HomeMy WebLinkAboutZECO Systems, Inc. - Professional Services Agreement - 3/2/2020Please
CityClerk return&Flnance this copyDeptto:
.
715 Mulberry St.
Waterloo, IA 50703
SERVICES AND SUBSCRIPTION AGREEMENT
Effective Date:
As of 2020
Greenlots: ZECO SYSTEMS, INC. a Delaware
corporation
Subscriber: a
Greenlots Address and Contact Information:
Address: 767 S Alameda, Suite 200, Los Angeles, CA
90021
Attn:
Phone: 888-751-8560
Email: info@greenlots.com
Company's Address and Contact Information:
Address: c/o
Phone:
Email:
Fax:
THIS SERVICES AND SUBSCRIPTION AGREEMENT (this "Agreement") is entered into as of this _ day of_ 2020
by and between Greenlots and Subscriber. As used herein, Greenlots and Subscriber are each a "party" or collectively,
"parties" to this Agreement. Capitalized terms used but not otherwise defined in the Special Terms and Conditions stated below
shall have the meanings ascribed to such terms in the Standard Terms and Conditions ("Standard Terms") portion of this
Agreement.
WHEREAS,
(A) Greenlots is a global manufacturer of tumkey charging networks for electric vehicles, including software and services,
and trades commercially under the name "Greenlots". In connection with the operation of the Greenlots business, Greenlots
also owns the "Greenlots SKY" software system with the features described in Annexure A (the "Licensed Software).
(B) Subscriber is an owner and/or operator of Charging Stations and wishes to register its Charging Stations (as
defined below) on the Greenlots Charging Network and to avail itself of the Greenlots Charging Network Services (as defined
below) in respect of such Charging Stations on the terms and subject to the conditions set out in this Agreement.
(C) To enable Subscriber to use the Greenlots Charging Network Services, Greenlots shall grant a non -transferable
and non-exclusive license of the Licensed Software to Subscriber on the terms and subject to the conditions set out in this
Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt of which is acknowledged the parties agree to
the following:
Special Terms and Conditions
I. GREENLOTS RESPONSIBILITIES
a. Greenlots Responsibilities. Subject to the terms and conditions of this Agreement, Greenlots agrees to (i)
operate, maintain, administer and support the Greenlots Charging Network and (ii) provide the purchased Services to
Subscriber and its Networked Charging Stations.
b. License of Licensed Software. In connection with its obligations under (I)(a) Greenlots hereby grants to
Subscriber, and Subscriber hereby accepts, a non -transferable and non-exclusive right and license to use the Licensed
Software in the Territory for the duration of the Term, together all rights, title and interests past, present and future, in and
to the Licensed Software for the purposes of participating in the Greenlots Charging Network and using the Greenlots
Services.
c. Limitations. Greenlots shall not be responsible for, and makes no representation or warranty with respect
to, the following: (i) continued and uninterrupted availability of sufficient electrical power to any of Subscriber's Charging
Stations and consequently any failure or interruption to the Greenlots Charging Network and the Greenlots Services; (ii)
continued and uninterrupted availability of any wireless or cellular communications network or internet service provider
network services necessary for the continued operation by Greenlots of the Greenlots Charging Network and/or the
provision of the Greenlots Services; (iii) any Charging Stations that are not Networked Charging Stations; and/or (iv) any
failure, malfunction or degradation of the Charging Station hardware and its embedded software.
1
d. Non -Exclusive Basis. The participation of Subscriber and its Networked Charging Stations and the provision
of the Greenlots Services to Subscriber shall be on a non-exclusive basis and Greenlots shall, at all times and at any time,
be entitled to permit similar participation and provide similar services to any other party, whether such party is a competitor
of Subscriber or otherwise, without restriction on such terms as Greenlots may at its sole discretion determine without
reference to Subscriber.
II. SUBSCRIBER'S RESPONSIBILITIES. Subscriber shall be responsible for: (a) notifying Greenlots of any new
Charging Stations to be registered on the Greenlots Charging Network as Networked Charging Stations (which shall
include providing Greenlots with specifications and descriptions in relation to each such Charging Station); (b) operating
and maintaining the Networked Charging Stations in a safe manner and in compliance with all applicable laws and
contractual obligations; (c) providing Greenlots with advance written notice of the relocation or decommissioning of any
Networked Charging Stations or of Networked Charging Stations which are non -operational or not intended to be replaced
or repaired by Subscriber.
III. SERVICES.
a. Collection Services. Where Subscriber levies charges on Customers and Greenlots is engaged to provide
management, collection and/or processing services for such charges:
i. Subscriber shall have sole authority to determine and set in real-time the Session Fees (which shall
include all applicable Taxes and Regulatory Charges, each as defined below) applicable to Subscriber's
Networked Charging Stations.
ii. In exchange for Greenlots collecting Session Fees on behalf of Subscriber, Subscriber hereby
authorizes Greenlots to deduct from all Session Fees collected (collectively, the "Deductions"): (1) a Collection
and Processing Fee; and (2) to the extent required, applicable Taxes and Regulatory Charges. Greenlots shall
remit the equivalent of the balance of the Session Fees net of the Deductions to Subscriber not more than 10
business days after the end of each calendar month in which such Session Fees were collected to such account
designated in writing by Subscriber.
iii. Collection and Processing Fees do not include any taxes, levies, duties or similar govemmental
assessments of any nature, including, but not limited to, value added, sales, local, city, state or federal taxes
("Taxes") or any fees or other assessments levied or imposed by any governmental regulatory agency
("Regulatory Charges"). Subscriber shall be responsible for the payment of all Taxes and Regulatory Charges
incurred in connection with any Session Fees; provided that, Greenlots is solely responsible for all Taxes and
Regulatory Charges assessable based on Greenlots' income, property and employees. Where Greenlots is
required by law to collect and/or remit the Taxes or Regulatory Charges for which Subscriber is responsible, the
appropriate amount shall be invoiced to Subscriber and deducted by Greenlots from Session Fees, unless
Subscriber has otherwise provided Greenlots with a valid tax or regulatory exemption certificate or authorization
from the appropriate taxing or regulatory authority.
b. Provision of Assistance, Training and Maintenance Services. Greenlots shall supply training, technical
assistance and maintenance with respect to the Licensed Software to Subscriber, as set out in Annexure A and elsewhere
in this Agreement (collectively, the "Services").
c. Service Levels. Greenlots shall provide services and support according to the following terms:
i. Phone support for payment and technical issues shall be provided to Customers 24 hours a day,
365 days a year;
ii. Greenlots shall ensure that scheduled system downtime occurs only between the hours of 9PM to
5AM Pacific Standard Time to avoid disruption to Subscriber and Customers;
iii. Greenlots shall ensure that unscheduled downtime be responded to immediately and every
reasonable effort be made to restore service; and
With respect to the Services and Service Levels, Subscriber acknowledges that some downtime may be
attributed to Charging Station hardware and while Greenlots will promptly report and log the problem to the
associated party; the duration of downtime in this instance is out of Greenlots' control.
d. Non-Transferabilitv. All Greenlots Services shall be non -transferable; provided that Greenlots Services
subscribed for in relation to a Networked Charging Station that is to be de -commissioned may be transferred to a
Networked Charging Station that is purchased by Subscriber to replace such de -commissioned Networked Charging
Station.
2
IV. FEES.
a. Fees. In consideration of the Services provided hereunder, Subscriber shall pay Greenlots the following
fees (collectively, the "Fees"):
i. MidAmerican Energy will be paying the license fees for the Licensed Software ("License Fees")
for the first three years and potentially beyond. Greenlots License fees are $650 annually per DC Fast
Charger in United States Dollars, such license fees to be payable in advance for the Initial Term with payment
to be made upon registration and activation of a Networked Charging Station on the Greenlots Charging
Network. No pro -rating shall be available for any Networked Charging Stations which are decommissioned
during the year; and,
ii. upon Subscriber commencing the levy of charging fees on Customers, a Collection and
Processing Fee of 5.0% + $0.50 shall be paid by Subscriber to Greenlots for each Charging Session used by a
Customer where a Session Fee applies, payment of which shall be set off against Session Fees collected by
Greenlots, or in case of insufficient Session Fees, billed separately.
b. Adjustments to Pricing. Greenlots undertakes that there shall be no increase in the License Fees payable
for each Networked Charging Station during the Initial Term. The parties agree that Greenlots shall be entitled to adjust
the Collection and Processing Fee at its sole discretion in the event of any increase in processing fees charged by
payment processing partners responsible for the collection of Customers' payments.
c. Payment of License Fees. Subscriber agrees that:
i. Subscriber shall pay all License Fees within thirty (30) days of its receipt of an invoice with
respect thereto. For this agreement MidAmerican will be responsible for the license fees for the first three years
and possibly beyond. Except as otherwise specified herein, all Fees shall be quoted in and payable in US
Dollars.
ii. If any invoiced Fees are not received by Greenlots by the due date, then such outstanding
amount: (1) may accrue late interest at the rate of one and one-half percent (1.5%) of the outstanding balance
per month, or the maximum rate permitted by law, whichever is lower ("Late Payment Interest Rate"), from the
date such payment was due until the date on which such payment is received by Greenlots in cleared funds,
and (2) in the event Subscriber has not paid Fees within 30 days of the due date, Greenlots may, at its sole
discretion, impose additional conditions in connection with future renewals of any Greenlots Services and
acceptance of purchase orders for additional Greenlots Services other than those set forth herein.
iii. If any amount owing by Subscriber under this Agreement is more than 30 days overdue,
Greenlots may, without otherwise limiting Greenlots' rights or remedies available under law, terminate this
Agreement, and/or suspend the use by Subscriber of the Greenlots Services until such amounts are paid in full.
V. TERM; TERMINATION.
a. Initial Term. This Agreement shall be valid for a period equivalent for the license fees paid commencing from
the Effective Date, during which the access to the Greenlots Charging Network, the License and the subscription for the
Greenlots Services shall be valid (`Initial Term").
b. Additional Terms: 30 days from expiration of the License Agreement, Subscriber to submit payment to
Accounts Receivable for fees and charges incurred through the expiration date. If the renewal fee is not
paid within [30] days interest will accrue at a rate of 1.5% per month, compounded, until paid. If the
License Agreement is not renewed within [60] days of expiration, the services will be canceled.
c. Greenlots shall notify End User/Customer, (i) 60 days before and (ii) 30 days before the renewal/
expiration date of the Greenlots Software License Agreement. Such notices will be sent simultaneously to
End User/Customer via email.
d. Early Termination for Cause by Greenlots.
i. Greenlots may terminate the license granted to Subscriber hereunder and terminate this
Agreement immediately upon 5 Business Days' prior written notice to Subscriber, if:
1. An Insolvency Event has occurred in relation to Subscriber;
2. Subscriber breaches any material provision of this Agreement and fails to cure such
breach within 30 days following Subscriber's receipt of written notice thereof from Greenlots; or
3
3. Subscriber fails to timely pay Greenlots all fees due and payable to Greenlots in
consideration of the Services provided hereunder within thirty (30) days of the expiration date of the
Payment Agreement.
ii. Upon any termination of this Agreement pursuant to d.i. above, subject to the additional terms and
conditions hereof, all rights in the Licensed Software granted to Subscriber hereunder shall automatically revert
to Greenlots, and Subscriber shall have no further rights in, and shall immediately cease all use of, the Licensed
Software. Subscriber shall also promptly return or destroy all documents (including copies), diskettes, tapes and
other material (in whatsoever medium) held by Subscriber in relation to the Licensed Software to Greenlots upon
written demand therefor by Greenlots. The failure of Greenlots to make any such demand initially shall not
operate as a waiver by Greenlots of this provision.
e. Early Termination for Cause by Subscriber. Subscriber may terminate this Agreement immediately upon 5
Business Days' prior written notice to Greenlots, If Greenlots breaches any material provision of this Agreement and fails
to cure such breach within thirty (30) days following Greenlots' receipt of written notice thereof from Subscriber.
VI. STANDARD TERMS: CONFLICTS. The Standard Terms that follow the signatures below are by this reference
incorporated herein and made a part of this Agreement. Without limiting the generality of the foregoing, and notwithstanding
anything to the contrary set forth in this Agreement, all of each party's obligations hereunder, including without limitation, each
party's obligation to render services, grant any licenses, or to pay fees, are subject to the Standard Terms. In the event of any
inconsistency or conflict between the provisions of the Standard Terms and the Special Terms, the latter shall control.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first above written.
SUBSCRIBER
a
By:
Printed Name: W Ar ,
Title:
1)LC(43e'
Date: z45
GREENLOTS
Zeco Systems, Inc.,
a Delaware corporation
By:
Printed Name:
Title:
Date:
STANDARD TERMS
1. Definitions.
(a) Definitions. As used in this Agreement, the
following terms have the following meanings:
"Business Day" means a day (other than a Saturday,
Sunday or public holiday) on which banks in the United
States of America are open for general banking business.
"Charging Port" means any charging connector that is able
to charge an electric vehicle, regardless of plug type or
standard. For purposes of license fee calculation, for
Charging Stations with more than a single Charging Port,
the Charging Port is only counted if it is able to charge an
electric vehicle concurrently with another Charging Port on
the same Charging Station.
"Charging Session" means a session during which a
Customer is using Subscriber's Networked Charging
Station to charge his or her electric vehicle and which lasts
for a continuous period of time commencing when a
Customer has accessed such Networked Charging Station
and ending when such Customer has terminated such
access.
4
"Charging Station" means an electric vehicle charging
station owned or leased by Subscriber.
"Collection and Processing Fees" means the fees charged
by Greenlots for the management, collection and
processing of Session Fees on behalf of Subscriber and
the remittance of any balance to Subscriber.
"Customers" means drivers who avail themselves of
charging and other services from any Networked Charging
Station.
"Greenlots Services" means, collectively, the various
software service offerings made available for subscription
from time to time by Greenlots.
"Greenlots Intellectual Property" means collectively, the
Licensed Software, the Greenlots Marks, the Greenlots
Charging Network and the Greenlots Services.
"Greenlots Marks" means the various trademarks, service
marks, names and designations used in connection with
the Greenlots products and services, including, without
limitation, the mark "Greenlots".
"Insolvency Event" shall be deemed to have occurred, in
relation to any person or entity, when such person or entity
files, or consents to the filing against it of, a petition for
relief under any bankruptcy or insolvency laws, makes an
assignment for the benefit of creditors or consents to the
appointment of a receiver, liquidator, assignee, custodian,
trustee or other official with similar powers over a
substantial part of its property; or a court having jurisdiction
over such person or entity or any of the property of such
person or entity shall enter a decree or order for relief in
respect thereof in any involuntary case under any
bankruptcy or insolvency law, or shall appoint a receiver,
liquidator, assignee, custodian, trustee or official with
similar powers over a substantial part of the property of
such person, or shall order the winding -up, liquidation or
rehabilitation of the affairs of such, and such order of
decree shall continue in effect for a period of sixty (60)
consecutive days.
"Intellectual Property Rights" shall mean all intellectual and
industrial property rights of whatever nature anywhere in
the world and all rights pertaining thereto, whether
recorded or registered in any manner, or otherwise,
including without prejudice to the foregoing generality,
patents, trademarks, registered designs (including
applications for any of the same), copyright, design rights,
semi -conductor topography rights, database and software
rights, mask works, trade secrets, know-how, business
names, trade names, brand names, domain names and all
other legal rights anywhere in the world protecting such
intangible property.
"Networked Charging Stations" means any Charging
Stations that have been registered and activated on the
Greenlots Charging Network. Each charge connector or
charge port is considered as one Charging Station.
"Session Fees" means the fees set by Subscriber for a
Charging Session, including any applicable Taxes and/or
Regulatory Charges.
"Subscribed Services" means any Services subscribed for
by Subscriber.
"Subscriber Data" means, collectively, all data contributed
directly by Subscriber and which is owned by Subscriber,
or licensed directly to Subscriber by any party other than
Greenlots, prior to the inclusion of such data in the
Licensed Software.
"Term" means (i) the Initial Term, and (ii) each Additional
Term, unless this Agreement is terminated earlier pursuant
to Article V of the Special Terms.
"Territory" means the territory where Subscriber has active
operations.
2. Ownership of Intellectual Property
2,1 Validity and Ownership. Subscriber
acknowledges and admits the validity of Greenlots'
ownership, of all Intellectual Property Rights in relation to
5
the Greenlots Intellectual Property, and agrees that it will
not, directly or indirectly, challenge or contest the validity
of the Greenlots Intellectual Property, or any registrations
thereof and/or applications therefore in any jurisdiction, or
the right, title and interest of Greenlots therein and thereto,
nor will it claim or register any interest in the Greenlots
Intellectual Property in any jurisdiction, other than the
rights expressly granted hereunder.
2.2 Property of Greenlots. Subscriber acknowledges
that (i) as between the parties, all Intellectual Property
Rights in the Greenlots Intellectual Property are and will
remain the exclusive property of Greenlots and (ii) as
between the parties, all uses of the Greenlots Intellectual
Property, except for its Use by Subscriber pursuant to this
Agreement, shall inure solely to the benefit of Greenlots.
Subscriber shall not at any time do or suffer to be done any
act or thing that will in any way impair the rights of
Greenlots in and to the Greenlots Intellectual Property.
Nothing in this Agreement grants, nor shall Subscriber
acquire hereby, any right, title or interest in or to the
Greenlots Intellectual Property or any underlying or third -
party Intellectual Property Rights inhering therein, or any
goodwill associated therewith, other than those rights
expressly granted hereunder. This Agreement shall not
affect Greenlots' right to enjoin or obtain relief against any
acts by third parties or trademark or patent infringement or
unfair competition, or any other action that Greenlots may
take to protect Greenlots' Intellectual Property Rights in the
Territory.
2.3 Property of Subscriber. The parties agree that all
Subscriber Data is and will remain the exclusive property
of Subscriber and will inure solely to the benefit of
Subscriber. Greenlots shall be granted such access to
Subscriber Data: (a) as may be necessary to enable
Greenlots to perform its obligations hereunder, (b) in order
to respond to service or technical problems which may
arise from time to time and at any time; and/or (c)
otherwise at Subscriber's discretion. All data collected by
Greenlots in connection with the operation of the Greenlots
Charging Network shall be jointly owned by Greenlots and
Subscriber, with both Parties retaining independent rights
to use the data. Greenlots shall also have rights to use the
data for uses including (i) system analytics and
performance; (ii) anonymized data for marketing, research,
and creation of white paper; (iii) product development and
enhancement; and (iv) analytics-driven offerings for each
of the value chain constituents.
2.4 License; Data Privacy. Greenlots shall have a
royalty -free, worldwide, transferable, sub -licensable,
irrevocable perpetual license to use or incorporate in the
Greenlots Charging Network and/or the Greenlots
Services any suggestions, enhancement requests,
recommendations, improvements or other feedback
provided by Subscriber and/or Subscriber Authorized
Users relating to any and all of the Greenlots Charging
Network and the Greenlots Services. Subscriber
represents and warrants that it has reviewed Greenlots'
privacy policy located at https://greenlots.com/privacv-
policv-2 ("Privacy Policy") and by Subscriber's signature
below, acknowledges that Subscriber consents to, is
bound by and subject to all terms of the Privacy Policy, as
of the date of this Agreement and as amended hereafter,
including with respect to all Subscriber Data.
3. No Assignment or Sublicenses
3.1 No Assignment. Neither party may assign any of
its rights or obligations hereunder, whether by operation of
law or otherwise, without the express written consent of the
other party. Notwithstanding the foregoing either party may
assign this agreement together will all rights and
obligations hereunder, without consent of the other party,
in connection with a merger, acquisition, corporate
reorganization, or sale of any or substantially all of its
assets provided the assignee agrees in writing to comply
with all applicable provisions of the Agreement, including
protecting Confidential Information. This Agreement shall
not be assignable by Subscriber to any direct or indirect
competitor of Greenlots engaging in developing electric
vehicle charging hardware and/or software and any
attempt to assign without such consent shall be void.
3.2 No Sub -Licensing. Except as otherwise set forth
herein, the License, the Greenlots Services and the rights
granted to Subscriber under this Agreement shall not be
sub -licensed by Subscriber without the prior written
authorization of Greenlots.
4. Limitation of Liability.
4.1 LIMITATION OF GREENLOTS' LIABILITY.
EXCEPT AS EXPRESSLY SET FORTH HEREIN,
ACCESS TO THE GREENLOTS CHARGING NETWORK,
THE LICENSE AND THE GREENLOTS SERVICES ARE
PROVIDED BY GREENLOTS WITHOUT ANY
WARRANTY, EXPRESS OR IMPLIED, INCLUDING, BUT
NOT LIMITED TO, ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. IN NO EVENT WILL GREENLOTS BE
LIABLE TO SUBSCRIBER OR ANY THIRD PARTY FOR
ANY INDIRECT, INCIDENTAL, SPECIAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES
RESULTING FROM THE PARTICIPATION OF
SUBSCRIBER IN THE GREENLOTS CHARGING
NETWORK, THE EXERCISE OF THE LICENSE, THE
USE OF THE LICENSED SOFTWARE OR THE
GREENLOTS SERVICES, OR OTHERWISE ARISING
OUT OF THIS AGREEMENT, WHETHER IN RELATION
TO ANY BREACH OF ANY REPRESENTATIONS AND
WARRANTIES EVEN IF ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. NOTWITHSTANDING THE
FOREGOING, IN NO EVENT WILL GREENLOTS'
AGGREGATE LIABILITY TO SUBSCRIBER PURSUANT
TO THIS AGREEMENT EXCEED THE TOTAL SUM OF
ANY FEES RECEIVED BY GREENLOTS IN THE
TWELVE CALENDAR MONTHS IMMEDIATELY PRIOR
TO THE DATE ANY SUCH CLAIM IS MADE. FOR THE
AVOIDANCE OF DOUBT, GREENLOTS SHALL OWE NO
LIABILITY TO SUBSCRIBER OR ANY CONTRACTUAL
COUNTERPARTIES OF SUBSCRIBER FOR ANY
BREACH BY SUBSCRIBER OF ITS CONTRACTUAL
OBLIGATIONS TO SUCH COUNTERPARTIES
INCLUDING BUT NOT LIMITED TO, ANY FAILURE BY
SUBSCRIBER TO COMPLY WITH ITS SERVICE LEVEL
AGREEMENTS UNLESS SUCH LIABILITY ARISESASA
RESULT OF FRAUD OR GROSS NEGLIGENCE ON THE
6
PART OF GREENLOTS. SUBSCRIBER SHALL BEAR
FULL AND COMPLETE RESPONSIBILITY FOR
SUBSCRIBER'S LEGAL OBLIGATIONS TO THIRD
PARTIES AND NEITHER GREENLOTS NOR ANY
GREENLOTS AFFILIATE (INCLUDING SHELL GROUP)
SHALL INDEMNIFY, DEFEND OR HOLD SUBSCRIBER
HARMLESS AGAINST ANY CONSEQUENCES,
DAMAGES, INJURY OR DEATH OF ANY THIRD
PARTY..
4.2 Limits. Where the limitation of liability in Section
4.1 is prohibited or restricted under applicable law, then the
liability of Greenlots under such circumstances shall be
limited to the maximum extent permitted under such
applicable law.
5. Subscriber's Representations and Warranties.
Subscriber represents and warrants to Greenlots that: (a)
it has the power and authority to enter into and be bound
by this Agreement; (b) all Networked Charging Stations
and any electric vehicle charging products used with such
Networked Charging Stations have been properly installed
and are operated in a duly authorized manner; (c) the
electrical usage to be consumed by Subscriber's
Networked 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 (d)
it has not installed or attached Networked 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.
6. Subscriber's Covenants. Subscriber further
undertakes to Greenlots that: (i) it will not remove, conceal
or cover the Greenlots Marks or any other markings,
labels, legends, trademarks, or trade names installed or
placed on the Networked Charging Stations or any
peripheral equipment for use in connection with the
Networked Charging Stations; (ii) Subscriber shall comply
with, and shall have responsibility for and cause its
employees and agents accessing or using the Greenlots
Charging Network to comply with, all of the rules,
regulations and policies of Greenlots as may from time to
time be notified by Greenlots to Subscriber (and the
display or availability of any such rules, regulations and
policies (and any variation or changes thereto) on any
portal or service to which Subscriber has access, shall
constitute due notice to Subscriber, its employees and
agents); (iii) Subscriber shall be responsible for using the
Greenlots Services in compliance with applicable laws and
this Agreement, and in particular, shall: (A) use
commercially reasonable efforts to prevent unauthorized
access to any Greenlots Services, (B) not sell, resell,
license, rent, lease, transfer or grant access to the
Greenlots Services to a third party, (C) not interfere with or
disrupt the integrity of the Greenlots Charging Network, the
Greenlots Services or any data contained therein, and (D)
not attempt to gain unauthorized access to the Greenlots
Charging Network or the Greenlots Services or their
related systems or networks.
7. Compliance with Shell Business Principles, Anti -Bribery
and Anti -Money Laundering Standards.
7.1. (a) Subscriber acknowledges that Greenlots is a
subsidiary of Shell Group, and it has actual knowledge of
(i) the Shell General Business Principles, at
www.shell.com/sgbp and Shell's Supplier Principles, at
www.shell.com/suppliers; (ii) Shell's Code of Conduct, at
http://www.shell.com/codeofconduct/; and (iii) Shell's
Global Helpline, at
http://www.shell.com/home/globalhelpline/. (b) Subscriber
agrees that Subscriber will adhere to and notify of
violations of the principles contained in the Shell General
Business Principles and Shell Supplier Principles (or
where Subscriber has adopted equivalent principles, to
those equivalent principles) in all its dealings with or on
behalf of Greenlots, in connection with this Agreement and
related matters. (c) Subscriber shall ensure staff that
perform services on behalf of Subscriber hereunder shall
behave in a manner that is consistent with the Shell Code
of Conduct.
7.2. Anti -Bribery and Corruption
(a) Subscriber represents that, in connection with this
Agreement and related matters: (i) it is knowledgeable
about Anti -Corruption Laws (as defined herein after)
applicable to the performance hereunder and will comply
with those laws; (ii) Subscriber has not made, offered,
authorized, or accepted, and will not make, offer,
authorize, or accept, any payment, gift, promise, or other
advantage, whether directly or through any other Person,
to or for the use or benefit of any Govemment Official or
any other Person where that payment, gift, promise, or
other advantage would: (A) comprise a facilitation
payment; or (B) violate the relevant Anti -Corruption Laws.
(b) Subscriber will immediately notify Greenlots if
Subscriber receives or becomes aware of any matter that
is prohibited by the preceding paragraph. As used here,
"Anti -Corruption Laws" means the United States Foreign
Corrupt Practices Act of 1977, the United Kingdom Bribery
Act 2010, and all other applicable laws that prohibit money
laundering, or otherwise dealing in the proceeds of crime,
or the bribery of, or the providing of unlawful gratuities,
facilitation payments, or other benefits to, any government
official or any other person.
(c) Subscriber will maintain adequate intemal controls and
procedures to ensure compliance with Anti -Corruption
Laws, including the ability to demonstrate compliance
through adequate and accurate recording of transactions
in its books and records.
(d) Greenlots will have the right to confirm compliance with
Anti -Corruption Laws and record keeping by audit.
Subscriber will keep books and records available for audit
for a period as directed by Greenlots for at least as long as
the period for retention of records for financial and
performance audit.
(e) Subscriber will indemnity Greenlots and: (a) its
subcontractors, (b) any affiliate of Greenlots; and (c) any
director, officer, employee, other person or Agency
Personnel employed by or acting for and on behalf of
Greenlots, its contractors or the affiliates of Greenlots and
its contractors (the foregoing, "Greenlots Group"). A
reference to Greenlots Group includes a reference to each
of its members severally. for any liabilities arising out of
Subscriber's breach of Anti -Corruption Laws or any related
undertakings under this Article.
8. Confidentiality. Each party agrees to keep confidential
the terms of this Agreement and all information,
documents and materials, whether printed or oral, relating
7
to this Agreement, the parties and the transactions
contemplated hereunder ("Confidential Information")
confidential and not to disclose such Confidential
Information except:
(a) with the prior written consent of the other party;
(b) as may be required by applicable laws or by the
rules of any stock exchange or other authority by which a
party may be bound (in which case the disclosing party
shall immediately notify the other party thereof);
(c) to its professional advisers, employees, officers
or other representatives;
(d) to any advisors and professional services
providers which may be appointed by a party to give effect
to the obligations of such party under this Agreement; and
9. Notices. All notices, requests, demands and
other communications given by any of the parties
hereunder shall be in writing and shall be given only by
personal delivery, registered mail or courier service or sent
by facsimile transmission or electronic mail to the
addresses and facsimile numbers set forth in the
introductory paragraph of this Agreement, or to such other
address or facsimile number as the parties may from time
to time notify the others in writing. Any such
communication shall be deemed duly given in the case of
personal delivery and courier service upon delivery and
receipt of written acknowledgement thereof, in the case of
registered mail ten days after posting, in the case of
facsimile transmission or electronic mail upon transmission
and receipt of a satisfactory transmission transcript;
provided that if such day is not a Business Day or such
time not a normal business hour then delivery shall be
deemed to have occurred on the following Business Day.
10. Goveminq Law; Venue. This Agreement shall be
governed by, and construed and enforced in accordance
with the laws of the state of Delaware, without giving effect
to any principles of conflict of laws. Any action or arbitration
arising from this Agreement related thereto shall be
commenced and maintained only in the State of Delaware.
Each of the parties hereto consents to the jurisdiction and
venue of the courts located there.
11. Dispute Resolution. Any dispute arising from this
Agreement or related thereto shall be resolved by binding
arbitration as provided by the rules of ADR Services, Inc.
("ADR") and in the office of ADR, located in Wilmington,
Delaware. The parties each expressly waive the right to a
jury trial, and agree that the arbitration award shall be final
and binding on the parties.
12. Fees. Each party shall be responsible for paying
its own expenses incurred in any proceeding to compel
arbitration or to confirm or enforce an arbitral award or any
resulting judgment, including attomey's fees. Each party
shall bear its own expenses, including attomey's fees,
incurred during arbitration.
13. MISCELLANEOUS
13.1 No Partnership. Nothing in this Agreement shall
create a partnership or establish a relationship of principal
and agent or any other fiduciary relationship between or
among any of the parties.
13.2 Remedy. No remedy conferred by any of the
provisions of this Agreement is intended to be exclusive of
any other remedy available at law, in equity, by statute or
otherwise. Each and every other remedy shall be
cumulative and shall be in addition to every other remedy
given hereunder or now or hereafter existing at law in
equity, by statute or otherwise. The election by any party
to pursue one or more of such remedies shall not constitute
a waiver by such party of the right to pursue any other
available remedy. The parties agree that monetary
damages may not be a sufficient remedy for the damage
which would accrue to a party by reason of failure by any
other party to perform certain of the obligations hereunder.
Any such party shall, therefore, be entitled to seek
injunctive relief, including specific performance, to enforce
such obligations.
13.3 Costs and Expenses. The parties agree that
unless expressly provided otherwise in this Agreement,
each of the parties shall bear its own respective costs and
expenses, legal or otherwise, reasonably incurred in
relation to preparation, negotiation and execution of this
Agreement and all ancillary documents.
13.4 Further Assurance. Each of the parties shall, and
shall use its reasonable endeavors to procure that any
necessary third parties shall, execute and deliver to the
other party such other instruments and documents and
take such other action as may be required to carry out,
evidence and confirm the provisions of this Agreement.
13.5 Variations. No purported variations of this
Agreement shall be effective unless made in writing by all
the parties.
13.6 Severability of Provisions. If any term or
provision in this Agreement shall be held to be illegal or
unenforceable, in whole or in part, under any enactment or
rule of law, such term or provision or part shall, to that
extent, be deemed not to form part of this Agreement but
the enforceability of the remainder of this Agreement shall
not be affected.
13.7 No Waiver. A party's failure to insist on strict
performance of any provision of this Agreement shall not
constitute a waiver thereof or of any right or remedy for
breach of a like or different nature. No waiver shall be
effective unless made in writing and signed by a duly
authorized officer of the party granting such waiver.
13.8 Counterparts. This Agreement may be entered
into in any number of counterparts and by the parties on
separate counterparts, each of which when executed and
delivered shall be an original, but all the counterparts shall
together constitute one and the same instrument.
13.9 Force Maleure. If either party hereto is materially
hampered from performing hereunder by reason of any
law, natural disaster, labor controversy, war or any similar
event beyond a party's reasonable control, failure to
perform shall not be deemed a breach of or default under
this Agreement and neither party shall be liable to the other
therefore.
13.10 Interpretation. References to Recitals, Sections
and Annexures are, unless otherwise stated, to recitals
and sections of, and annexures to, this Agreement.
References to any enactment shall be construed as
references to (a) any enactment which that enactment has
directly or indirectly replaced (whether with or without
notification), and (b) that enactment as re-enacted,
replaced or modified from time to time, whether before, on
or after the date hereof.
13.11 Entire Agreement. This Agreement sets forth the
entire agreement and understanding between the parties
in connection with the license granted hereunder and the
arrangements described herein and supersedes all prior
oral and written agreements, memoranda, understandings
and undertakings between the parties.
13.12 Successors. This Agreement shall be bihding
upon and inure to the benefit of the parties hereto and their
respective heirs, successors and permitted assigns.
END OF STANDARD TERMS
8
ANNEXURE A
LICENSED SOFTWARE
The Licensed Software consists of an integrated Internet -based platform (SKY) that has bi-directional communication with
Networked Charging Stations. The platform is made up of:
1. A back -end database
2. A front-end user interface for the Subscriber
3. A front-end user interface for the Customer
4. A mobile phone application for the Customer that is supported on Android and iOS operating systems. Support for additional
operating systems may be added later at Greenlots' sole discretion
5. A payment collection and settlement system
6. A data collection and reporting system
7. A call center for Customer technical and payment support
Together, the Licensed Software performs the following functions:
1. Provides a directory of Charging Stations belonging to the Subscriber, including all pertinent information such as address,
serial number, manufacturer, model, charging type and price for Customers, if applicable
2. Reports the status of Charging Stations whether they are in -use, faulted, available or temporarily unknown
3. Enables the Subscriber to set a price for Customers to use these Charging Stations
4. Provides a payment method for Customers to pay for use of these Charging Stations
5. Provides a payment processor which complies with Payment Card Industry ("PCI") Data Security Standard DSS") of Visa and
MasterCard.
6. Collects usage and charging data from these Charging Stations and provides them to the Subscriber in either CSV or graphical
format
7. Provides first level technical support to Customers and routes them to the Charging Station manufacturer for escalation
8. Provides downloadable usage reports on a daily, weekly, monthly or annual basis consisting of individual charge session data
(user ID, station ID, start time, end time, total duration, total kWh and total revenue)
9. Provides a monthly statement report detailing total revenue collected from Session Fees and total Greenlots Fees applicable
SERVICES AND SERVICE LEVELS
Greenlots shall provide services and support according to the following terms:
1. Phone support for payment and technical issues shall be provided to Customers 24 hours a day, 365 days a year
2. Greenlots shall ensure that scheduled system downtime occurs only between the hours of 9PM to 5AM Pacific Standard
Time to avoid disruption to the Subscriber and Customers.
3. Greenlots shall ensure that unscheduled downtime be responded to immediately and every reasonable effort be made to
restore service
4. The Subscriber acknowledges that some downtime may be attributed to Charging Station hardware and while Greenlots will
promptly report and log the problem to the associated party; the duration of downtime in this instance is out of Greenlots'
control
9