE OF THE CHARGEPOINT SERVICES WILL BE UNINTERRUPTED,
TIMELY, SECURE, FREE FROM ERROR, OR MEET SUBSCRIBER'S REQUIREMENTS; (B) ALL CONTENT AND
OTHER INFORMATION OBTAINED BY SUBSCRIBER FROM OR IN CONNECTION WITH THE CHARGEPOINT
SERVICES WILL BE ACCURATE AND RELIABLE; (C) ALL DEFECTS IN THE OPERATION OR FUNCTIONALITY OF
THE CHARGEPOINT SERVICES WILL BE CORRECTED. ALL CONTENT OBTAINED THROUGH THE
CHARGEPOINT SERVICES IS OBTAINED AT SUBSCRIBER'S OWN DISCRETION AND RISK, AND SUBSCRIBER
WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO SUBSCRIBER'S COMPUTER SYSTEM OR OTHER
DEVICE, LOSS OF DATA, OR ANY OTHER DAMAGE OR INJURY THAT RESULTS FROM THE DOWNLOAD OR
USE OF ANY SUCH CONTENT.
8.2 EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES. REGARDLESS OF WHETHER
ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL
CPI BE LIABLE 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 OR WHETHER ARISING OUT OF THE
USE OF OR INABILITY TO USE THE CHARGEPOINT NETWORK, ANY CHARGEPOINT SERVICES, THIS
AGREEMENT, A GRANT OR RECEIPT OF RIGHTS OR OTHERWISE OR BASED ON ANY EXPRESSED, IMPLIED
OR CLAIMED WARRANTIES BY SUBSCRIBER NOT SPECIFICALLY SET FORTH IN THISAGREEMENT.
8.3 ELECTRICAL, CELLULAR AND INTERNET SERVICE INTERRUPTIONS. Neither CPI nor
Subscriber shall have any liability whatsoever to the other with respect to damages caused by: (i) electrical
outages, power surges, brown -outs, utility load management or any other similar electrical service
interruptions, whatever the cause; (ii) interruptions in wireless or cellular service linking Charging Stations
to ChargePoint; (iii) interruptions attributable to unauthorized ChargePoint Network intrusions; (iv)
interruptions in services provided by any Internet service provider not affiliated with CPI; or (v) the
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inability of a Charging Station to access ChargePoint as a result of any change in product offerings
(including, without limitation, the any network upgrade or introduction of any "next generation" services)
by any wireless or cellular carrier. This includes the loss of data resulting from such electrical, wireless,
cellular or Internet service interruptions.
8.4 LIMITATION OF LIABILITY. CPI's aggregate liability under this Agreement shall not exceed
aggregate Subscription Fees paid by Subscriber to CPI in the twelve (12) calendar months prior to the
event giving rise to the liability.
8.5 CELLULAR CARRIER LIABILITY. IN ORDER TO DELIVER THE CHARGEPONT SERVICES, CPI
HAS ENTERED INTO CONTRACTS WITH ONE OR MORE UNDERLYING WIRELESS SERVICE CARRIERS (THE
"UNDERLYING CARRIER"). SUBSCRIBER HAS NO CONTRACTUAL RELATIONSHIP WITH THE UNDERLYING
CARRIER AND SUBSCRIBER IS NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN CPI AND
THE UNDERLYING CARRIER. SUBSCRIBER UNDERSTANDS AND AGREES THAT THE UNDERLYING CARRIER
HAS NO LIABILITY OF ANY KIND TO SUBSCRIBER, WHETHER FOR BREACH OF CONTRACT, WARRANTY,
NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE. SUBSCRIBER AGREES TO INDEMNIFY AND HOLD
HARMLESS THE UNDERLYING CARRIER AND ITS OFFICERS, EMPLOYEES, AND AGENTS AGAINST ANY AND
ALL CLAIMS, INCLUDING WITHOUT LIMITATION CLAIMS FOR LIBEL, SLANDER, OR ANY PROPERTY
DAMAGE, PERSONAL INJURY OR DEATH, ARISING IN ANY WAY, DIRECTLY OR INDIRECTLY, IN CONNECTION
WITH USE, FAILURE TO USE, OR INABILITY TO USE THE WIRELESS SERVICES EXCEPT WHERE THE CLAIMS
RESULT FROM THE UNDERLYING CARRIER'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THIS
INDEMNITY WILL SURVIVE THE TERMINATION OF THE AGREEMENT. SUBSCRIBER HAS NO PROPERTY
RIGHT IN ANY NUMBER ASSIGNED TO IT, AND UNDERSTANDS THAT ANY SUCH NUMBER CAN BE
CHANGED. SUBSCRIBER UNDERSTANDS THAT CPI AND THE UNDERLYING CARRIER CANNOT GUARANTEE
THE SECURITY OF WIRELESS TRANSMISSIONS, AND WILL NOT BE LIABLE FOR ANY LACK OF SECURITY
RELATING TO THE USE OF THE CHARGEPOINT SERVICES.
8.6 ADDITIONAL RIGHTS. BECAUSE SOME STATES OR JURISDICITONS DO NOT ALLOW THE
LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES AND/OR THE DISCLAIMER OF
IMPLIED WARRANTIES AS SET FORTH IN THIS SECTION 8, ONE OR MORE OF THE ABOVE LIMITATIONS MAY
NOT APPLY; PROVIDED THAT, IN SUCH INSTANCES, CPI'S LIABILTY AND/OR IMPLIED WARRANTIES
GRANTED IN SUCH CASES SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9. TERM, RENEWAL AND TERMINATION.
9.1 TERM OF AGREEMENT. This Agreement shall become effective on the Effective Date and
shall continue until the expiration of all of Subscriber's Cloud Plans. The Agreement may be renewed by
the Subscriber's renewing the subscription plans.
9.2 CLOUD PLAN TERM. Each Cloud Plan acquired by Subscriber shall commence as follows:
Each Cloud Plan acquired for use with a new Charging Station will commence on the earlier to occur of (i)
the date of Provisioning such new Charging Station, or (ii) one year from the date the Token(s) necessary
for Provisioning such new Charging Station is made available to Subscriber or its installer. Upon expiration
of the original term, this Agreement will renew automatically for successive one-year terms at the list
price applicable thereto, subject to increases (not to exceed 5% annually) and Subscriber's right to
terminate below. Should the renewal be cancelled and subsequently be requested to be reinstated by
Subscriber, reinstatement will be subject to the payment of Subscription Fees for any lapse period plus
reasonable reinstatement fee. If, however, at any time after the original term Subscriber wishes to
terminate a Cloud Plan that has been automatically renewed, Subscriber may do so by providing CPI thirty
(30) days' written notice of cancellation and CPI will issue Subscriber a pro -rata refund of any funds paid
for periods from the effective date of cancellation to the end of the auto -renewed term. Renewals of
Cloud Plans will commence on the date of the expiration of the Subscription being renewed. All other
Cloud Plans will commence on the date of activation of such Cloud Plans, but in no event more than one
Page 9 of 21
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year after the date the Token(s) necessary for such activation is made available to Subscriber. Each
Subscriber Cloud Plan shall continue for the applicable duration thereof, unless this Agreement is
terminated earlier in accordance with its terms.
9.3 TERMINATION BY CPI.
(a) This Agreement may be immediately terminated by CPI: (i) if Subscriber is in material
breach of any of its obligations under this Agreement, and has not cured such breach within thirty (30)
days (or within five (5) days in the case of any payment default) of Subscriber's receipt of written notice
thereof; (ii) Subscriber becomes the subject of a petition in bankruptcy or any other proceeding related
to insolvency, receivership, liquidation or an assignment for the benefit of creditors; (iii) upon the
determination by any regulatory body that the subject matter of this Agreement is subject to any
governmental regulatory authorization or review that imposes additional costs of doing business upon
CPI; or (iv) as otherwise explicitly provided in this Agreement. Regardless of whether Subscriber is then in
breach, CPI may, in its reasonable discretion, determine that it will not accept any renewal by Subscriber of
its subscription to ChargePoint Services. In such case, this Agreement shall terminate upon the later of the
expiration of all of Subscriber's subscriptions to ChargePoint Services.
(b) CPI may in its discretion suspend Subscriber's continuing access to the ChargePoint
Services or any portion thereof if (A) Subscriber has breached any provision of this Agreement, or has
acted in manner that indicates that Subscriber does not intend to, or is unable to, comply with any
provision of this Agreement; (B) such suspension is required by law (for example, due to a change to the
law governing the provision of the ChargePoint Services); or (c) providing the ChargePoint Services to
Subscriber could create a security risk or material technical burden as reasonably determined byCPI.
9.4 TERMINATION BY SUBSCRIBER.
This Agreement may be immediately terminated by Subscriber without prejudice to any
other remedy of Subscriber at law or equity: (i) if CPI is in material breach of any of its obligations under
this Agreement, and has not cured such breach within thirty (30) days of the date of its receipt of written
notice thereof, (ii) CPI becomes the subject of a petition in bankruptcy or any other proceeding related to
insolvency, receivership, liquidation or an assignment for the benefit of creditors, or (iii) upon providing
thirty (30) days prior written notice.
9.5 REFUND OR PAYMENT UPON TERMINATION. Upon any termination of this Agreement
for cause by Subscriber pursuant to Section 9.4(i)or by CPI pursuant to Section 9.3(a)(iii), CPI shall refund
to Subscriber a pro -rata portion of any pre -paid Subscription Fees based upon the remaining Cloud Plan
term. Upon any termination for any other reason, Subscriber shall not be entitled to any refund of any
Subscription Fees as a result of such termination. Except as otherwise set forth in this Agreement, in no
event shall any termination relieve Subscriber of any unpaid Subscription Fees due CPI for the Cloud Plan
term in which the termination occurs or any prior Cloud Plan term.
9.6 SURVIVAL. Those provisions dealing with the Intellectual Property Rights of CPI,
limitations of liability and disclaimers, restrictions of warranty, Applicable Law and those other provisions
which by their nature or terms are intended to survive the termination of this Agreement will remain in
full force and effect as between the Parties hereto regardless of the termination of thisAgreement.
10. INDEMNIFICATION. Subscriber hereby agrees to indemnify, defend and hold CPI, its officers,
directors, agents, affiliates, distribution partners, licensors and suppliers harmless from and against any
and all claims, actions, proceedings, costs, liabilities, losses and expenses (including, but not limited to,
reasonable attorneys' fees) (collectively, "Claims") suffered or incurred by such indemnified parties
resulting from or arising out of Subscriber's actual or alleged use (directly, or through a grantee of Rights
by Subscriber) of the ChargePoint Services, ChargePoint or Subscriber Content and Services. Subscriber
will cooperate as fully as reasonably required in the defense of any claim. CPI reserves the right, at its own
Page 10 of 21
Revised 7.8.21
expense, to assume the exclusive defense and control of any matter subject to indemnification by
Subscriber.
11. GENERAL.
11.1 AMENDMENT OR MODIFICATION. CPI reserves the right to modify this Agreement from
time to time. CPI will provide notice of each such modification to Subscriber. Subscriber's continued use
of the ChargePoint Services following such notice will constitute an acceptance of the modified
Agreement.
11.2 WAIVER. The failure of either Party at any time to enforce any provision of this Agreement
shall not be construed to be a waiver of the right of such Party to thereafter enforce that provision or any other
provision or right. A waiver by either party of any breach, of any term, covenant or condition contained herein shall
not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition
contained herein, whether of the same or a different character.
11.3 FORCE MAJEURE. Except with respect to payment obligations, neither CPI nor Subscriber
will be liable for failure to perform any of its obligations hereunder due to causes beyond such party's
reasonable control and occurring without its fault or negligence, including but not limited to fire, flood,
earthquake or other natural disaster (irrespective of such Party's condition of any preparedness
therefore); war, embargo; riot; strike; labor action; any lawful order, decree, or other directive of any
government authority that prohibits a Party from performing its obligations under this Agreement;
material shortages; shortage of transport; and failures of suppliers to deliver material or components in
accordance with the terms of their contracts.
11.4 NOTICE TO CALIFORNIA CUSTOMERS.
(a) California's Low Carbon Fuel Standard ("LCFS") was enacted to ensure that the
mix of fuels sold by California oil refiners and distributers meets applicable greenhouse gas emissions
targets. California has a statewide goal to reduce carbon intensity of transportation fuels by at least 10%
by 2020.
(b) The ChargePoint Network can track the fueling of electric vehicles, which
positively contributes to reducing California's carbon intensity. If applicable reporting requirements are
met, LCFS credits are issued by the California Air Resources Board. An available LCFS credit may be claimed
by certain owners and operators of electric vehicle charging stations, including both Subscriber and CPI.
However, the LCFS credits are only available to one party, meaning any available credits may be claimed by
either Subscriber or CPI, but not by both. CPI intends to claim available LCFS credits generated from use of
the Charging Stations, but will not claim any available LCFS credits that Subscriber intends to claim. If
Subscriber intends to claim the LCFS credits, it must engage in the reporting and other administrative
obligations necessary to generate such credits.
(c) Subscriber agrees that it will provide CPI with written notice of its intent toclaim
LCFS credits within ten (10) days of the date of the Effective Date. If Subscriber does not currently intend
to claim the LCFS credits, but desires to do so at any time in the future, Subscriber may, by providing
written notice to CPI, elect to claim LCFS credits generated thirty (30) days or more after the date of such
notice. Subscriber represents and warrants to CPI that, in the absence of providing written notice,
Subscriber will not claim any LCFS credits. All notices shall be provided by email to CPI at
Icfsnotification@chargepoint.com.
11.5 NOTICE REGARDING RIN DATA. For Subscriber's located in the United States, CPI will
participate in an application to the U.S. Environmental Protection Agency ("EPA") to permit vehicle
charging data ("Charging Data") collected by CPI from centrally networked charging stations to be utilized
in a process to generate an environmental credit called a Renewable Identification Number ("RIN)" under
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Revised 7.8.21
the Renewable Fuel Standard program. CPI must establish its exclusive right to utilize the Charging Data
and the associated environmental attributes underlying the charging events represented by the Charging
Data (Charging Data and such environmental attributes referred to collectively as, the "RIN Data") for the
purposes of RIN generation. Subscriber confirms that it will not pursue utilizing RIN Data for the purposes
of RIN generation and that, as between Subscriber and CPI, CPI has the exclusive right to use the RIN Data
for the purpose of RIN generation.
11.6 NOTICES.
(a) All notices, demands, requests or approvals, including any change in mailing
address, to be given under the terms of this Agreement shall be given in writing,
and conclusively shall be deemed served when delivered personally, or on the
third business day after the deposit thereof in the United States mail, postage
prepaid, first-class mail, addressed as hereinafter provided.
(b) All notices, demands, requests or approvals from CPI to Subscriber shall be
addressed to City at:
Attn: Public Works Director
Public Works Department
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
(c) All notices, demands, requests or approvals from Subscriber to CPI shall be
addressed to CPI at:
Attn: General Counsel
254 E. Hacienda Avenue
Campbell, CA 95008
Email: mssa@chargepoint.com
11.7 INJUNCTIVE RELIEF. Subscriber acknowledges that damages for improper use of the
ChargePoint Services may be irreparable; therefore, CPI is entitled to seek equitable relief, including but
not limited to preliminary injunction and injunction, in addition to all other remedies.
11.8 SEVERABILITY. Except as otherwise specifically provided herein, if any term or condition
of this Agreement or the application thereof to either Party will to any extent be determined jointly bythe
Parties or by any judicial, governmental or similar authority, to be invalid or unenforceable, the remainder
of this Agreement, or the application of such term or provision to this Agreement, the Parties or
circumstances other than those as to which it is determined to be invalid or unenforceable, will not be
affected thereby.
11.9 ASSIGNMENT. Subscriber may not assign any of its rights or obligations hereunder,
whether by operation of law or otherwise, without the prior written consent of CPI (not to be
unreasonably withheld). In the event of any purported assignment in breach of this Section, CPI shall be
entitled, at its sole discretion, to terminate this Agreement upon written notice given to Subscriber.
Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective
successors and permitted assigns. CPI may assign its rights and obligations under this Agreement.
Page 12 of 21
Revised 7.8.21
11.10 NO AGENCY OR PARTNERSHIP. CPI, in the performance of this Agreement, is an
independent contractor. In performing its obligations under this Agreement, CPI shall maintain complete
control over its employees, its subcontractors and its operations. No partnership, joint venture or agency
relationship is intended by CPI and Subscriber to be created by this Agreement. Neither Party has any right
or authority to assume or create any obligations of any kind or to make any representation or warranty
on behalf of the other Party, whether express or implied, or to bind the other Party in any respect
whatsoever.
11.11 ENTIRE AGREEMENT. This Agreement (including the attached Exhibits) contains the
entire agreement between the Parties with respect to the subject matter hereof and supersedes and
cancels all previous and contemporaneous agreements, negotiations, commitments, understandings,
representations and writings. All purchase orders issued by Subscriber shall state that such purchase
orders are subject to all of the terms and conditions of this Agreement, and contain no other term other
than the type of Cloud Plan, the number of Charging Stations for which such Cloud Plan is ordered, the
term of such Cloud Plans and applicable Subscription Fees. To the extent of any conflict or inconsistency
between the terms and conditions of this Agreement and any purchase order, the Agreement shall prevail.
Notwithstanding any language to the contrary therein, no terms or conditions stated in any other
documentation shall be incorporated into or form any part of this Agreement, and all such purported
terms and conditions shall be null and void.
11.12 COPYRIGHT POLICIES. It is CPI's policy to respond to notices of alleged copyright
infringement that comply with applicable international intellectual property law (including, in the United
States, the Digital Millennium Copyright Act) and to terminate the accounts of repeat infringers.
11.13 THIRD PARTY RESOURCES. The ChargePoint Services may include hyperlinks to other
websites or resources. CPI has no control over any web sites or resources that are provided by companies
or persons other than CPI. Subscriber acknowledges and agrees that CPI is not responsible for the
availability of any such web sites or resources, CPI does not endorse any advertising, products or other
materials on or available from such web sites or resources, and CPI is not liable for any loss or damage
that may be incurred by Subscriber as a result of any reliance placed by Subscriber on the completeness,
accuracy or existence of any advertising, products, or other materials on, or available from, such websites
or resources.
11.14 COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which, taken together, shall constitute but one and the same
document.
11.15 ENGLISH LANGUAGE AGREEMENT GOVERNS. Where CPI has provided Subscriber with a
translation of the English language version of this Agreement, Subscriber agrees that the translation is
provided for Subscriber's convenience only and that the English language version of this Agreement
governs Subscriber's relationship with CPI. If there is any conflict between the English language version of
this Agreement and such translation, the English language version will prevail.
11.16 COMPLIANCE WITH ALL LAWS. CPI shall, at its own cost and expense, comply with all
statutes, ordinances, regulations and requirements of all governmental entities, including federal, state,
county or municipal, whether now in force or hereinafter enacted. In addition, all Services provided by CPI
shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements
and be subject to approval of the Subscriber.
11.17 INTERPRETATION. The terms of this Agreement shall be construed in accordance with
the meaning of the language used and shall not be construed for or against either party by reason of the
authorship of the Agreement or any other rule of construction which might otherwise apply.
11.18 AMENDMENTS. This Agreement may be modified or amended only by a written
Page 13 of 21
Revised 7.8.21
document executed by both CPI and Subscriber and approved as to form by the City Attorney
11.19 CONTROLLING LAW AND VENUE. The laws of the State of California shall govern this
Agreement and all matters relating to it and any action brought relating to this Agreement shall be
adjudicated in a court of competent jurisdiction in the County of Orange, State of California.
11.20 EQUAL OPPORTUNITY EMPLOYMENT. CPI represents that it is an equal opportunity
employer and it shall not discriminate against any subcontractor, employee or applicant for employment
because race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital
status, sex, sexual orientation, age or any other impermissible basis under law.
11.21 NO ATTORNEYS' FEES. In the event of any dispute or legal action arising under this
Agreement, the prevailing party shall not be entitled to attorneys' fees.
[SIGNATURES FOLLOW ON NEXT PAGE]
Page 14 of 21
Revised 7.8.21
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below.
CITY OF NEWPORT BEACH, a California municipal
corporation
A
CPI: ChargePoint, Inc., a Delaware corporation
By:
Name: v Name: eCPC1r
Grace K. Leung Henrik Gerdes
Title: Title:
d �r
City Manager Chief Accoulitiing Officer
Date: Date:
NOV 0 S 2029
Address: Address:
100 Civic Center Drive 254 E. Hacienda Ave
Newport Beach, CA 92660 Campbell, CA 95008
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
By:
Aaron C. Harp
City Attorney
ATTEST:
Date: I. �✓• �WO�
Leilani I. Brown >-
City Clerk �}
P
Attachments: Exhibit 1 - Flex Billing Terms
Exhibit 2 - API Terms
Exhibit 3 —Terms Regarding Granting of Rights
Exhibit 4 — ChargePoint Cloud Plan and Assure Maintenance & Management
Page 15 of 21
Revised 7.8.21
EXHIBIT 1
FLEX BILLING TERMS
This Exhibit sets forth certain additional terms and conditions ("Flex Billing Terms") pursuant to which
Subscriber may charge Users fees for the use of Subscriber's Charging Stations. In order to charge such
fees, Subscriber must subscribe to a Cloud Plan that includes CPI's management, collection and/or
processing services related to such fees ("Flex Billing").
1. DEFINITIONS. The following additional defined terms shall apply to these Flex BillingTerms:
1.1 "CPI Fees" means a fee, currently equal to ten percent (10%) of Session Fees, charged for
a particular Session. CPI Fees are charged by CPI in exchange for its collection and processing of Session
Fees on behalf of Subscriber. CPI will provide Subscriber with thirty (30) days prior written notice (which
may include, without limitation, notice provided by CPI through its regular newsletter to Subscriber) of
any increase in CPI Fees.
1.2 "Overstay Fees" means a fee, charged on a per -minute basis following a designated grace
period at a rate established by the Subscriber, that shall automatically apply to vehicles that remain
plugged into a Charging Station after the electric vehicle has completed its charge.
1.3 "Net Session Fees" means the total amount of Session Fees, which includes Overstay Fees,
collected on behalf of the Subscriber by CPI, less CPI Fees and Taxes, if any, required by law to be collected
by CPI from Users in connection with the use of Charging Stations. Except as required by law, Subscriber
shall be responsible for the payment of all Taxes incurred in connection with use of Subscriber's Charging
Stations.
1.4 "Session" or "Charging Session" means the period of time during which a User uses
Subscriber's Charging Station to charge the electric vehicle for a continuous period of time not less than
two (2) minutes commencing when a User has accessed such Charging Station and ending when the vehicle
has completed its charge, inclusive of any Overstay Fees, and/or until such User has terminated such
access.
1.5 "Session Fees" means the fees set by the Subscriber for a Charging Session, inclusive of
Overstay Fees and any applicable Taxes.
2. FLEX -BILLING SERVICE FOR CHARGING STATIONS.
2.1. SESSION FEES & OVERSTAY FEES. Subscriber shall have sole authority to determine and set
Session Fees and Overstay Fees. Subscriber shall be solely responsible for determining and charging
Session Fees in compliance with all applicable laws and regulations (including without limitation any
restriction on Subscriber's use of per- kWh pricing). Subscriber acknowledges that CPI is not responsible
for informing Subscriber of applicable laws or changes thereto, and CPI will not be liable to Subscriber or
any third party for any alleged or actual failure of Subscriber to comply with such applicable laws and
regulations.
2.2 DEDUCTIONS FROM SESSION & OVERSTAY FEES. In exchange for CPI collecting Session
Fees and Overstay Fees on behalf of the Subscriber, the Subscriber hereby authorizes CPI to deduct from
all Session Fees, including Overstay Fees collected: (i) CPI Fees and (ii) to the extent required by Section 3,
applicable Taxes.
2.3 PAYMENT TO SUBSCRIBER OF NET SESSION FEES. CPI will remit Net Session Fees to
Subscriber, not less than quarterly, provided that the amount due to Subscriber hereunder is at least Two
Page 16 of 21
Revised 7.8.21
Hundred and Fifty Dollars and 00/100 ($250.00). Notwithstanding, the foregoing, CPI shall remit any
unpaid Net Session Fees, regardless of the amount, to Subscriber at least annually and within thirty (30)
days of the expiration or termination of this Agreement. All payments shall be made by ACH. Remittance
statements shall be provided to Subscriber indicating the total Session Fees and total Overstay Fees
received. In order to facilitate such payments, Subscriber agrees to provide to CPI, or its payment provider,
Subscriber's bank information to enable electronic remittance of the Net Session Fees. If the Subscriber
requests payment in a manner other than ACH (e.g., check or wire transfer), Subscriber agrees to bear the
reasonable costs related to such request.
3. TAXES. If applicable, Subscriber is responsible for setting pricing on a Tax inclusive basis. CPI is not
responsible for remittance of any Taxes on behalf of Subscriber and Subscriber shall be responsible to
report and remit any and all applicable taxes whether state, federal, provincial or otherwise; provided
that CPI is solely responsible for all Taxes assessable based on CPI's income, property and employees.
Where CPI is required by law to collect and/or remit the Taxes for which Subscriber is responsible, the
appropriate amount shall be invoiced to Subscriber and deducted by CPI from Session Fees, unless
Subscriber has otherwise provided CPI with a valid tax or regulatory exemption certificate or
authorization from the appropriate taxing or regulatory authority.
Page 17 of 21
Revised 7.8.21
EXHIBIT 2
API TERMS
This Exhibit sets forth certain additional terms and conditions ("API Terms") governing Subscriber's use of
the APIs in connection with Subscriber's use of the ChargePoint Services. The API Terms are part of the
Agreement, and all such use of the APIs remains subject to the Agreement terms.
1. ADDITIONAL DEFINITIONS. The following additional definitions shall apply to the API Terms.
1.1 "API Implementation" means a Subscriber software application or website that uses any
of the APIs to obtain and display Content in conjunction with Subscriber Content and Services.
1.2 "API Documentation" means all Documentation containing instructions, restrictions or
guidelines regarding the APIs or the use thereof, as amended and/or supplemented by CPI from time to
time.
1.3 "CPI Site Terms" means the Terms and Conditions displayed on CPI's website, governing
use of CPI's website and the ChargePoint Services by visitors who are not Cloud Plan subscribers.
2. API USE. Subscriber may use the APIs as and to the extent permitted by Subscriber's Cloud Plan
and the API Documentation, subject to the terms and conditions of the Agreement.
2.1 AVAILABLE APIs AND FUNCTION CALLS. The APIs give Subscriber access to information
through a set of function calls. The particular APIs and API function calls made available by CPI from time
to time (and the Content available through such APIs and function calls) will be limited by Subscriber's
Cloud Plan, and Subscriber's particular Cloud Plan may not include all APIs and function calls then available
from CPI.
2.2 USE AND DISPLAY OF CONTENT. Subscriber is permitted to access, use and publicly
display the Content with Subscriber Content and Services in Subscriber's API Implementation, subject to
the following requirements and limitations.
(a) All Charging Station locations provided to Subscriber as part of the Content shall be
clearly identified by Subscriber in Subscriber's API Implementation as ChargePoint Network Charging
Stations and shall contain the Brand Identifiers required by the API Documentation. In no event shall
Subscriber's API Implementation identify or imply that any Charging Station is a part of any network of
charging stations other than ChargePoint.
(b) Subscriber shall keep the Content used by Subscriber's API Implementation current
with Content obtained with the APIs to within every forty eight (48) hours.
(c) Content provided to Subscriber through the APIs may contain the trade names,
trademarks, service marks, logos, domain names, and other distinctive brand features of CPI's business
partners and/or other third party rights holders of Content indexed by CPI, which may not be deleted or
altered in any manner.
(d) Subscriber shall not:
Page 18 of 21
Revised 7.8.21
(i) pre -fetch, cache, or store any Content, except that Subscriber may store limited
amounts of Content for the purpose of improving the performance of Subscriber's API Implementation if
Subscriber does so temporarily, securely, and in a manner that does not permit use of the Content outside
of the ChargePoint Service;
(ii) hide or mask from CPI the identity of Subscriber's service utilizing the APIs,
including by failing to follow the identification conventions listed in the API Documentation; or
(iii) defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such
as rights of privacy and publicity) of others.
2.3 REQUIRED INFORMATION. Subscriber must:
(a) display to all viewers and users of Subscriber's API Implementation the link to the CPI
Site Terms and Conditions as presented through the ChargePoint Services or described in the
Documentation;
(b) explicitly state in the use terms governing Subscriber's API Implementation that, by
using Subscriber's API Implementation, such viewers and users are agreeing to be bound by the CPI Site
Terms; and
(c) include in Subscriber's API Implementation, and abide by, a privacy policy complying
will all applicable laws; and
(d) comply with all applicable laws designed to protect the privacy and legal rights of users
of Subscriber's API Implementation.
2.4 REPORTING. Subscriber must implement reporting mechanisms, if any, that CPI requires
in the API Documentation.
3. CPI BRANDING REQUIREMENTS AND RESTRICTIONS.
3.1 MANDATORY CPI BRANDING. Subject to Section 3.2 below and the restrictions on use of
CPI Marks set forth in the Agreement, Subscriber agrees that each page comprising Subscriber's API
Implementation will include a ChargePoint logo and will state that Subscriber's application or website is
provided, in part, through the ChargePoint Services
3.2 RESTRICTIONS. Subscriber shall not:
(a) display any CPI Mark as the most prominent element on any page in Subscriber's API
Implementation or Subscriber's website (except as used in connection with the display of Charging
Stations); or
(b) display any CPI Mark anywhere in Subscriber's API Implementation or on Subscriber's
website if Subscriber's API Implementation or website contains or displays adult content or promotes
illegal activities, gambling, or the sale of tobacco or alcohol to persons under twenty-one (21) years of
age.
Page 19 of 21
Revised 7.8.21
EXHIBIT 3
TERMS REGARDING GRANTING OF RIGHTS
This Exhibit sets forth certain additional terms and conditions applicable to Rights Grantors and Rights
Grantees regarding the granting of Rights ("Rights Terms"). The Rights Terms are part of the Agreement,
and all use of the ChargePoint Services permitted pursuant to the Rights Terms remains subject to the
Agreement.
1. ADDITIONAL DEFINITIONS. The following additional definitions shall apply.
1.1 "Rights Grantor" means Subscriber.
1.2 "Rights Grantee"means any person to whom Subscriber has granted Rights. For purposes
of this Agreement, a Subscriber shall be deemed to have granted Rights to the entity assisting Subscriber
with creating its account and initiating Subscriber's access to Services.
2. TERMS. This Section governs Subscriber's granting of Rights as a Rights Grantor.
2.1 LIMITED RIGHTS. A Rights Grantee's right to access and use the ChargePoint Services for and
on behalf of a Rights Grantor is limited to the specific Rights granted by such Rights Grantor to such Rights
Grantee. Such Rights may be limited according to the Cloud Plan(s) subscribed to by Subscriber. Subscriber may
revoke Rights, or any portion thereof, it has granted to a Rights Grantee at will and such Rights will thereafter
by terminated with respect to such Rights Grantee. In no event may Subscriber grant Rights in excess of those
provided to it through the Cloud Plan(s) to which it has subscribed.
2.2 RESPONSIBILITY FOR AUTHORIZED USER. All use of the ChargePoint Services by a Rights
Grantee exercising Rights granted by Subscriber shall be subject to the terms and conditions of the Agreement
(including without limitation Subscriber's indemnification obligation pursuant to Section 10 thereof).
Subscriber shall be responsible for the actions, omissions, or performance of such Rights Grantee while
exercising any such Rights, as if such action, omission or performance had been committed by Subscriber
directly.
2.3 NO AGREEMENT. Subscriber acknowledges and agrees that the ChargePoint Services merely
enable a Rights Grantor to extend Rights to Rights Grantees. The mere extension of such Rights by a Rights
Grantor to a Rights Grantee does not constitute an agreement between Rights Grantor and the Rights Grantee
with respect to the granted Rights or the exercise of such Rights by the Rights Grantee. CPI does not, either
through the terms of the Agreement or the provision of ChargePoint Services undertake to provide any such
agreement. It is the responsibility of the Rights Grantor and the Rights Grantee to enter into such an agreement
on terms mutually acceptable to each. CPI expressly undertakes no liability with respect to such an agreement
and Rights Grantor fully and unconditionally releases CPI from any liability arising out of such an agreement.
Further Rights Grantor agrees to indemnify and hold CPI, its officers, directors, agents, affiliates, distribution
partners, licensors and suppliers harmless from and against any and all claims, actions, proceedings, costs,
liabilities, losses and expenses (including, but not limited to, reasonable attorneys' fees) (collectively,
"Claims") suffered or incurred by such indemnified parties resulting from or arising out of such agreement.
Page 20 of 21
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EXHIBIT 4
CHARGEPOINT CLOUD PLAN AND ASSURE MAINTENANCE & MANAGEMENT
Page 21 of 21
Revised 7.8.21
CHARGEPOINT ASSURE
TERMS AND CONDITIONS OF SERVICE
Welcome to ChargePoint Assure. ChargePoint Assure is a full service maintenance and support program designed
specifically for ChargePoint customers.
1. WHAT IS COVERED: With ChargePoint Assure, ChargePoint agrees to do each of the following:
a. Ensure that all parts are provided and labor is performed, on-site if necessary, to correct any defect in the
materials or workmanship of electric vehicle charging stations purchased from ChargePoint, Inc., or its
representatives ("Charging Stations") in a prompt and professional manner.
b. Provide remote, automated monitoring of your Charging Stations.
C. Perform triage with respect to any Charging Station that may be defective.
d. Coordinate all repairs necessary to have your Charging Station back up and running.
e. Ensure that you are provided response no later than one business day from the date ChargePoint becomes
aware of an issue.
f. Begin onsite repairs within one business day from the delivery of any parts required to fix your Charging
Station.
g. ChargePoint will provide software moves, adds and changes at no additional cost
h. ChargePoint guarantees a 98% annual station uptime with a prorated refund of up to the annual station
Assure maintenance fee for outages caused by station hardware or software failures in excess of 2%
annually
i. ChargePoint will provide standard monthly summary and quarterly detailed station usage and performance
metrics.
j. ChargePoint will cover the labor portion of non -cosmetic station repairs caused by vandalism, auto accidents
or excessive wear and tear.
2. WHAT IS NOT COVERED: ChargePoint undertakes no responsibility with respect to repairing, replacing, monitoring
or servicing anything other than your Charging Stations. This means, for example, that ChargePoint is not
responsible for the physical mounting and electrical wiring of your Charging Stations or for the performance of any
cellular or Wi-Fi repeaters or other devices installed in connection with your Charging Stations.
3. CUSTOMER RESPONSIBILITIES: In order to perform its obligations under ChargePoint Assure, ChargePoint needs
your cooperation. Specifically, you agree to:
a. Provide reasonable access to ChargePoint or its designee as necessary for the performance of
ChargePoint's obligations.
b. Permit ChargePoint to access the Charging Stations remotely by maintaining a separately purchased Cloud
Services subscription necessary for remote access.
C. Maintain your premises in accordance with all applicable laws, rules and regulations.
d. Keep the areas in which Charging Stations are located in a clean, safe and orderly condition, to at least the
same standard as you customarily use to maintain the remainder of your premises.
e. Promptly notify ChargePoint of any suspected defect with a Charging Station.
4. WHO IS ELIGIBLE FOR CHARGEPOINT ASSURE?: ChargePoint Assure is only available to purchasers of
Charging Stations who purchase ChargePoint Assure and either: 1) use a ChargePoint Operations and Maintenance
Partner ("O&M Partner") to install their Charging Stations or 2) successfully complete a site validation as described
below.
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a. ChargePoint O&M Partner Installation. For information on how to contact a ChargePoint O&M Partner,
please contact your ChargePoint sales representative or authorized ChargePoint reseller for more details.
b. Site Validation: If you do not use an O&M Partner to install your Charging Station, you still will be eligible
for ChargePoint Assure after your installation has been validated by ChargePoint or an authorized third party. The
purpose of the site validation is to ensure that your Charging Stations were installed correctly, in accordance with
ChargePoint's recommended specifications and operational requirements. Site validations require the payment of
ChargePoint's then current fee, charged on a "per site" basis. For these purposes, a "site" is defined as any group of
Charging Stations whose circuits are terminated at the same power panel.
5. EXCLUSIONS FROM COVERAGE: ChargePoint's obligations under ChargePoint Assure shall not apply to defects
or service repairs resulting from the following:
a. Cosmetic damage such as scratches and dents.
b. Normal aging.
C. Except as provided in 10) above, abuse, vandalism, damage or other problems caused by accidents or
negligence (including but not limited to physical damage from being struck by a vehicle), or use of the Charging
Station in a way other than as specified in the applicable Charge Point documentation.
d. Installation, alteration, modification or relocation of the Charging Station that was not approved in writing by
ChargePoint, performed by an O&M Partner or validated in the manner described above.
e. Use of the Charging Station with software, interfacing, parts or supplies not supplied by ChargePoint.
f. Damage as a result of extreme power surge, extreme electromagnetic field or any other acts of nature.
In addition ChargePoint's obligations under ChargePoint Assure shall not apply to any Charging Station that was not
installed by a ChargePoint O&M Partner or a ChargePoint certified installer pursuant to the provisions of Section 4 of
these Terms and Conditions.
6. CONTACT INFORMATION: If at any time turning the term of your coverage of ChargePoint Assure you believe you
have a defective Charging Station, contact Customer Service at 1-877-850-4562 or support chargepoint.com.
7. SERVICE TERM: If you comply with the installation requirements described in Section 4, and purchase ChargePoint
Assure, you will receive, ChargePoint Assure coverage that will replace your standard ChargePoint Warranty and will
last for the remainder of the standard Warranty period, if any. You may purchase extensions to your ChargePoint
Assure coverage. The extension period will begin on the date your standard Exchange Warranty expires or, if
applicable, the date that any extensions to ChargePoint Assure coverage that you have previously purchased expire.
Please contact your ChargePoint sales representative or authorized ChargePoint reseller for more details.
8. PAYMENTS: ChargePoint will send you an invoice for the ChargePoint Assure coverage that you order. Payment is
due within thirty (30) days of the invoice date. If you have purchased extended ChargePoint Assure coverage and
have chosen the annual payment option, ChargePoint will invoice each annual payment on the anniversary date of
your Assure coverage. All payments shall be made in U.S. Dollars and may be made by check, wire transfer, ACH
payment system or other means approved by ChargePoint. Customer may not offset any amounts due to
ChargePoint hereunder against amounts due to Customer under this Agreement or any other agreement. Fees
payable to ChargePoint do not include any Taxes, and Subscriber is responsible for any and all such Taxes.
All payment obligations under this Agreement are non -cancelable and non-refundable. Late payments shall be
subject to a charge equal to the lesser of (i) one and one-half percent (1.5%) per month or (ii) the maximum rate
permitted by law. Customer will reimburse ChargePoint for attorneys' fees and other expenses reasonably incurred
by ChargePoint in the collection of any late payments. If any amount owing by you under this Agreement is more
than thirty (30) days overdue, ChargePoint may, without otherwise limiting ChargePoint's rights or remedies, (a)
terminate this Agreement and (b) refuse to provide ChargePoint Assure coverage until ChargePoint has received
payment in full.
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9. TRANSFERS: Your ChargePoint Assure coverage applies only to the Charging Stations and installation site for
which it was purchased. If you sell or otherwise transfer your Charging Stations, your ChargePoint Assure coverage
may not be transferred without ChargePoint's prior written consent.
10. REPLACEMENT PARTS AND STATIONS: Replacement parts or charging stations provided by ChargePoint under
ChargePoint Assure may be remanufactured or reconditioned parts or Charging Stations or, if the exact Charging
Station is no longer manufactured by ChargePoint, a Charging Station with substantially similar functionality. All
replaced parts and Charging Stations, whether under warranty or not, become the property of ChargePoint. Any
replacement parts or Charging Stations so furnished will be covered by ChargePoint Assure for the remainder of your
ChargePoint Assure coverage or ninety (90) days from the date of delivery of such replacement parts or Charging
Stations, whichever is later.
11. LIMITS ON LIABILITY: This section limits ChargePoint's liability under ChargePoint Assure. Please read it
carefully.
a. CHARGEPOINT IS NOT LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR
CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST BUSINESS,
LOST DATA, LOSS OF USE, OR COST OF COVER INCURRED BY YOU ARISING OUT OF OR
RELATED TO YOUR PURCHASE OR USE OF, OR INABILITY TO USE, THE CHARGING STATION,
UNDER ANY THEORY OF LIABILITY, WHETHER IN AN ACTION IN CONTRACT, STRICT LIABILITY,
TORT (INCLUDING NEGLIGENCE) OR OTHER LEGAL OR EQUITABLE THEORY, EVEN IF
CHARGEPOINT KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN
ANY EVENT, THE CUMULATIVE LIABILITY OF CHARGEPOINT FOR ALL CLAIMS WHATSOEVER
RELATED TO PERFORMANCE BY CHARGEPOINT OF ITS OBLIGATIONS UNDER CHARGEPOINT
ASSURE WILL NOT EXCEED THE PRICE YOU PAID FOR CHARGEPOINT ASSURE. THE LIMITATIONS
SET FORTH HEREIN ARE INTENDED TO LIMIT THE LIABILITY OF CHARGEPOINT AND SHALL APPLY
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
b. Some states or jurisdictions do not allow the exclusion or limitation of incidental or consequential damages,
so the above limitation or exclusion may not apply to you.
12. ARBITRATION: Intentionally Deleted.
13. AMENDMENT OR MOFICIATION: These ChargePoint Assure Terms and Conditions of Service may not be
amended or modified except pursuant to a writing executed by each of the parties.
14. WAIVER: The failure of either Party at any time to enforce any provision of this Agreement shall not be construed to
be a waiver of the right of such Party to thereafter enforce that provision or any other provision or right.
15. FORCE MAJEURE: ChargePoint will not be liable for failure to perform any of its obligations hereunder due to
causes beyond its reasonable control and occurring without its fault or negligence, including but not limited to fire,
flood, earthquake or other natural disaster (irrespective of ChargePoint's condition of any preparedness therefore);
war, embargo; riot; strike; labor action; any lawful order, decree, or other directive of any government authority that
prohibits ChargePoint from performing its obligations under this Agreement; material shortages; shortage of transport;
and failures of suppliers to deliver material or components in accordance with the terms of their contracts.
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16. SEVERABILITY. Except as otherwise specifically provided herein, if any term or condition of this Agreement or the
application thereof to either Party will to any extent be determined jointly by the Parties or by any judicial,
governmental or similar authority, to be invalid or unenforceable, the remainder of this Agreement, or the application
of such term or provision to this Agreement, the Parties or circumstances other than those as to which it is
determined to be invalid or unenforceable, will not be affected thereby.
17. ASSIGNMENT. You may not assign any of its rights or obligations hereunder, whether by operation of law or
otherwise, without the prior written consent of ChargePoint. In the event of any purported assignment in breach of this
Section 17, ChargePoint shall be entitled, at its sole discretion, to terminate these ChargePoint Assure Terms and
Conditions of Service by providing written notice to you. Subject to the foregoing, this Agreement shall bind and inure
to the benefit of the parties, their respective successors and permitted assigns. ChargePoint may assign its rights
and obligations under this Agreement.
18. ENTIRE AGREEMENT. This Agreement contains the entire agreement between the parties with respect to the
subject matter hereof and supersedes and cancels all previous and contemporaneous agreements, negotiations,
commitments, understandings, representations and writings. To the extent of any conflict or inconsistency between
these ChargePoint Assure Terms and Conditions of Service and any purchase order, the Agreement shall prevail.
19. COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which shall be deemed
an original, but all of which, taken together, shall constitute but one and the same document.
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