Network Services Agreement (this “Agreement”) constitute a binding legal
contract between activateEV, LLC and you, or the corporation, partnership, or other
legal entity you represent as Subscriber (as defined below) in relation to use
of activateEV’s Services (as defined below). By using the activateEV Services,
downloading the activateEV Application (as defined below) or using any of the activateEV
Services. By using any or all the activateEV Services each Party consents to
and agrees to be bound by them. Noncompliance with any of the provisions of
any specific of its stakeholders.
a. SCOPE OF AGREEMENT. This Agreement governs the following activities:
i. Provisioning of Subscriber’s Charging Station(s) on the activateEV network;
ii. Activation and use of the activateEV Services on Subscriber’s Charging Station(s):
iii. Subscriber’s use of the APIs as part of the activateEV Services;
iv. Each grant of Rights by Subscriber; and
v. Each grant of Rights by a third-party to Subscriber.
Exhibit 1: User Billing Terms
Exhibit 2: API Terms
Exhibit 3: Terms Regarding Granting and Receipt of Rights
The following terms have the definitions set out below when used in this Agreement:
“activateEV” means activateEV, LLC, a wholly owned subsidiary of JuiceBar
“activateEV Application” means any of the applications established and maintained by activateEV which allows Subscriber to access the activateEV Services.
“activateEV Cards” has the meaning set out in Section 5(c).
“activateEV Marks” means the various trademarks, service marks, trade names, logos, domain names, and other distinctive brand features and designations used in connection with activateEV and/or JuiceBar manufactured Charging Stations, including without limitation, “JuiceBar” and “activateEV.”
“activateEV Property” means (i) activateEV, (ii) the activateEV Services (including all Content), (iii) all data generated or collected by activateEV in connection with the operation of the Charger(s) and activateEV Services, (iv) the activateEV Marks, (v) the activateEV Cards, and (vi) all other JuiceBar or activateEV-supplied material developed or provided by JuiceBar or activateEV for the Subscriber’s use in connection with the activateEV Services and/or the Charging Stations.
“activateEV Services” means, collectively, the smart network, cloud service offerings the activateEV network delivers to provide various services to, among others, Subscriber, its employees and Users (including, without limitation, APIs, the activateEV Application, and SMART Plans) made available for subscription by activateEV.
“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 subject entity.
“APIs” means, individually or collectively, the application programming interfaces which are made available to Subscriber from time to time, as and when updated by activateEV.
“Charging Station” means the electric vehicle charging station(s) purchased by Subscriber, whether manufactured by JuiceBar or by another activateEV authorized electric vehicle charger provider, which are registered and activated on the activateEV Services.
“Claims” has the meaning set out in Section 10.
“Content” means all data collected or maintained by activateEV or JuiceBar in connection with the operation of the Charging Station(s).
“Documentation” means written information (whether contained in user or technical manuals, product materials, specifications or otherwise) pertaining to activateEV Services, the Charging Stations, and/or JuiceBar and made available from time to time by activateEV or JuiceBar to Subscriber in any manner (including on-line).
“Effective Date” means the earliest of (a) the effective date of Subscriber’s purchase & sale agreement for the Charging Station and/or activateEV Services associated with this Agreement; (b) the date that Subscriber electronically accepts this Agreement, or (c) the date of Subscriber’s first use of the activateEV Services.
“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, Documents, manuals, memoranda and records.
“JuiceBar®” means the brand of Made in the USA, open protocol-platform, electric vehicle Charging Stations and applications manufactured by Oasis Charger Corporation.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and all other forms of malicious code, including without limitation, malware, spyware, files, scripts, agents or programs.
“Party” means each of activateEV and Subscriber.
“PII” 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 a User.
“Provisioning” means activating Charging Stations, warrantees, and SMART Plans on a Charging Station.
“Regulatory Compliance Mechanisms” has the meaning set out in Section 11(e).
“Rights” means the rights, authorizations, privileges, actions, information, and settings within the activateEV Services which the Subscriber grants to a Rights Grantee, to enable such Rights Grantee to access, obtain and use certain portions of the activateEV Services and certain information available therein while providing services to or on behalf of the Subscriber in connection with one or more of the Charging Stations. The Subscriber 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.
“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.
“SMART Plan(s)” means subscription plans to the activateEV Services which are offered and sold by activateEV from time to time, which vary according to their features, privileges, and pricing. Each SMART Plan may be referred to as a “Subscription”.
“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 activateEV Services, other than Content, Documents, activateEV Services and activateEV Property.
“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.
“Subscriber Property” has the meaning set out in Section 7(b).
“Subscription Fees” means the fees payable by Subscriber for subscribing to any activateEV Services.
“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.
“User” means any person using a Charging Station.
3. AVAILABLE ACTIVATEEV SERVICES & SMART PLANS
A description of the various activateEV Services and SMART Plans currently available for subscription is located on the activateEV website (https://juicebarcharger.com/activateev-resources/). activateEV may make other activateEV Services and/or SMART Plans available from time to time and may amend the features or benefits offered with respect to any activateEV Service or SMART Plan at any time and from time to time. Subscription Fees are based on Subscriber’s choice of SMART Plan and not on actual usage of the Subscription.
4. ACTIVATEEV’S RESPONSIBILITIES AND AGREEMENTS
a. OPERATION OF THE ACTIVATEEV SERVICES. ActivateEV agrees to provide and shall be solely responsible for:
i. Provisioning and operating, maintaining, administering and supporting activateEV (other than Subscriber’s Charging Stations and infrastructure for transmitting data from Charging Stations to any activateEV operations center);
ii. Provisioning and operating, maintaining, administering and supporting the activateEV Applications;
iii. Operating activateEV Services in compliance with all applicable laws; and
activateEV 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 using the activateEV Services;
ii. Continuous availability of electrical service to any of Subscriber’s Charging Stations;
iii. Continuous availability of any wireless or cellular communications network or Internet service provider network necessary for the continued operation of a Charging Station or the activateEV Services;
iv. Availability of or interruption of the activateEV Services attributable to unauthorized intrusions;
v. Charging Stations that are not registered with and activated on the activateEV Services; and/or
vi. In no event shall JuiceBar or activateEV be responsible for the cost of electricity incurred from the use of the Charging Station(s)
5. SUBSCRIBER’S RESPONSIBILITIES AND AGREEMENTS
i. All use of activateEV and activateEV Services by Subscriber, its employees and agents and its Rights Grantees shall comply with this Agreement and all the rules, limitations and policies of activateEV set forth in the Documentation. All activateEV Services account details, passwords, keys, etc. are granted to Subscriber solely for Subscriber’s own use (and the use of its Rights Grantees), and Subscriber shall keep all such items secure and confidential.
ii. Subscriber shall prevent, and shall be fully liable to activateEV for, any unauthorized access to, or use of, the Charging Station or the activateEV Services via Subscriber’s Charging Stations, the activateEV Services account(s) or other equipment. Subscriber shall immediately notify activateEV upon becoming aware of any such unauthorized use.
iii. Subscriber shall be solely responsible for: (A) the onsite activation of its Charging Stations, if any, (B) keeping Subscriber’s contact information, email address for the receipt of notices hereunder, and billing address for invoices both accurate and up to date; (C) updating on the applicable activateEV Application, within five (5) business days, the location to which any of Subscriber’s Charging Stations are moved; (D) the maintenance, service, repair and/or replacement of Subscriber’s Charging Stations as needed, including informing activateEV of the existence of any Charging Stations that are non-operational and not intended to be replaced or repaired by Subscriber; and (E) compliance with all applicable laws.
iv. Subscriber shall deliver in full all benefits promised to Users by Subscriber in exchange for such Users connecting with Subscriber using the activateEV Services.
b. REPRESENTATIONS AND WARRANTIES OF SUBSCRIBER. Subscriber represents and warrants to activateEV 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 activateEV Services;
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.
c. ACTIVATEEV CARDS. Subscriber and Users directly may be permitted by activateEV, in activateEV’s sole discretion, to obtain activateEV provisioned radio-frequency identification cards (“activateEV Cards“) which enable the individual card recipients to access and use the Charging Station. Where Subscriber orders the activateEV Cards directly, Subscriber may distribute such activateEV Cards to individuals, and each individual activateEV Card recipient is responsible for activating his or her activateEV Card on the activateEV Services directly with activateEV on the activateEV Application. In no event will Subscriber create any separate activateEV accounts for any activateEV Card recipients or other third parties, nor will Subscriber create anonymous activateEV accounts associated with any activateEV Cards.
d. USE RESTRICTIONS AND LIMITATIONS. Subscriber shall not:
i. Sell, resell, license, rent, lease or otherwise transfer the activateEV Services or any Content therein to any third party;
ii. Interfere with or disrupt the activateEV Services, servers, or networks connected to the activateEV Services, or disobey any requirements, procedures, policies, or regulations of networks connected to the activateEV Services;
iii. Restrict or inhibit any other user from using and enjoying the activateEV Services or any other activateEV services;
iv. Attempt to gain unauthorized access to the activateEV Services or systems or networks or any data contained therein, or access or use the Charging Station or activateEV Services through any technology or means other than those provided or expressly authorized by activateEV;
v. Create any activateEV Services user account by automated means or under false or fraudulent pretenses, or impersonate another person or entity on the activateEV Services, or obtain or attempt to obtain multiple keys for the same URL;
vi. Reverse engineer, decompile or otherwise attempt to extract the source code of the activateEV Services or any part thereof, or any Charging Station;
vii. Create derivative works based on any activateEV Property;
viii. Remove, conceal or cover the activateEV 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;
ix. Use or permit use, by an act or omission, activateEV’s trademarks or other intellectual property in any manner that degrades, disparages or reflects adversely on activateEV, JuiceBar or their respective businesses or reputations or that would be detrimental to the JuiceBar or activateEV trademarks or their respective, associated goodwill;
x. Except as otherwise expressly permitted by this Agreement, copy, frame or mirror any part of the activateEV Services or Content, other than copying or framing on Subscriber’s own intranets or otherwise solely for Subscriber’s own internal business use and purposes;
xi. Access the Charging Station, any activateEV Application or the activateEV 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;”
xii. Use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the activateEV Services or Content or collect information about activateEV users for any unauthorized purpose;
xiii. Upload, transmit or introduce any Malicious Code to activateEV, the Charging Station or the activateEV Services;
xiv. Use any of the activateEV Services if Subscriber is a person barred from such use under the laws of the United States or of any other jurisdiction; or
xv. Use the activateEV 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 (D) is prohibited by applicable law, the Agreement or the Documentation.
i. 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 activateEV. Subscriber should exercise its own judgment in Subscriber’s use of the Content.
ii. 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.
iii. 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 (A) make such Content false, inaccurate or misleading; (B) falsify or delete any author attributions or labels of the origin or source of Content; or (C) indicate or suggest that the Charging Station locations provided as part of the Content are anything other than Charging Stations using the activateEV Services.
iv. Except as agreed in writing by activateEV, 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 activateEV Service.
6. SUBSCRIPTION FEES AND PAYMENT TERMS.
a. SUBSCRIPTION FEES. If Subscriber is invoiced for the Services, Subscriber shall pay all Subscription Fees within thirty (30) days of its receipt of activateEV’s invoice. All payments shall be made in U.S. Dollars by check, wire transfer, ACH payment system or other means approved by activateEV or if applicable, as described in activateEV’s credit card policy. Subscriber may not offset any amounts due to activateEV hereunder against amounts due to Subscriber under this Agreement or any other agreement. Subscription fees payable to activateEV do not include any Taxes imposed thereon, and Subscriber is responsible for all such Taxes. All such Taxes shall be set forth on the invoice provided by activateEV to Subscriber; provided that, activateEV’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.
b. 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 applicable law. Subscriber will reimburse activateEV for attorneys’ fees and other expenses reasonably incurred by activateEV in the collection of any late payments. If any amount owing by Subscriber under this Agreement is more than thirty (30) days overdue, activateEV may, without otherwise limiting its rights or remedies, (A) terminate this Agreement; (B) suspend the use by Subscriber of the activateEV Services until such amounts are paid in full; and/or (C) condition future activateEV Service renewals and other Subscriber purchases on payment terms other than those set forth herein; provided that activateEV 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
a. ACTIVATEEV Property. As between activateEV and Subscriber, activateEV retains and reserves all right, title, and interest (including all related Intellectual Property Rights) in and to the activateEV Property and any improvements thereto. No rights are granted to Subscriber in the activateEV Property hereunder except as expressly set forth in this Agreement.
b. SUBSCRIBER PROPERTY. As between activateEV 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 activateEV in the Subscriber Property hereunder except as expressly set forth in this Agreement.
c. LIMITED LICENSE TO SUBSCRIBER. activateEV hereby grants to Subscriber a royalty-free, non-assignable, non-transferable, and non-exclusive license to use the activateEV 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 activateEV Services as permitted herein.
d. LIMITED LICENSE TO ACTIVATEEV. Subscriber hereby grants to activateEV and JuiceBar 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 to provide the activateEV Services. JuiceBar and activateEV may utilize the Subscriber Marks to advertise that Subscriber is using the activateEV Services and/or JuiceBar Charging Stations. The foregoing license includes a perpetual and irrevocable right of activateEV and JuiceBar to reproduce, adapt, modify, translate, publicly perform, publicly display and distribute all Subscriber Content and Services submitted, posted or displayed by Subscriber in the activateEV Services, solely for the purpose of enabling activateEV and JuiceBar to operate, market and promote the activateEV Services, and to index and serve such Subscriber Content and Services as search results through activateEV Services. JuiceBar and activateEV shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable perpetual license to use or incorporate in the activateEV Services any suggestions, enhancement requests, recommendations or other feedback provided by Subscriber or Rights Grantees relating to the activateEV Services or Charging Stations.
e. ADDITIONAL TERMS REGARDING ACTIVATEEV MARKS
i. USE LIMITATIONS. Subscriber shall display the activateEV Marks in connection with Subscriber’s Charging Stations as required in this Agreement during the term of Subscriber’s SMART Plan. Subscriber shall not use any of the activateEV Marks for or with any products other than its Charging Stations. From time to time, activateEV may provide updated activateEV Mark usage guidelines on the activateEV Application or in the Documentation, and Subscriber shall thereafter comply with such updated guidelines. For any use of the activateEV Mark not authorized by such guidelines, or if no such guidelines are provided, then for each initial use of the activateEV Mark, Subscriber must obtain activateEV’s prior written consent, which shall not be unreasonably withheld or delayed, and after such consent is obtained, Subscriber may use the activateEV Mark in the approved manner. All use by Subscriber of the activateEV Marks (including any goodwill associated therewith) will inure to the benefit of activateEV.
ii. PROHIBITIONS. Subscriber shall not use or display any activateEV Mark (or any likeness of an activateEV Mark):
1. 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;
2. In any manner that (1) implies a relationship or affiliation with activateEV other than as described under the Agreement; (2) implies any sponsorship or endorsement by activateEV; or (3) can be reasonably interpreted to suggest that any Subscriber Content and Services has been authored by, or represents the views or opinions of activateEV or activateEV personnel;
3. In any manner intended to disparage activateEV, JuiceBar, or the activateEV Services, or in a manner that is misleading, defamatory, infringing, libelous, disparaging, obscene or is otherwise objectionable to activateEV;
4. In any manner that violates any law or regulation;
5. That is distorted or altered in any way (including squeezing, stretching, inverting, discoloring, etc.) from the original form provided by activateEV; or
6. On any Charging Station that, after ten (10) days’ written notice from activateEV, continues to malfunction or is otherwise improperly maintained in a manner that activateEV reasonably determines reflects poorly on activateEV or, if applicable, JuiceBar or is likely to cause harm to the activateEV or JuiceBar brands, reputation or business. If any Charging Station continues to malfunction or is otherwise improperly maintained as such, in addition to any other remedies available to it under this Agreement or under applicable law, activateEV shall have the right to have the Charging Station not discoverable or visible by the general public, including but not limited to activateEV account holders, on any interface (e.g., mobile application) that accesses the activateEV Services.
iii. NO REGISTRATION OF ACTIVATEEV MARKS. Subscriber shall not, directly or indirectly, register or apply for, or cause to be registered or applied for, any activateEV Marks or any patent, trademark, service mark, copyright, trade name, domain name or registered design that is substantially or confusingly similar to a activateEV Mark, patent, trademark, service mark, copyright, trade name, domain name or registered design of activateEV or that is licensed to, connected with or derived from confidential, material or proprietary information imparted to or licensed to Subscriber by activateEV. At no time will Subscriber challenge or assist others to challenge the activateEV Marks (except to the extent such restriction is prohibited by law) or the registration thereof by activateEV.
iv. REMOVAL OF ACTIVATEEV MARKS FROM SUBSCRIBER CHARGING STATIONS. If at any time Subscriber fails to comply with any of the prohibitions set forth in Section 7(e)(ii) or any restrictions set forth in Section 5(d), activateEV shall have the right, in addition to any other remedies available to it under this Agreement or under applicable law, upon five (5) days’ written notice to Subscriber, to itself or through a third-party representative, without notice to or additional permission from Subscriber, enter Subscriber’s premises for the purpose of removing or covering any or all activateEV Marks, which may include covering the Subscriber Charging Station in its entirety.
v. TERMINATION AND CESSATION OF USE OF ACTIVATEEV MARKS. Upon termination of this Agreement, Subscriber will immediately discontinue all use and display of all activateEV Marks.
8. LIMITATIONS OF LIABILITY.
a. DISCLAIMER OF WARRANTIES. THE ACTIVATEEV 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, ACTIVATEEV DOES NOT WARRANT THAT (A) SUBSCRIBER’S USE OF THE ACTIVATEEV 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 ACTIVATEEV SERVICES WILL BE ACCURATE AND RELIABLE; OR (C) ALL DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE ACTIVATEEV SERVICES WILL BE CORRECTED. ALL CONTENT OBTAINED THROUGH THE ACTIVATEEV 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.
b. 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 ACTIVATEEV 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 ACTIVATEEV SERVICES, THIS AGREEMENT, A GRANT OR RECEIPT OF RIGHTS OR OTHERWISE OR BASED ON ANY EXPRESSED, IMPLIEDOR CLAIMED WARRANTIES BY SUBSCRIBER NOT SPECIFICALLY SET FORTH IN THIS AGREEMENT.
c. ELECTRICAL, CELLULAR AND INTERNET SERVICE INTERRUPTIONS. Neither activateEV 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 the activateEV Services; (iii) interruptions attributable to unauthorized activateEV Service intrusions; (iv) interruptions in services provided by any Internet service provider not affiliated with activateEV; or (v) the inability of a Charging Station to access the activateEV Services 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.
d. LIMITATION OF LIABILITY. activateEV’s aggregate liability under this Agreement shall not exceed aggregate Subscription Fees paid by Subscriber to activateEV in the twelve (12) calendar months prior to the event giving rise to the liability.
e. CELLULAR CARRIER LIABILITY. IN ORDER TO DELIVER THE ACTIVATEEV SERVICES, ACTIVATEEV 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 ACTIVATEEV AND/OR JUICBAR 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/OR TO THE CHARGING STATION AND UNDERSTANDS THAT ANY SUCH NUMBER CAN BE CHANGED. SUBSCRIBER UNDERSTANDS THAT ACTIVATEEV 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 ACTIVATEEV SERVICES.
f. 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, ACTIVATEEV’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
a. TERM OF AGREEMENT. This Agreement shall become effective on the Effective Date and shall continue until the expiration of all of Subscriber’s SMART Plans.
b. SMART PLAN TERM. Each SMART Plan acquired by Subscriber shall commence as follows:
i. Each SMART Plan acquired for use with a new Charging Station will commence on ninety (90) days from the date the subscription plan is invoiced. Upon expiration of the original term, this Agreement will renew automatically for the successive term originally purchased at the list price applicable thereto, subject to increases 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 SMART Plan that has been automatically renewed, Subscriber may do so by providing activateEV thirty (30) days’ written notice of cancellation and activateEV 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.
ii. Notwithstanding the foregoing, there shall no pro-rata refunds allowed on automatic renewals for plans of multiple years. Renewals of SMART Plans will commence on the date of the expiration of the Subscription being renewed. Each Subscriber SMART Plan shall continue for the applicable duration thereof unless this Agreement is terminated earlier in accordance with its terms.
iii. If Subscriber has elected or is required, as the case may be, to pay by credit card as provided in this Agreement or if applicable, as described in activateEV’s credit card policy, the renewal will be charged to Subscriber’s payment method (credit card) on file, which may include any payment method automatically updated by Subscriber’s issuing bank. If Subscriber’s credit card is declined, invalid, or payment is not made by the issuer of Subscriber’s credit card on Subscriber’s Subscription Date, without further notice activateEV reserves the right to automatically recharge the payment method until payment is received, the payment method is updated, or the activateEV Service is discontinued for nonpayment.
c. TERMINATION BY ACTIVATEEV.
i. This Agreement may be immediately terminated by activateEV: (A) 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; (B) 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; (C) 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 activateEV; or (D) as otherwise explicitly provided in this Agreement. Regardless of whether Subscriber is then in breach, activateEV may, in its reasonable discretion, determine that it will not accept any renewal by Subscriber of its subscription to the activateEV Services. In such case, this Agreement shall terminate upon the later of the expiration of all of Subscriber’s subscriptions to the activateEV Services.
ii. activateEV may in its discretion suspend Subscriber’s continuing access to the activateEV 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 activateEV Services); or (C) providing the activateEV Services to Subscriber could create a security risk or material technical burden as reasonably determined by activateEV.
d. 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 activateEV 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. activateEV 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.
e. REFUND OR PAYMENT UPON TERMINATION. Upon any termination of this Agreement for cause by Subscriber pursuant to Section 9(d)(i) or by activateEV pursuant to Section 9.3(c)(i)(C), activateEV shall refund to Subscriber a pro-rata portion of any pre-paid Subscription Fees based upon the remaining SMART Plan term. Upon any termination for any other reason, Subscriber shall not be entitled to any refund of any Subscription Fees because 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 activateEV for the SMART Plan term in which the termination occurs or any prior SMART Plan term.
f. SURVIVAL. Those provisions dealing with the Intellectual Property Rights of activateEV, 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 this Agreement.
Subscriber hereby agrees to indemnify, defend and hold activateEV and JuiceBar, their respective 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 Rights Grantee by Subscriber) of the activateEV Services, the Charging Station or Subscriber Content and Services. Subscriber will cooperate as fully as reasonably required in the defense of any claim. activateEV reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by Subscriber.
a. AMENDMENT OR MODIFICATION. activateEV reserves the right to modify this Agreement from time to time. activateEV will provide notice of each such modification to Subscriber. Subscriber’s continued use of the activateEV’s Services following such notice will constitute an acceptance of the modified Agreement.
b. 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.
c. FORCE MAJEURE. Except with respect to payment obligations, neither activateEV 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 pandemic, 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.
d. GOVERNING LAW, JURISDICTION AND DISPUTE RESOLUTION. This Agreement shall be governed, construed, and enforced in accordance with the laws of the State of New York, without regard to its conflicts of law principles. Any disputes shall be settled by arbitration administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules. Judgment on an award may be entered in any court having jurisdiction. The parties expressly waive a right to trial by jury and consent to the entry of an award by the arbitrators. Each of the parties has indicated its approval to the terms and conditions of this Agreement by signing and dating a copy of this Agreement in the place indicated below by its duly authorized officer or representative and returning such copy to the other party.
e. NOTICE REGARDING CLAIMS TO REGULATORY COMPLIANCE MECHANISMS. The use of certain Charging Stations may be eligible to generate clean fuels credits, low-carbon fuel standard credits, renewable fuels credits, emissions reduction units, carbon offsets, allowances, renewable fuel and/or obligation certificates, or similar regulatory compliance instruments, (collectively, “Regulatory Compliance Mechanisms”), used to comply with applicable federal, state, provincial, international or regional emissions, low-carbon fuel, and/or renewable fuel compliance programs. JuiceBar, activateEV and Subscriber may be eligible to claim title to Regulatory Compliance Mechanisms, however, only one Party can claim title. Should Subscriber choose to claim regulatory title, assuming Subscriber may be eligible to do so, Subscriber must opt-in to the applicable program and fulfill all ongoing administrative and reporting obligations required of program participants, including recurring verification and/or auditing requirements. JuiceBar or activateEV intend to claim title to applicable Regulatory Compliance Mechanisms, assuming either of them may be eligible to do so; however, neither JuiceBar or activateEV will claim title to specific Regulatory Compliance Mechanisms that Subscriber has opted to claim. Subscriber agrees that it will provide activateEV with written notice of its intent to claim specific Regulatory Compliance Mechanisms within ten (10) days of the Effective Date. If Subscriber does not currently intend to claim regulatory title, but desires to do so at any time in the future, Subscriber may, by providing written notice to activateEV, elect to claim title to Regulatory Compliance Mechanisms resulting from the use of Charging Stations thirty (30) days or more after the date of such notice. Subscriber represents and warrants to activateEV that, in the absence of providing written notice, Subscriber will not claim any Regulatory Compliance Mechanisms and hereby designates that right to activateEV. All notices shall be provided by email to activateEV at firstname.lastname@example.org.
f. NOTICE REGARDING RIN DATA. For Subscriber’s located in the United States, either activateEV or JuiceBar will participate in an application to the U.S. Environmental Protection Agency (“EPA”) to permit vehicle charging data (“Charging Data”) collected by activateEV from centrally networked charging stations to be utilized in a process to generate Renewable Identification Numbers (“RIN)” under the Renewable Fuel Standard. Either activateEV or JuiceBar, as the case may be, 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 activateEV, activateEV or JuiceBar has the exclusive right to use the RIN Data for the purpose of RIN generation.
g. NOTICES. Other than the notices required in Sections 11(e), any notice required or permitted by this Agreement shall be sent (a) if by activateEV, via electronic mail to the address indicated by Subscriber in Subscriber’s activateEV Services account; or (b) if by Subscriber, via electronic mail to notification@activateEV.com.
h. INJUNCTIVE RELIEF. Subscriber acknowledges that damages for improper use of the activateEV Services may be irreparable; therefore, activateEV is entitled to seek equitable relief, including but not limited to preliminary injunction and injunction, in addition to all other remedies.
i. 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.
j. 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 activateEV (not to be unreasonably withheld). In the event of any purported assignment in breach of this Section, activateEV 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. activateEV may assign its rights and obligations under this Agreement.
k. NO AGENCY OR PARTNERSHIP. activateEV, in the performance of this Agreement, is an independent contractor. In performing its obligations under this Agreement, activateEV shall maintain complete control over its employees, its subcontractors and its operations. No partnership, joint venture or agency relationship is intended by activateEV 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.
l. 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 SMART Plan, the number of Charging Stations for which such SMART Plan is ordered, the term of such SMART 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.
m. COPYRIGHT POLICIES. It is activateEV’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.
n. THIRD PARTY RESOURCES. The activateEV Services may include hyperlinks to other websites or resources. activateEV has no control over any web sites or resources that are provided by companies or persons other than activateEV. Subscriber acknowledges and agrees that activateEV is not responsible for the availability of any such web sites or resources, activateEV does not endorse any advertising, products or other materials on or available from such web sites or resources, and activateEV 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.
o. 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.
USER BILLING TERMS
This Exhibit sets forth certain additional terms and conditions (“User Billing Terms”) pursuant to which Subscriber may charge Users fees for the use of Subscriber’s Charging Stations. To charge such fees, Subscriber must subscribe to a SMART Plan that includes activateEV’s management, collection and/or processing services related to such fees (“Billing Services”).
1. ADDITIONAL DEFINITIONS. The following additional defined terms shall apply to these User Billing Terms:
“activateEV Fees” means a fee, currently equal to ten percent (10%) of Session Fees, charged for a particular Session. activateEV Fees are charged by activateEV in exchange for its collection and processing of Session Fees on behalf of Subscriber. activateEV will provide Subscriber with thirty (30) days prior written notice (which may include, without limitation, notice provided by activateEV through its regular newsletter to Subscriber) of any increase in activateEV Fees.
“Net Session Fees” means the total amount of Session Fees collected on behalf of the Subscriber by activateEV, less activateEV Fees and Taxes, if any, required by law to be collected by activateEV 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.
“Session” or “Charging Session” means the period during which a User uses Subscriber’s Charging Station to charge their 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 such User has terminated such access.
“Session Fees” means the fees set by the Subscriber for a Charging Session, inclusive of any applicable Taxes.
2. USER-BILLING SERVICE FOR CHARGING STATIONS
a. SESSION FEES. Subscriber shall have sole authority to determine and set Session 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 activateEV is not responsible for informing Subscriber of applicable laws or changes thereto, and activateEV 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.
b. DEDUCTIONS FROM SESSION FEES. In exchange for activateEV collecting Session Fees on behalf of the Subscriber, the Subscriber hereby authorizes activateEV to deduct from all Session Fees collected: (i) activateEV Fees and (ii) to the extent required by Section 3 of this Exhibit, applicable Taxes.
c. PAYMENT TO SUBSCRIBER OF NET SESSION FEES. Unless otherwise agreed to in writing between activateEV and the Subscriber, activateEV will remit Net Session Fees to Subscriber, not less than quarterly, provided that the amount due to Subscriber hereunder is at least fifty U.S. dollars ($50.00). Notwithstanding, the foregoing, activateEV 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 electronic payment. To facilitate such payments, Subscriber agrees to maintain Subscriber’s current bank information, into Subscriber’s activateEV Services (customer facing portal), to enable electronic remittance of the Net Session Fees. If the Subscriber requests payment in a manner other than electronic payment (e.g., check or wire transfer), Subscriber agrees to bear the reasonable costs related to such request.
If applicable, Subscriber is responsible for setting pricing on a Tax-inclusive basis. activateEV is not responsible for remittance of any Taxes on behalf of Subscriber and Subscriber shall be responsible to report and remit all applicable Taxes assessable based on Charging Sessions whether state, federal, provincial, or otherwise; provided that activateEV is solely responsible for all Taxes assessable based on activateEV’s income, property and employees. Where activateEV 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 activateEV from Session Fees, unless Subscriber has otherwise provided activateEV with a valid tax or regulatory exemption certificate or authorization from the appropriate taxing or regulatory authority.
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 activateEV 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.
“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.
“API Documentation” means all Documentation containing instructions, restrictions or guidelines regarding the APIs or the use thereof, as amended and/or supplemented by activateEV from time to time.
“activateEV Site Terms” means the Terms and Conditions displayed on activateEV’s website, governing use of activateEV’s website and the activateEV Services by visitors who are not SMART Plan subscribers.
USE. Subscriber may
use the APIs as and to the extent permitted by Subscriber’s SMART Plan
and the API Documentation, subject to the terms and conditions of the Agreement.
a. AVAILABLE APIs AND FUNCTION CALLS. The APIs give Subscriber access to information through a set of function calls. The APIs and API function calls made available by activateEV from time to time (and the Content available through such APIs and function calls) will be limited by Subscriber’s SMART Plan, and Subscriber’s particular SMART Plan may not include all APIs and function calls then available from activateEV.
b. 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:
i. All Charging Station locations provided to Subscriber as part of the Content shall be clearly identified by Subscriber in Subscriber’s API Implementation as activateEV Services 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 activateEV or JuiceBar.
ii. 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.
iii. Content provided to Subscriber through the APIs may contain the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of activateEV’s business partners and/or other third-party rights holders of Content indexed by activateEV, which may not be deleted or altered in any manner.
iv. Subscriber shall not: (A) 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 ActivateEV Service; (B) hide or mask from activateEV the identity of Subscriber’s service utilizing the APIs, including by failing to follow the identification conventions listed in the API Documentation; or (D) defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
c. REQUIRED INFORMATION. Subscriber must:
i. Display to all viewers and users of Subscriber’s API Implementation the link to the activateEV Site Terms and Conditions as presented through the activateEV Services or described in the Documentation;
ii. 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 activateEV Site Terms;
iv. Comply with all applicable laws designed to protect the privacy and legal rights of users of Subscriber’s API Implementation.
d. REPORTING. Subscriber must implement reporting mechanisms, if any, that activateEV requires in the API Documentation.
3. ACTIVATEEV BRANDING REQUIREMENTS AND RESTRICTIONS.
a. MANDATORY ACTIVATEEV BRANDING. Subject to Section 3(b) below and the restrictions on use of activateEV Marks set forth in the Agreement, Subscriber agrees that each page comprising Subscriber’s API Implementation will include an activateEV logo and will state that Subscriber’s application or website is provided, in part, through the activateEV Services.
b. RESTRICTIONS. Subscriber shall not:
i. Display any activateEV 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
ii. Display any activateEV 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.
TERMS REGARDING GRANTING OF RIGHTS
This Exhibit sets forth certain additional terms and conditions applicable to the Subscriber and Rights Grantees regarding the granting of Rights (“Rights Terms”). The Rights Terms are part of the Agreement and all use of the activateEV Services permitted pursuant to the Rights Terms remains subject to the Agreement.
1. TERMS. This Section governs Subscriber’s granting of Rights to a Rights Grantee.
a. LIMITED RIGHTS. A Rights Grantee’s right to access and use the activateEV Services for, and on behalf of, the Subscriber is limited to the specific Rights granted by the Subscriber to such Rights Grantee. Such Rights may be limited according to the SMART 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 more than those provided to it through the SMART Plan(s) to which it has subscribed.
b. RESPONSIBILITY FOR AUTHORIZED USER. All use of the activateEV 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.
c. NO AGREEMENT. Subscriber acknowledges and agrees that the activateEV Services merely enable the Subscriber to extend Rights to Rights Grantees. The mere extension of such Rights by the Subscriber to a Rights Grantee does not constitute an agreement between The Subscriber and the Rights Grantee with respect to the granted Rights or the exercise of such Rights by the Rights Grantee. activateEV does not, either through the terms of the Agreement or the provision of the activateEV Services undertake to provide any such agreement. It is the responsibility of the Subscriber and the Rights Grantee to enter into such an agreement on terms mutually acceptable to each. activateEV expressly undertakes no liability with respect to such an agreement and The Subscriber fully and unconditionally releases activateEV from any liability arising out of such an agreement. Further the Subscriber agrees to indemnify and hold activateEV, its officers, directors, agents, affiliates, distribution partners, licensors and suppliers harmless from and against any and all Claims suffered or incurred by such indemnified parties resulting from or arising out of such agreement.