Terms of Service
THESE TERMS OF SERVICE ("TERMS"), TOGETHER WITH THE PURCHASE ORDER, ARE A LEGAL AGREEMENT BETWEEN THE "CLIENT" IDENTIFIED IN SUCH PURCHASE ORDER AND OK2 Solutions, LLC, A FLORIDA LIMITED LIABILITY COMPANY D/B/A OK2Charge("OK2Charge" ). BY EXECUTING A PURCHASE ORDER THAT INCLUDES THESE TERMS BY REFERENCE, CLIENT ACKNOWLEDGES THAT CLIENT HAS REVIEWED AND ACCEPTS THESE TERMS. IF YOU ARE AGREEING TO THESE TERMS AS AN INDIVIDUAL "CLIENT" REFERS TO YOU INDIVIDUALLY. IF YOU ARE AGREEING TO THESE TERMS AS A REPRESENTATIVE OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AND "CLIENT" REFERS TO THAT ENTITY AND ALL THE USERS SPECIFIED IN THE PURCHASE ORDER. IF CLIENT DOES NOT AGREE WITH ALL OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THE SERVICES. OK2Charge MAY MAKE CHANGES TO THE SERVICES AT ANY TIME. IN ADDITION, OK2Charge MAY MAKE CHANGES TO THESE TERMS AT ANY TIME, AND WILL PROVIDE NOTICE TO CLIENT OF SUCH CHANGES BY POSTING A MESSAGE ON SITE OR SITES USED TO ACCESS THE SERVICES NOTIFYING CLIENT OF THE UPDATES TO THESE TERMS AND REQUESTING THAT CLIENT REVIEW SUCH UPDATED TERMS. CLIENT's CONTINUED USE OF THE SERVICES AFTER SUCH CHANGES HAVE BEEN POSTED WILL BE CONSIDERED AS CLIENT'S CONSENT TO AND ACCEPTANCE OF THE REVISED TERMS.
1.1 "Agreement" means these Terms and the Purchase Order, collectively.
1.2 "Activation Date" means the date on which a Charger is first installed and activated to operate with the Services via an Internet connection.
1.3 "Annual Software and Service Fee" or "Annual Fee" means the annual fee for each Charger itemized in the Purchase Order as an "Annual Software and Service Fee". The Annual Software and Service Fee shall be paid and calculated in accordance with Subsection 7.1 below.
1.4 ."Chargers" means electrical vehicle chargers provided or sold by OK2Charge to Client.
1.5 "Client Data" means all data submitted, stored, posted, displayed, or otherwise transmitted by or on behalf of Client or any User and received and analyzed by the Services and including, without limitation, Occupant Data.
1.6 "Client System" means Client's internal website(s), servers and other equipment and software used in the conduct of Client's business.
1.7 "Documentation" means the online user instructions and help files made available by OK2Charge for use with the Services, as may be updated from time to time by OK2Charge.
1.8 "Fees" means the Annual Fee, Monthly Fee and Transaction Fees.
1.9 "Intellectual Property Rights" means all intellectual property rights or similar proprietary rights, including (a) patent rights and utility models, (b) copyrights and database rights, (c) trademarks, trade names, domain names and trade dress and the goodwill associated therewith, (d) trade secrets, (e) mask works, and (f) industrial design rights; in each case, including any registrations of, applications to register, and renewals and extensions of, any of the foregoing in any jurisdiction in the world.
1.10 "Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
1.11 "Monthly Software and Service Fee" or "Monthly Fee" means the monthly fee for each Charger itemized in the Purchase Order as a "Monthly Software and Service Fee", equal to (i) a fixed dollar amount per month for such Charger (as set forth in the Purchase Order) or (ii) an amount per month for such Charger equal to the product of (a) the number of Occupied Nights of the Property on which such Charger is located, times (b) a fixed dollar amount per month (as set forth in the Purchase Order). The Monthly Software and Service Fee shall be paid and calculated in accordance with Subsection 7.2 below.
1.12 "Occupant Data" means all data submitted, stored, posted, displayed, or otherwise transmitted by or on behalf of Client or any User and received and analyzed by the Services and regarding occupants or prospective occupants of Properties, Property owners, or customers or prospective customers of Client.
1.13 "Occupied Nights" means the number of nights a Property has been reserved for occupancy or otherwise occupied by guests during the relevant monthly period as set forth in Subsection 7.2.
1.14 "Paid Charger Order" means a Purchase Order under OK2Charge's Paid Charger Program.
1.15 "Property" means any real property or improvements managed or owned by Client at which a Charger has been installed and activated to work to operate with the Services via an Internet connection.
1.16 "Purchase Order" means such ordering documents for the Services that are executed hereunder by Client which have been accepted by OK2Charge, from time to time, including modifications, supplements and addend thereto. Purchase Orders shall be deemed incorporated herein and may be a Zero Down Per Charger Order or a Paid Charger Order, as the case may be.
1.17 "services" means OK2Charge's services and platform allowing the remote control and authentication of Chargers using OK2Charge's proprietary software ("software") that may be integrated to interoperate with certain Third Party Offerings or used as a standalone solution.
1.18 "shared Revenue" means the gross transaction proceeds actually received by OK2Charge from Client, Property guests or any other party, through the payment integration feature of the Services, in connection with the use of the Chargers or the Services. Shared Revenue does not include Monthly Fees, Annual Fees, or proceeds (or shipping expenses and sales taxes) from the sale of Chargers.
1.19 "software" has the meaning set forth in Section 1.16.
1.20 "subscription Term" means, with respect to each Charger, a term commencing upon the Activation Date of such Charger and continuing thereafter until terminated in accordance with Section 13. For the avoidance of doubt, the reference to "subscription Term" means as it applies and is determined with respect to each Charger.
1.21 "Third Party Offerings" means certain software or services delivered or performed by third parties that are required for the operation of the Services and any associated offline products provided by third parties that interoperate with the Services.
1.22 "Transaction Fees" means fees equal to the percentage of Shared Revenues set forth in the Purchase Order as "Transaction Fees". The Transaction Fees shall be paid and calculated in accordance with Subsection 7.3 below.
1.23 "Users" means Client's employees, consultants, contractors, agents and third parties with whom Client may transact business and (a) for whom access to the Services during the Subscription Term has been purchased pursuant to a Purchase Order, (b) who are authorized by Client to access and use the Services and (c) who have been supplied user identifications and passwords for such purpose by Client.
1.24 "Zero Down Order" means a Purchase Order under OK2Charge's Zero Down Per Charger Program.
2. ORDERS; LICENSES; AND RESTRICTIONS.
2.1 Orders. Subject to the terms and conditions contained in these Terms, Client may purchase subscriptions for Users to access and use the Services pursuant to Purchase Orders. User subscriptions are for designated Users only and cannot be shared or used by more than one User, but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services. Client agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by OK2Charge regarding any future functionality or features. If there is any inconsistency between a Purchase Order and these Terms, the Purchase Order shall control.
2.2 Access and Use License. OK2Charge hereby grants to Client a limited, non-exclusive, non transferable right for its Users to access and use the Services for each Charger during the Subscription Term of such Charger, subject to the terms and conditions of, and compliance with, this Agreement and the Documentation. Such use of the Services shall be solely for Client's internal business purposes and not for the benefit of any other person or entity. Client's use of the Services may be subject to certain limitations, such as, for example, limits on storage capacity for Client Data. Any such limitations will be specified either in the Purchase Order or in the Documentation.
2.3 Restrictions. Client shall not, directly or indirectly, and Client shall not permit any User or third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Services, the Software or Chargers; (b) tinker with, modify, translate, or create derivative works based on any element of the Services, the Software, the Chargers, or any related Documentation; (c) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Services, the Chargers or the Software (except to allow use of the Chargers in accordance with these Terms); (d) use the Services or Software for timesharing purposes or otherwise for the benefit of any person or entity other than for the benefit of Client and Users; (e) remove any proprietary notices, any logos, private labeling or other labels, or any serial mode numbers or other information from the Chargers or Documentation; (f) use the Services, Chargers and Software for any purpose other than its intended purpose; (g) interfere with or disrupt the integrity or performance of the Services, Chargers or Software; or (h) attempt to gain unauthorized access to the Services, Chargers or Software or their related systems or networks.
2.4 Reservation of Rights. Except as expressly granted in these Terms, there are no other licenses granted to Client, express, implied or by way of estoppel. All rights not granted in these Terms are reserved by OK2Charge.
3. THIRD PARTY OFFERINGS.
3.1 Use of Third Party Offerings. OK2Charge or third parties may from time to time make Third Party Offerings available to Client in connection with Client's use of the Services. Without limiting the generality of Section 8.2, OK2Charge does not warrant or support any of the Third Party Offerings, whether or not they are designated by OK2Charge as "certified" or otherwise, except as specified in a Purchase Order. Client acknowledges that OK2Charge may allow providers of Third Party Offerings to access Client Data or Other Information (as defined in Section 11.2) as required for the interoperation and support of such Third Party Offerings with the Services. OK2Charge shall not be responsible for any disclosure, modification or deletion of Client Data resulting from any such access by the providers of Third Party Offerings.
3.2 Integration with Third Party Offerings. The services may contain features designed to interoperate with Third Party Offerings (e.g., Streamline, Track, Barefoot, VRBO, HomeAway, Airbnb). To use such features, Client may be required to obtain access to such Third Party Offerings from their providers. Should Client contract directly with a provider of any Third Party Offering, any such relationship, and any exchange of data between Client and any provider of a Third Party Offering, is solely between Client and the applicable provider of the Third Party Offering. If the provider of any of the Third Party Offerings ceases to make any of such Third Party Offerings available for interoperation with the corresponding Services features or Software on reasonable terms, OK2Charge may cease providing such features without entitling Client to any refund, credit, or other compensation and/or OK2Charge may exercise its right of termination under Subsection 13.1.4. Client shall at all times be solely responsible for ensuring that its use of the OK2Charge Services and Client's interactions with Third Party Offerings providers are compliant with the terms and conditions governing the use of and access to such Third Party Offerings.
3.3 Third Party Hosting. OK2Charge may use the services of one or more third parties to host all or part of the Services. OK2Charge will pass-through any warranties to the extent that OK2Charge receives any from it then current third-party hosting provider that it can provide to Client. Client agrees to comply with any acceptable use policies and other terms of any third-party hosting provider that are provided or otherwise made available to Client from time to time.
4. PASSWORDS; SECURITY.
4.1 Passwords. OK2Charge will issue Client an initial administrator user login and password and Client may create user logins and passwords for each of its Users. Client shall be, and shall ensure that each of its Users are, responsible for maintaining the confidentiality of all user logins and passwords and for ensuring that each user login and password is used only by the User lo which ii was issued. Client is solely responsible for any and all access and use of the Services that occurs using logins and passwords issued to Client by OK2Charge or issued to Users by Client. Client shall restrict its Users from sharing passwords. Client agrees to immediately notify OK2Charge of any unauthorized use of any account or login and password issued to Clients Users, or any other breach of security known to Client. OK2Charge shall have no liability for any loss or damage arising from Client's failure to comply with the terms set forth in this Section 4.1.
4.2 No Circumvention of Security. Neither Client nor any User may circumvent or otherwise interfere with any user authentication or security of the Services. Client will immediately notify OK2Charge of any breach, or attempted breach, of security known to Client.
4.3 Security. OK2Charge will use commercially reasonable efforts to maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Client Data, except as required by law. Notwithstanding the foregoing, Client acknowledges that, notwithstanding any security precautions deployed by OK2Charge, the use of, or connection to, the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Services and Client Data. OK2Charge cannot and does not guaranty the privacy, security, integrity or authenticity of any information transmitted over or stored in any system connected to or accessible via the Internet or otherwise or that any such security precautions will be adequate or sufficient.
5. CLIENT OBLIGATIONS.
5.1 Chargers. All Chargers will be installed and activated, promptly by Client upon delivery, to operate with the Services via an Internet connection. Such installation shall be performed by a licensed electrician or other appropriately licensed professional engaged by Client, and all such installations shall be at Client's sole risk, cost and expense and in compliance with any and all laws, rules, regulations, statutes, ordinances, and building and electrical codes.
5.2 Client System. Client is responsible for (a) obtaining, deploying and maintaining Client System, and all computer hardware, software, modems, routers and other communications equipment necessary for Client and their respective Users to access and use the Services via the Internet, (b) contracting with third party ISP, telecommunications and other service providers to access and use the Services via the Internet and (c) paying all third party fees and access charges incurred in connection with the foregoing. Except as specifically set forth in this Agreement, OK2Charge shall not be responsible for supplying any hardware, software or other equipment to Client.
5.3 Acceptable Use Policy. Client shall be solely responsible for its actions and the actions of its Users while using the Services. Client acknowledges and agrees: (a) to abide by all local, state, national, and international laws, statutes, rules and regulations applicable to Client's use of the Services, including without limitation the provision and storage of Client Data, (b) not to send or store data on or to the Services which violates the rights of any individual or entity established in any jurisdiction, (c) not to upload in any way any information or content that contain Malicious Code or data that may damage the operation of the Services or another's computer or mobile device, (d) not to upload in any way any data regarding an individual's financial or economic identity, sexual orientation, religious beliefs, medical or physical identity, including any information comprised of either "Protected Health Information" subject to and defined by the Health Insurance Portability and Accountability Act, or an individual's first name and last name, or first initial and last name, in combination with any one or more of the following data elements that relate to such individual: Social Security number, driver's license number or state issued identification card number, financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to an individual's financial account, (e) not to use the Services for illegal, fraudulent, unethical or inappropriate purposes, (f) not to interfere or disrupt networks connected to the Services or interfere with other ability to access or use the Services, (g) not to distribute, promote or transmit through the Services any unlawful, harmful, obscene, pornographic or otherwise objectionable material of any kind or nature, (h) not to transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability, (i) not to interfere with another customer's use and enjoyment of the Services or another person or entity's use and enjoyment of similar services, (j) not to use the Services in any manner that impairs the Services, including without limitation the servers and networks on which the Services are provided, (k) to comply with all regulations, policies and procedures of networks connected to the Service and OK2Charge's service providers, and (l) to use the Services only in accordance with the Documentation. Client acknowledges and agrees that OK2Charge neither endorses the contents of any Client communications, Client Data, or Other Information nor assumes any responsibility for any offensive material contained therein, any infringement of third party Intellectual Property Rights arising therefrom or any crime facilitated thereby. OK2Charge may remove any violating content posted or stored using the Services or transmitted through the Services, without notice to Client. Notwithstanding the foregoing, OK2Charge does not guarantee, and does not and is not obligated to verify, authenticate, monitor or edit Client Data, Other Information, or any other information or data input into or stored in the Services for completeness, integrity, quality, accuracy or otherwise. Client shall be responsible and liable for the completeness, integrity, quality and accuracy of Client Data and Other Information input into the Services. OK2Charge reserves the right to amend, alter, or modify Client's conduct requirements as set forth in these Terms at any time. OK2Charge may deliver notice of such updated requirements to Client via e-mail or through the Services. Client's continued access to and use of the Services following issuance of such updated Client requirements shall constitute Client's acceptance thereof.
5.4 Accuracy of Client's Contact Information; Email Notices. Client agrees to provide accurate, current and complete information as necessary for OK2Charge to communicate with Client from time to time regarding the Services, issue invoices or accept payment, or contact Client for other account-related purposes. Client agrees to keep any online account information current and inform OK2Charge of any changes in Client's legal business name, address, email address and phone number. Client agrees to accept emails from OK2Charge at the e-mail addresses specified by its Users for login purposes. In addition, Client agrees that OK2Charge may rely and act on all information and instructions provided to OK2Charge by Users from the above-specified e-mail address.
5.5 Temporary Suspension. OK2Charge may temporarily suspend Client's and its Users access to the Services in the event that either Client any of their Users is engaged in, or OK2Charge in good faith suspects Client or any of its Users is engaged in, any unauthorized conduct (including, but not limited to any violation of this Agreement). OK2Charge will attempt to contact Client prior to or contemporaneously with such suspension; provided, however, that OK2Charge's exercise of the suspension rights herein shall not be conditioned upon Client's receipt of any notification. A suspension may take effect for Client's entire account and Client understands that such suspension would therefore include User sub-accounts. Client agrees that OK2Charge shall not be liable to Client, any of its Users, or any other third party if OK2Charge exercises its suspension rights as permitted by this Section 5.5. Upon determining that Client has ceased the unauthorized conduct leading to the temporary suspension to OK2Charge's reasonable satisfaction, OK2Charge shall reinstate Client's and their respective Users access and use of the Services. Notwithstanding anything in this Section 5.5 to the contrary, OK2Charge's suspension of access to the Services is in addition to any other remedies that OK2Charge may have under these Terms or otherwise, including but not limited to termination of these Terms for cause. Additionally, if there are repeated incidences of suspension, regardless of the same or different cause and even if the cause or conduct is ultimately cured or corrected, OK2Charge may , in its reasonable discretion, determine that such circumstances, taken together, constitute a material breach.
5.6 Evaluations. At OK2Charge's request, Client will provide OK2Charge with written or oral report(s) of the results of Client's evaluation of the Services, including, but not limited to, a report of any errors that Client has discovered in the Services.
5.7 Client's Customers. Client shall reasonably promote, to its customers and occupants and prospective occupants of Properties, the use of Chargers and inform such customers (and occupants and prospective occupants) that OK2Charge may contact them to offer use of Chargers at a Property. Client represents and warrants to OK2Charge that the sharing with OK2Charge of any and all Client Data does not violate or breach any contract, license, agreement, statute, regulation, law or order.
6. AVAILABILITY. Subject to the terms and conditions of these Terms, OK2Charge will use commercially reasonable efforts to make the Services available with minimal downtime 24 hours a day, 7 days a week; provided, however, that the following are excepted from availability commitments: (a) planned downtime (with regard to which OK2Charge will use commercially reasonable efforts to provide at least 24 hours advance notice and routine maintenance times as otherwise specified by OK2Charge, or (b) any unavailability caused by circumstances beyond OK2Charge's reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, Internet service provider failures or delays, or the unavailability or modification by third parties of Third Party Offerings. Certain enhancements to the Services made generally available at no cost to all subscribing customers during the applicable Subscription Term will be made available to Client at no additional charge. However, the availability of some new enhancements to the Services may require the payment of additional fees, and OK2Charge will determine at its sole discretion whether access to any other such new enhancements will require an additional fee. Unless OK2Charge requires Client to agree to additional terms in connection with new features or modules, these Terms will apply to, and the Services includes, any enhancements, updates, upgrades and new modules to the Services subsequently provided by OK2Charge to Client hereunder.
7. FEES AND PAYMENT.
7.1 Annual Service and Software Fee. If Client has subscribed to Services under the Paid Charger Program, an Annual Fee shall be due and payable for each Charger, commencing on the Activation Date and continuing on the same day of each successive year throughout the Subscription Term. Each payment of the Annual Fee shall be due in full on each such anniversary date throughout the Subscription Term and shall be non-refundable and, except as set forth above in this Subsection 7.1, shall not be subject to credit or proration or refund for any reason.
7.2 Monthly Service and Software Fee. If a Client has subscribed to Services under the Zero Down Per Charger Program, a Monthly Fee shall be due and payable for each Charger, commencing on the first day of the calendar month immediately following the Activation Date and continuing on the same day of each successive calendar month throughout the Subscription Term. In the event that the Monthly Fee is a variable amount, as described in clause (ii) of Section 1.11, then the relevant period for calculation of the number of Occupied Nights shall be the calendar month immediately preceding the date such Monthly Fee is due. In the event the Subscription Term shall expire or terminate on any date other than the first day of a calendar month, then a prorated Monthly Fee shall be due upon such expiration or termination. Each such payment shall be due in full on each such monthly date throughout the Subscription Term (or upon expiration or termination thereof as provided above), shall be non-refundable and, except as set forth above in this Subsection 7.2, shall not be subject to proration or refund for any reason.
7.3 Transaction Fees. OK2Charge shall be paid, and OK2Charge shall retain, Transaction Fees out of any and all Shared Revenue as and when Shared Revenue is received by OK2Charge. Transaction Fees shall be fully-earned upon receipt of Shared Revenue by OK2Charge and shall not be subject to any credit, proration or refund. The balance of any Shared Revenue, after receipt by OK2Charge of the Transaction Fees, shall be remitted to Client on or before the fifteenth (15th) day of the calendar month following the month during which such Shared Revenue was received by OK2Charge. Client shall deliver a current W-9 to OK2Charge at all times, and OK2Charge shall report income to Client on IRS form 1099 for the portion of all Shared Revenue paid to Client. OK2Charge may setoff against Shared Revenue for any past due Fees, Refunds, or any other amounts due or payable to OK2Charge under this Agreement.
7.4 Taxes, Shipment, etc. Unless otherwise specified in writing by OK2Charge, all prices are F.O.B. Destination (Delivery Duty Unpaid), provided that shipment to any destination outside the Continental United States shall be F.O.B Shipping Point (Delivery Duty Unpaid). All prices are subject to any additions that may be necessary to cover any tax or charge now existing or hereafter imposed by any federal, state, municipal, regional, international or other governmental or other authority upon products or services herein described, or upon any feature of this transaction, including but not limited to, sales tax, customs or duties, and value added tax (and any other similar or equivalent taxes, duties, fees and levies). All prices are in United States Dollars, and all amounts under this Agreement are payable in United States Dollars only. After the placing of any Chargers in the possession of the carrier at the point of origin, the risk of damage to said Chargers shall be borne by Client. OK2Charge shall attempt to meet any completion and/or shipment date specified, but in no event shall OK2Charge otherwise be responsible or liable for failure to produce, ship or deliver by such date, and time shall not be of the essence in respect thereto; nor shall OK2Charge be liable to Client or any third party for indirect or consequential damages due to delays in the production, completion, shipment or delivery of goods whether or not due to causes within OK2Charge's control.
7.5 Price Changes. The pricing under each Purchase Order during the term shall be the same as that stated on the Purchase Order unless OK2Charge has given Client written notice of a pricing increase at least fifteen (15) days prior to such change, in which case the pricing increase shall be effective upon the expiration of such fifteen (15) day period. OK2Charge may increase pricing by up to 5% annually without notification.
8. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
8.1 Mutual Representations and Warranties. Each party represents, warrants and covenants that: (a) it has the full power and authority to enter into these Terms and to perform its obligations hereunder, without the need for any consents, approvals or immunities not yet obtained (and, as to Client, such warranty includes Client's authority, license and permission, from the Property owner or otherwise, to use the Services and install Chargers at each Property); and (b) its acceptance of and performance under these Terms shall not breach any oral or written agreement with any third party or any obligation owed by it to any third party to keep any information or materials in confidence or in trust.
8.2 Disclaimer of Warranties. THE WARRANTIES SET FORTH IN THIS SECTION 8, THE SERVICE, SOFTWARE AND THIRD-PARTY OFFERINGS ARE PROVIDED ON AN AS-IS BASIS. CLIENT's USE OF THE SERVICE AND THIRD-PARTY OFFERINGS IS AT ITS OWN RISK. OK2Charge DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS, STATUTORY AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, QUALITY, SUITABILITY, OPERABILITY, CONDITION, SYSTEM INTEGRATION, NON-INTERFERENCE, WORKMANSHIP, TRUTH, ACCURACY (OF DATA OR ANY OTHER INFORMATION OR CONTENT), ABSENCE OF DEFECTS, WHETHER LATENT OR PATENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE (COLLECTIVELY AND INDIVIDUALLY, "ANY AND ALL WARRANTIES"). ANY WARRANTIES MADE BY OK2Charge ARE FOR THE BENEFIT OF CLIENT ONLY AND NOT FOR THE BENEFIT OF ANY THIRD PARTY. ANY MATERIALS PROVIDED THROUGH THE SERVICE ARE LICENSED AND NOT SOLD.
OK2Charge DOES NOT WARRANT THAT: (A) THE USE OF THE SERVICE OR SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SERVICE WILL MEET CLIENT's REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY INFORMATION OR OTHER MATERIAL OBTAINED BY CLIENT THROUGH THE SERVICE WILL MEET CLIENT's REQUIREMENTS OR EXPECTATIONS; (E) THE SERVICE WILL BE ERROR-FREE OR THAT ERRORS OR DEFECTS IN THE SERVICE WILL BE CORRECTED; OR (F) THE SERVER(S) THAT MAKE THE SERVICE OR SOFTWARE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND SOFTWARE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. OK2Charge IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM ANY OF THE FOREGOING.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING. CLIENT UNDERSTANDS AND AGREES THAT THE CHARGERS ARE MANUFACTURED BY A THIRD PARTY MANUFACTURER AND THAT THIRD PARTY OFFERINGS ARE PROVIDED BY THIRD PARTIES, AND NEITHER OF THE FOREGOING ARE MANUFACTURED, PROVIDED OR SERVICED BY OK2Charge. OK2Charge DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY WITH RESPECT TO THE CHARGERS OR THIRD PARTY OFFERINGS AND FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT THERETO. ANY SHIPMENT OF CHARGERS BY OK2Charge TO CLIENT OR ANY OTHER PARTY IS STRICTLY PERFORMED AS AN ACCOMMODATION TO CLIENT AND SUCH DISCLAIMERS SHALL APPLY REGARDLESS OF WHETHER THE CHARGERS ARE SHIPPED DIRECTLY BY THE MANUFACTURER, OR BY OR ON BEHALF OF OK2Charge, AND WHETHER OR NOT THE CHARGERS ARE PRIVATE LABELLED OR OTHERWISE BEAR THE NAME, LOGOS, TRADE NAMES OR TRADEMARKS OF OK2Charge OR ITS AFFILIATES.
8.3 Subject to the foregoing provisions of this Section 8, OK2Charge shall use reasonable efforts to seek replacement or repair of defective Chargers from the manufacturer if and to the extent of coverage under any manufacturer's warranty and provided that all costs not covered by any such warranty, and all other costs, shall be borne by Client. Chargers not returned to OK2Charge pursuant to OK2Charge's return policy, or Chargers misused, abused, damaged, lost or stolen will be charged to Client and Client expressly agrees to pay OK2Charge for any replacement cost incurred by OK2Charge for such misused, abused, damaged, lost or stolen Chargers.
9. INDEMNIFICATION AND INSURANCE. Client shall defend OK2Charge and its officers, directors, members, managers, representatives and employees ("OK2Charge Indemnified Parties") from and against any and all claims, suits, proceedings, liabilities, damages, costs (including attorneys fees) and losses directly or indirectly arising from, caused by or relating to: (a) Client's use of the Services or the Software or Hardware, except if and only to the extent caused by OK2Charge's willful misconduct, (b) the use by any party, person or entity of any Charger(s) including, without limitation, any accident, damage, loss, injury or death directly or indirectly arising from, caused by or relating thereto, (c) the use by the Client or any other party, person or entity of the Third Party Offerings, (d) a claim or threat that Client Data, the Client System or any Third Party Offerings (or the exercise by OK2Charge of the rights granted herein with respect thereto) infringes, misappropriates or violates any third party's Intellectual Property Rights or (e) Client's breach of these Terms or a Purchase Order or the use or alleged use of the Services or Software other than as permitted under this Agreement.
Client shall acquire and maintain insurance, as reasonably requested by OK2Charge from time to time, covering OK2Charge and the OK2Charge Indemnified Parties and naming OK2Charge as an additional insured. Promptly upon any such request by OK2Charge, Client shall provide OK2Charge with certificates of insurance evidencing such insurance coverage, and each certificate shall indicate that the coverage represented thereby shall not be canceled, terminated, materially changed or not be renewed until at least 30 days prior written notice has been given to OK2Charge and Client.
10. CONFIDENTIALITY. Client will not disclose any pricing terms ("Confidential Information") without OK2Charge's prior written approval.
11. PRIORITY RIGHTS.
11.1 Services. As between OK2Charge and Client, all right, title and interest in the Services, Software and any other OK2Charge materials furnished or made available hereunder, and all modifications and enhancements thereof, and all suggestions, ideas and feedback proposed by Client regarding the OK2Charge, including all copyright rights, patent rights and other Intellectual Property Rights in each of the foregoing, belong to and are retained solely by OK2Charge or OK2Charge's licensors and providers, as applicable. Client hereby does and will irrevocably assign to OK2Charge all evaluations, ideas, feedback and suggestions made by Client to OK2Charge regarding the Services (collectively, "Feedback") and all Intellectual Property Rights in the Feedback.
11.2 Client Data. As between OK2Charge and Client, all right, title and interest in (a) Client Data, (b) other information input into the Services by Client (collectively, "Other Information") and (c) all Intellectual Property Rights in each of the foregoing, belong to and are retained solely by Client. Client hereby grants to OK2Charge a limited, non-exclusive, royalty-free, worldwide license to use "Client Data and perform all acts with respect to Client Data as may be necessary for OK2Charge to provide the Services to Client, and a non exclusive, perpetual, irrevocable, worldwide, royalty-free, fully paid license to use, reproduce, modify and distribute the Other Information as a part of the Aggregated Statistics (as defined in Section 11.3 below). To the extent that receipt of Client Data requires OK2Charge to utilize any account information from a third party service provider, Client shall be responsible for obtaining and providing relevant account information and passwords, and OK2Charge hereby agrees to access and use Client Data solely for Client's benefit and as set forth in these Terms. As between OK2Charge and Client, Client is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Client Data.
11.3 Aggregated Statistics. Notwithstanding anything else in these Terms or otherwise, OK2Charge may monitor Client's use of the Services and use data and information related to such use, Client Data, and Other Information in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Services ("Aggregated Statistics"). As between OK2Charge and Client, all right, title and interest in the Aggregated Statistics and all Intellectual Property Rights therein, belong to and are retained solely by OK2Charge. Client acknowledges that OK2Charge will be compiling Aggregated Statistics based on Client Data, Other Information, and information input by other customers into the Services and Client agrees that OK2Charge may (a) make such Aggregated Statistics publicly available, and (b) use such information to the extent and in the manner required by applicable law or regulation and for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify Client or its Confidential Information.
11.4 OK2Charge Developments. As between OK2Charge and Client, OK2Charge is the sole owner of the Software and the Documentation and shall retain all Intellectual Property Rights therein subject only Client's right to use the Services as expressly granted herein. All inventions, works of authorship and developments conceived, created, written, or generated by or on behalf of OK2Charge, whether solely or jointly, and all Intellectual Property Rights therein, shall be the sole and exclusive property of OK2Charge ("Developments"). Client agrees that, except for Client Confidential Information, to the extent that the ownership of any contribution by Client or its employees to the creation of the OK2Charge Developments is not, by operation of law or otherwise, vested in OK2Charge, Client hereby assigns and agrees to assign to OK2Charge all right, title and interest in and to such OK2Charge Developments, including without limitation all the Intellectual Property Rights therein, without the necessity of any further consideration.
11.5 Further Assurances. To the extent any of the rights, title and interest in and to Feedback or OK2Charge Developments or Intellectual Property Rights therein cannot be assigned by Client to OK2Charge, Client hereby grants to OK2Charge an exclusive, royalty-free, transferable, irrevocable, worldwide, fully paid-up license (with rights to sublicense through multiple tiers of sublicensees) to fully use, practice and exploit those non-assignable rights, title and interest. To the extent that the foregoing assignment and license are not enforceable, Client agrees to waive and never assert against OK2Charge those non-assignable and non-licensable rights, title and interest. Client agrees to execute any documents or take any actions as may reasonably be necessary, or as OK2Charge may reasonably request, to perfect ownership of the Feedback and OK2Charge Developments. If Client is unable or unwilling to execute any such document or take any such action, OK2Charge may execute such document and take such action on Client's behalf as Client's agent and attorney-in-fact. The foregoing appointment is deemed a power coupled with an interest and is irrevocable.
11.6 Carbon Offset Credits. To the extent any of the rights, title and interest in and to Carbon Offset Credits cannot be assigned by Client to OK2Charge, Client hereby grants to OK2Charge an exclusive, royalty-free, transferable, irrevocable, worldwide, fully paid-up license (with rights to sublicense through multiple tiers of sublicensees) to fully use, practice and exploit those non-assignable rights, title and interest. To the extent that the foregoing assignment and license are not enforceable, Client agrees to waive and never assert against OK2Charge those non-assignable and non-licensable rights, title and interest. Client agrees to execute any documents or take any actions as may reasonably be necessary, or as OK2Charge may reasonably request, to perfect ownership of the Carbon Offset Credits. If Client is unable or unwilling to execute any such document or take any such action, OK2Charge may execute such document and take such action on Client's behalf as Client's agent and attorney-in-fact. The foregoing appointment is deemed a power coupled with an interest and is irrevocable.
12. LIMITATION OF LIABILITY.
12.1 No Consequential Damages. OK2Charge SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, EVEN IF OK2Charge HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE SERVICE OR THE RESULTS THEREOF. OK2Charge WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICE.
12.2 Limits on Liability. OK2Charge SHALL NOT BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES GREATER THAN AN AMOUNT EQUAL TO THE AMOUNTS PAID BY CLIENT TO OK2Charge UNDER THIS AGREEMENT DURING THE PERIOD OF SIX (6) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.
12.3 Essential Purpose. CLIENT ACKNOWLEDGES THAT THE TERMS IN THIS SECTION 12 (LIMITATION OF LIABILITY) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
13.1 Each Subscription Term and this Agreement may be terminated as follows:
13.1.1 OK2Charge may terminate this Agreement (and the Subscription Terms of all Chargers) immediately by written notice to Customer ("Termination for Nonpayment"), with respect to any and or all Chargers, in the event that Customer fails to timely and in full pay the Annual Fee, the Monthly Fee, any Transaction Fees or any other amount under these Terms or any Purchase Agreement ("Client Payment Default") and fails to fully cure such Client Payment Default within a period of five (5) days after such payment was first due (provided that Client shall have no right to cure more than two (2) Client Payment Defaults during any six (6) month period);
13.1.2 either party may terminate this Agreement (and the Subscription Terms of all Chargers) immediately by written notice to the other party ("Termination for Cause") in the event such other party (a) materially breaches this Agreement (other than a Client Payment Default, which shall be governed by clause (i) above) and fails to cure such within a period of sixty (60) days, after written notice thereof from the terminating party, or such longer period (not exceeding one hundred and twenty (120) days after such written notice) as is reasonably necessary for such other party to effectuate such cure and provided such other party uses its reasonable, continual efforts to implement such cure at all times or (b) files a petition for bankruptcy or has a petition for bankruptcy filed against it that is not dismissed within sixty (60) days after filing or admits its inability to pay its debts as they mature, makes an assignment for the benefit of its creditors or ceases to function as a going concern or to conduct its operations in the normal course of business;
13.1.3 either party may terminate the applicable Subscription Terms of any or all Chargers upon written notice given of no less than sixty (60) days prior to the Anniversary date of the Activation Date such termination and setting forth the specific Chargers (including serial numbers) as to which such termination is applicable ("Termination for Convenience"); and
13.1.4 OK2Charge may terminate this Agreement and the Subscription Terms of all Chargers immediately if and upon such time that the provider of any of the Third Party Offerings ceases to make any such Third Party Offerings available for integration with the corresponding Services and Software features on terms reasonably satisfactory to OK2Charge. A termination under this Subsection 13.1.4 shall also be deemed a Termination for Convenience by OK2Charge.
13.2 Non-Exclusive Remedy. The right of OK2Charge to effect a Termination for Nonpayment or for Cause is without prejudice to any other available remedies of OK2Charge. Upon a Termination for Nonpayment or for Cause by OK2Charge, Client shall nonetheless remain fully obligated to pay the Annual Fee and Monthly Fee for the remainder of the applicable Subscription Terms, as if such termination had not occurred, and all such amounts shall thereupon be accelerated and immediately due in full without discount. It is expressly understood and agreed that the provisions of the immediately preceding sentence are not punitive, special, consequential, indirect or excessive but intended to compensate OK2Charge for benefit of the bargain struck by the parties under this Agreement.
13.3 Termination Fee. In the event Client shall effect a Termination for Convenience, Client shall (a) immediately pay a termination fee to OK2Charge equal to $750 for each of the Charger(s) covered by such Termination for Convenience, minus the aggregate amount of the Fees and Hardware Purchase Costs actually paid by Client in respect of such Charger(s), (b) not be entitled to any refund of any Fees or any other amounts paid or due for the Subscription Terms of the Chargers covered by such Termination for Convenience and (c) remain fully liable to OK2Charge for any and all defaults or breaches of this Agreement by Client occurring or existing at any time on or before the effective date of such Convenience Termination.
13.4 Effects of Termination. In the event of a Termination for Nonpayment or a Termination for Cause by OK2Charge, (a) Client's use of and access to the Services and Software shall cease with respect to all Chargers and OK2Charge shall have the right to immediately disable electronically the Services and the Software, (b) all Purchase Orders shall terminate and (c) all fees and other amounts owed to OK2Charge shall be immediately due and payable by Client. OK2Charge shall have no obligation to maintain or provide any Client Data and may thereafter, unless legally prohibited, delete all Client Data in its systems or otherwise in its possession or under its control. In the event of a Termination for Convenience then, the foregoing provisions shall apply but be limited solely to the Chargers covered by such Termination for Convenience.
13.5 Survival. The respective rights and obligations of OK2Charge and Client which by their nature would continue beyond the termination or expiration of these Terms shall survive the termination or expiration of these Terms, including, without limitation, the rights and obligations regarding payment, ownership, confidentiality, limitation of liability, remedies, and indemnification. Without limiting the generality of the foregoing, this Section and Sections 1, 2.3, 2.4, 3.2, 3.3, 4.2, 7, 8, 9, 10, 11, 12, 13.4, 14 shall survive any termination or expiration of these Terms.
14.1 Notices. OK2Charge may give notice to Client by means of a general notice through the Services interface, electronic mail to Client's e-mail address on record with OK2Charge, or by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service to Client's address on record with OK2Charge. Client may give notice to OK2Charge by electronic email at OK2Charge's email address or by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service addressed to OK2Charge, Attention: contracts@OK2Charge.com. Notice shall be deemed to have been given upon receipt or, if earlier, two (2) business day safter mailing, as applicable. All communications and notices to be made or given pursuant to these Terms shall be in the English language.
14.2 Governing Law. These Terms and the rights and obligations of the parties to and under this agreement shall be governed by and construed under the laws of the United States and the State of Florida, as applied to agreements entered into and to be performed in such State without giving effect to conflicts of laws rules or principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms. Any dispute arising out of or in connection with these Terms, including but not limited to any question regarding its existence, interpretation, validity, performance, or termination, or any dispute between the parties arising from the parties relationship created by these Terms, shall be referred to and finally resolved by arbitration administered by the American Arbitration Association under its rules. The number of arbitrators shall be one (1). The parties shall endeavor to agree upon the sole arbitrator and jointly nominate the arbitrator. If the parties cannot agree upon the sole arbitrator within a time prescribed by AAA, the parties shall request the AAA to propose five (5) arbitrators and each party shall rank the proposed arbitrators. The AAA shall appoint an arbitrator from the list of five (5), based upon the parties rankings. The seat, or legal place of arbitration shall be Florida, United States. Notwithstanding the foregoing, OK2Charge has the right to pursue equitable relief in the state and federal courts located in Florida, and Client agrees to the exclusive jurisdiction and venue of such courts.
14.3 Publicity. OK2Charge has the right to reference and use Client's name and trademarks and disclose the nature of the Services provided hereunder in each case in OK2Charge business development and marketing efforts, including without limitation OK2Charge's web site.
14.4 No Solicitation of Employees. Client agrees that, so long as the Subscription Term remains in effect, and for a period of two (2) year following the termination or expiration of the Subscription Term, it will not directly solicit for employment the employees of OK2Charge without OK2Charge's prior written consent; provided, however, that the foregoing prohibition shall not preclude the hiring by Client of any individual who responds to a general solicitation or advertisement, whether in print or electronic form, only job postings and social networking sites.
14.5 Export. The Services utilize software and technology that may be subject to United States and foreign export controls. Client acknowledges and agrees that the Services shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Services, Client represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Services may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. Client agrees to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. OK2Charge and its licensors make no representation that the Services is appropriate or available for use in other locations. Any diversion of Client Data contrary to law is prohibited. None of Client Data, nor any information acquired through the use of the Services, is or will be used for nuclear activities, chemical or biological weapons, or missile projects.
14.6 General. Client shall not assign its rights hereunder, or delegate the performance of any of its duties or obligations hereunder, whether by merger, acquisition, sale of assets, operation of law, or otherwise, without the prior written consent of OK2Charge. Any purported assignment in violation of the preceding sentence is null and void. Subject to the foregoing, this Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of the parties thereto. Except as otherwise specified in these Terms, these Terms may be amended or supplemented only by a writing that refers explicitly to these Terms and that is signed on behalf of both parties. No waiver will be implied from conduct or failure to enforce rights. No waiver will be effective unless in a writing signed on behalf of the party against whom the waiver is asserted. If any of these Terms is found invalid or unenforceable that term will be enforced to the maximum extent permitted by law and the remainder of the Terms will remain in full force. The parties are independent contractors and nothing contained herein shall be construed as creating an agency, partnership, or other form of joint enterprise between the parties. These Terms, including all applicable Purchase Orders constitute the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral. Except for Client's payment obligations hereunder, neither party shall be liable to the other party or any third party for failure or delay in performing its obligations under these Terms when such failure or delay is due to any cause beyond the control of the party concerned, including, without limitation, acts of God, governmental orders or restrictions, fire, or flood, provided that upon cessation of such events such party shall thereupon promptly perform or complete the performance of its obligations hereunder.