Electric Vehicle Charging Services Agreement.
This Electric Vehicle Charging Services Agreement governs the deployment and service arrangement for electric vehicle (“EV”) charging equipment (“Equipment”) by Hypercharge Networks Corp, a Canadian corporation, with a principal place of business at Suite 310, 1008 Homer Street, Vancouver, British Columbia, V6B 2X1(“Hypercharge”). Hypercharge and Customer will be referred to herein as a “Party” and collectively as the “Parties.”
BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM OR STATEMENT OF WORK THAT REFERENCES THIS AGREEMENT, OR (3) USING FREE SERVICES, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
This Agreement was last updated on November 18, 2021. It is effective between Hypercharge and Customer as of the date of Customer’s accepting this Agreement (the “Effective Date”).
In consideration of the mutual promises and obligations set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, Hypercharge and Customer hereby agree as follows:
2.1. Hypercharge and Customer hereby engage in this exclusive electric vehicle charging service agreement whereby Hypercharge will supply, operate, and service the Equipment listed in Schedule I of the Order Form, which Customer agrees to install on the property addresses listed in Schedule II of the Order Form, under the terms and conditions hereof throughout the Term.
2.2. Installation. At the cost of the Customer, Hypercharge will arrange for a third party service Hypercharge to install the Equipment at the location(s) within the Property specifically designated for EV charging by Customer and set forth and/or depicted by diagrams on annexed Schedule II of the Order Form (collectively, hereinafter the “Designated Areas”). The Property list (Schedule II of the Order Form) may be updated from time to time throughout the Term to include additional properties. Customer acknowledge that any service provided by a third party service Hypercharge may be subject to the third party service Hypercharge’s terms and conditions. Hypercharge shall not be liable for any damages caused by the third party service Hypercharge.
2.3. Services. Hypercharge will service and operate the Equipment at the Designated Areas.
3. Term and Termination
3.1. Initial Term. The initial term of this Agreement shall be for a period years as set out in the Order Form commencing on the Effective Date (“Initial Term”).
3.2. Renewal Term; Term. This Agreement shall automatically renewed as set out in the Order Form (each, a “Renewal Term” and, together with the Initial Term, the “Term”).
3.3. Expiration. Upon expiration of the second Renewal Term, unless terminated earlier, the Agreement shall continue on a month-to- month basis.
3.4. Termination. Hypercharge may choose to terminate this Agreement by delivering Customer with sixty (60) days’ written notice of its intent to terminate prior to the expiration of the Term or any applicable Renewal Term. If Hypercharge terminates this Agreement in accordance with any of the provisions of this Agreement, Hypercharge will not be liable to Customer because of such termination for compensation, reimbursement, or damages (including but not limited to any loss of prospective revenues). Termination will not, however, relieve either party of obligations incurred prior to the Effective Date of the termination.
3.5. Removal of Equipment. Hypercharge shall have the right, but not the obligation, upon the termination or expiration of this Agreement, to enter upon the Property within sixty (60) days after such termination/expiration and to remove any and all Equipment (which all right, title and interest in said Equipment shall at all times during the term of this Agreement, be deemed property of Hypercharge) as well as any other ancillary property of Hypercharge relating thereto. Hypercharge shall coordinate removal of Equipment with Customer.
4.1. Supply. Hypercharge shall supply the Equipment listed in Schedule I of the Order Form, after the execution of this Agreement and a proper Order Form.
4.2. Ownership. All rights, titles and interests in and to the Equipment shall, at all times during the Term, be and remain the property of Hypercharge. Hypercharge’s ownership shall include, but not limited, to all hardware, software, records, files and/or data collected or produced by the Equipment (the “Proprietary Data”), as well as any and all environmental (or similar) credits generated by the use or disbursement of electricity by the Equipment.
4.3. Additional Equipment. Hypercharge may assess, from time to time, the need for additional Equipment on the Property based on certain parameters and make its recommendations to the Customer. If accepted: (i) Customer shall perform all installations of the additional Equipment and carry all associated costs; (ii) the parties will execute an Installation Date Acknowledgement Certificate (Schedule III of the Order Form) for the additional Equipment, which will establish a new Effective Date. The Term of this Agreement shall restart from the day of the new Effective Date.
4.4. Markings. Hypercharge shall ensure the Equipment is clearly marked with the following information for users: contact information for complaints, notification and service issues and a statement of Hypercharge’s responsibility to service issues damages or loss.
4.5. Property Condition. Customer agrees, at its own expense and at all times during the Term, to keep public areas, streets and sidewalks appurtenant to any Designated Areas, reasonably free of debris and rubbish and in good repair and condition. In addition, Customer shall provide and maintain, in compliance with any applicable codes and statutes, such outdoor lights and lighting as may be necessary to illuminate the Designated Areas and Equipment. Customer shall be responsible to protect the Equipment on the Property.
4.6. Internet Connection. In the event the Equipment cellular signal is not available, Customer will allow Hypercharge to access its Wi-Fi network or wired ethernet (LAN), if such networks are available at the Property.
4.7. Signage. Customer will install and pay all costs and expenses associated with a signage that Hypercharge will supply, for marking the spot in the Designated Area(s) as EV charging station area.
5. Access to Equipment
5.1. Hypercharge, its employees, agents, and vendors may enter upon the Property at any time (and to the extent possible, with notice to Customer), for purposes of inspecting, servicing, and maintaining the Equipment. Customer shall not interfere with Hypercharge’s services, maintenance, or data collection from the Equipment, or its other responsibilities under this Agreement.
6. Licenses / Permits
6.1. Customer must obtain all necessary licenses and/or permits for the installation and operation of the Equipment and shall be exclusively responsible for any citations as a result of any default hereunder.
7. Maintenance and Services
7.1. Hypercharge will service and operate the Equipment.
7.2. Hypercharge will maintain and replace the Equipment as necessary to keep the Equipment in proper working order.
7.3. Hypercharge will make available technical service support personnel to promptly service the Equipment in a commercially reasonable manner.
7.4. If Customer knows of or becomes aware of any actual or potential claim against Hypercharge by any person or entity, or any actual or potential malfunction with the Equipment, Customer shall notify Hypercharge promptly upon discovery of such claim or malfunction.
7.5. If the Equipment requires maintenance or replacement due to (i) vandalism or (ii) faulty installations, Customer shall be responsible to carry the costs associated with such services.
8. Payment and Fees
8.1. Collection of Revenue. Hypercharge will record the Equipment usage and collect all revenue generated by the Equipment.
8.2. Revenue Payment. Hypercharge shall remit to Customer the percentage of the Net Revenues generated by the Equipment as set out in the Order Form (“Revenue Payment”).
8.3. “Net Revenues” are defined as the gross revenues generated from the Equipment through EV charging fees (“Gross Revenues”), minus: (i) any and all taxes paid by Hypercharge, (ii) transaction fees and payment processing fees paid by Hypercharge, (iii) utility costs; (iv) other fees incurred by Hypercharge or as agreed upon by the parties ((i), (ii), (iii), and (iv) being referred to hereinafter as the “Service Fees” or “Fees”).
8.4. Where the utility costs are incurred by the Customer, Hypercharge shall reimburse the Customer for the portion of the utility costs that is directly related to the operation of the Equipment.
8.5. Hypercharge shall issue the Revenue Payment to Customer on or before the fifteenth (15th) day of each month subsequent to the applicable monthly revenue period. An activity report for the reported month detailing: the number of transactions, the Gross Revenues, and the Service Fees, will accompany each Revenue Payment.
8.6. If the Gross Revenues do not cover the Service Fees incurred in a given month, such unpaid Fees will accrue to the following month.
8.7. Customer waives all claims for any additional payments beyond the Revenue Payment.
8.8. Customer agrees that unless Customer executes the ACH Form Schedule IV of the Order Form, no Revenue Payment shall be processed to Customer unless and until either (i) the aggregate amount due to Customer exceeds $50.00 or (ii) it is January 15th and there are unpaid Revenue Payments due to Customer as of December 31st of the previous year.
8.9. Session Limits. Hypercharge shall be solely responsible for managing issues relating to session time limits, advertising fees or other charges relating to use of the Equipment by any party.
8.10. ACH Payments. Customer will obtain its monthly Revenue Payments through direct electronic transmissions (ACH Payments), by providing its banking information to Hypercharge and executing the ACH form attached as Schedule IV of the Order Form.
8.11. Equipment Upgrade. During the Term, Hypercharge may upgrade the Equipment within the Designated Areas. Hypercharge shall be solely responsible for all costs associated with such upgrade.
8.12. Relocation. During the Term, Customer shall not unreasonably withhold its approval of Hypercharge’s request to relocate or remove underperforming Equipment from a specific location to a different location within the Designated Area(s). Hypercharge shall be responsible for all costs associated with the relocation or removal of the Equipment. In the event the relocation or removal of the Equipment is made due to the determination of the Customer or a third party, Customer shall be solely responsible for all associated costs of the removal and/or relocation.
9. Press Releases and Public Filings
9.1. Hypercharge and/or its parent may disclose information relating to this Agreement in any manner necessary to comply with applicable law.
9.2. Customer agrees that Hypercharge may use Customer’s name and logo as a Customer in its marketing materials, subject to Customer’s approval which shall not be unreasonably withheld.
9.3. Customer may not disclose any information relating to this Agreement without obtaining Hypercharge’s prior approval, in writing.
10. Exclusive Rights and Option
10.1. EV Exclusivity. Customer hereby grants Hypercharge with an exclusive right to install, maintain, service or operate any EV charging equipment on the Property during the Term.
10.2. Additional Locations. During the Term, in the event that additional Designated Areas for EV charging equipment will be needed, either on the Property or at another Customer- owned/leased/managed location, Hypercharge shall have the exclusive option to provide, operate, and service the Equipment at said location (“Additional Equipment”). The Additional Equipment shall be listed and added to Schedule I of the Order Form, the new locations shall be added to the list of the Designated Areas Schedule II of the Order Form, and all terms and conditions of this Agreement shall apply to the Additional Equipment.
10.3. Hypercharge shall have the sole determination on the appropriate ratio of Equipment in a Designated Area under this Agreement.
11.1 Customer shall be responsible for and liable to Hypercharge for any losses, costs, damages and expenses whatsoever which Hypercharge may sustain, incur or pay and Customer shall indemnify and hold Hypercharge harmless from and against all claims, liabilities, losses, damages, expenses (including reasonable legal expenses on a solicitor and Customer basis and collection expenses) and all causes of actions (collectively, “Claims”) asserted or brought against it, for and in respect of injury to or death of any person, and for or in respect of damage (including, without limitation, environmental contamination or environmental damage) to or loss or destruction of any property arising in any way whatsoever out of a default or beach by Customer under this Agreement, or any negligence or willful misconduct by Customer, its agents, employees or servants.
Without limiting Customer’s foregoing obligations of indemnity, if any damage or environmental contamination results from the Customer’s property or use of the Equipment, Customer will be fully responsible for and indemnify Hypercharge and hold Hypercharge harmless from and against all costs related to the performance of any associated environmental remediation (including off-location remediation) and for the satisfaction of all third party claims against Customer or Hypercharge, including related costs in connection with such contamination or damage.
11.2. Should circumstances arise which give rise, or could give rise to an indemnification obligation by Customer:
(a) Hypercharge shall provide notice within a reasonable period of time to Customer with particulars of the circumstances which have resulted in, or could result in, the obligation for Customer to indemnify Hypercharge;
(b) If applicable, Hypercharge shall determine, in its sole discretion, whether to permit Customer to defend the claims using mutually acceptable counsel or to take over defence of claims, provided however that Hypercharge’s decision in this respect shall not affect the obligations of Customer to indemnify Hypercharge for legal costs on a solicitor and own Customer/full indemnity basis or the ability for Customer to, at its sole expense, participate in the defence of a Claim with counsel. The parties to this agreement shall provide reasonable information and assistance in defending Claims; and
(c) Upon receipt of a demand for indemnification by Customer, Customer shall, within thirty (30) days, notwithstanding any dispute or defence of Claims which may be ongoing, pay to Hypercharge the amount of that demand.
11.3. Notwithstanding any other provision of this Agreement, where Customer has conduct of the defence of an indemnified Claim, Customer shall not conclude or agree to the settlement or resolution of the indemnified Claim without Hypercharge’s prior written approval. Where Customer concludes or agrees to the settlement or resolution of an indemnified Claim without Hypercharge’s prior written approval, Customer shall be liable for the entire amount of such settlement or resolution, including any amount in excess of its indemnity obligations under this Agreement, and shall have no right to claim reimbursement, set-off or payment from Hypercharge or any other Indemnified Party with respect to any such excess amount.
12. Limitation of Liability
12.1. Hypercharge’s aggregate liability under this Agreement shall not exceed the greater of: the aggregate Net Revenues retained by Hypercharge in six (6) months prior to the event giving rise to a Claim; or the maximum compensation paid by the applicable insurance, if the liability is covered by an existing insurance policy.
12.2. In no event will Hypercharge be liable for any lost revenue or profit, lost or damaged data, business interruption, loss of capital, or for special, indirect, consequential, incidental or punitive damages, however caused and regardless of the theory of liability or whether arising out of the use of the Equipment, this Agreement or otherwise or based on any expressed, implied or claimed warranties not specifically set forth in this Agreement.
13. Confidential Information
13.1. For the purposes of this Clause 12, “Confidential Information” means all information, in whatever form, including verbal and written communications, computer programs, electronic data, sketches, photographs, financial and accounting books and records, specifications, reports, correspondence and other forms of documents and information that are indirectly or directly conceived, originated, prepared or received from a disclosing Party hereto to a receiving Party hereto in connection with or as a result of this Agreement, except information that the receiving Party can show falls into any of the following categories:
(a) information that at the time of disclosure or acquisition is already known to the receiving Party and is not acquired under any obligation of confidentiality or as a result of the receiving Party’s previous work or services performed for the other Party hereto;
(b) information that at the time of disclosure or acquisition is, or thereafter becomes, part of the public domain through no act or failure to act on the part of the receiving Party or on the part of any third party under an obligation of confidentiality with respect to the information; or
(c) information that is lawfully received from an independent third party without any obligation of confidentiality.
13.2. Security Measures. Each Party shall treat the Confidential Information of the other Party as confidential and effect and maintain the same security measures to safeguard such Confidential Information from unauthorized access, use and misappropriation as it maintains with its own similar information that it does not wish publicly to disclose, publish or disseminate, which shall in any event be reasonable security measures.
(a) Each Party shall not, and shall ensure that its personnel do not, without the prior written approval of the other Party:
(i) use Confidential Information other than as necessary for the purposes of fulfilling its obligations under this Agreement; or
(ii) disclose the Confidential Information, other than to its personnel who need such Confidential Information to enable them to perform its obligations under this Agreement, to its legal advisors, accountants or auditors, or where disclosure is required by law.
(b) Each Party shall ensure that all Persons to whom it discloses Confidential Information of the other Party are made aware, prior to the disclosure of the Confidential Information, of the confidential nature thereof, that they owe a duty of confidence to the other Party and agree in writing to hold the Confidential Information of the other Party in confidence under terms sufficient to satisfy the terms of this Section 21;
(c) Each Party shall notify the other Party promptly of any unauthorized use, copying or disclosure of the Confidential Information of which it becomes aware and shall provide all reasonable assistance to the other Party to terminate any such unauthorized use or disclosure.
(d) Immediately upon the earlier of the Customer’s request or the termination of this Agreement, a Purchase Order, as applicable, Hypercharge shall promptly return or destroy the requested or related Confidential Information, as applicable. Upon completion of the foregoing, an officer of Hypercharge shall provide written confirmation to the Customer that Hypercharge has complied with the requirements of this Clause 12.
13.4. Compensation. Each Party agrees that in the event of a breach or threatened breach of this Clause 12 by it, the harm suffered by the other Party would not be compensable by monetary damages alone and, accordingly, in addition to other available legal or equitable remedies, the non-breaching Party shall be entitled to an injunction or specific performance with respect to such breach or threatened breach, without proof of actual damages (and without the requirement of posting a bond or other security) and the breaching Party agrees not to plead sufficiency of damages as a defence.
14. Injunctive Relief
14.1. Hypercharge shall be entitled to enforce each of the obligations and restrictive covenants by means of injunctive relief or an order of specific performance and that such remedy shall be available in addition to all other remedies available at law or in equity.
14.2. In such action, Hypercharge shall not be required to plead or prove irreparable harm or lack of an adequate remedy at law or post a bond or any security.
15.1. Where a Party provides or makes available personal information to the other Party in connection with this Agreement, the first Party must: (i) comply with all Privacy Laws in relation to that personal information; and (ii) take all steps that are reasonable in the circumstances to keep that personal information safe and secure.
16. Force Majeure
16.1. If Hypercharge shall be delayed in or prevented from the performance of any act required under this Agreement by reason of any strike, lockout, labour trouble, inability to procure materials or energy, failure of power, weather, restrictive governmental laws or regulations, riot, insurrection, picketing, sit-ins, war or other unavoidable reason of a like nature not attributable to the negligence or fault of Hypercharge, the performance of such work or action will be excused for the period of the unavoidable delay and the period for the performance of any such work or action will be extended for an equivalent period.
17. Dispute Resolution
17.1. This Clause 16 applies to any dispute which arises between Hypercharge and Customer in connection with this Agreement (“Dispute”).
17.2. Amicable Resolution. If either Party considers that a Dispute has arisen, it may issue a notice to the other Party, setting out reasonable particulars of the matters in dispute (“Dispute Notice”). The Parties must promptly hold discussions between their representatives after the issue of a Dispute Notice to attempt to resolve the Dispute.
17.3. Unresolved Dispute. If the Dispute has not been resolved within ten business days after commencement of the amicable efforts, the Parties may agree to submit the unresolved dispute to arbitration pursuant to Clause 16.4.
17.4. Arbitration. Should the Parties be unable to reach agreement on a dispute as set out above, either Party may refer the matter for final binding arbitration in accordance with Schedule A of this Agreement.
17.5. Governing Law and Jurisdiction. This Agreement shall be governed and construed in accordance with the laws of the Province of British Columbia, or Canada, as applicable. Each party hereby irrevocably attorns to the exclusive jurisdiction of the courts of the Province of British Columbia sitting in the City of Vancouver in relation to any legal proceedings arising in connection with this Agreement.
18.1. Any notice required to be given or otherwise given pursuant to this Agreement shall be in writing and shall be (i) hand delivered, or (ii) mailed by certified mail, return receipt requested, or (iii) sent via recognized overnight courier service to the addresses listed above, or (iv) transmitted by fax, or (v) by email.
18.2. No Email or Fax Transmissions. Neither Party may use email or fax transmissions to give notice of breach or termination to the other Party.
19.1. Each Party shall hold and maintain, at all times during the Term, fitting and suitable insurance policies according to the reasonably perceived risks associated with each Party’s responsibilities under this Agreement, and in accordance with standard industry practice.
19.2. Prior to commencing this Agreement, Customer shall obtain and maintain, at its own sole cost and expense, either by way of a new policy or by endorsement to an existing policy, the following insurance policies at all times during the performance of this Agreement:
(a) “Commercial General Liability” insurance, including third party bodily injury, property damage, contractual liability and non-owned automobile liability with a limit not less than $5,000,000 dollars per occurrence. The insurance shall contain an obligation of the part of the insurer to notify Hypercharge at least 30 calendar days prior to any material change or cancellation of the policy(ies). Hypercharge, its officers, employees, servants and agents shall be named as additional insureds with a waiver of subrogation and such insurance shall also insure all subcontractors and anyone employed directly or indirectly by Hypercharge or its subcontractors to perform any part of this Agreement.
(b) If applicable (as determined by Hypercharge), Professional “Errors and Omissions” insurance in an amount of not less than $2,000,000 dollars per occurrence.
(c) If applicable (as determined by Hypercharge), Property or Contractors Equipment insurance to cover physical damage to or the loss of all major tools and equipment, construction office trailers and their contents, unlicensed vehicles and other property for which Customer owns or is responsible, throughout the course of the performance of its obligations under this Agreement.
20.1. Nothing in this Agreement shall constitute or be deemed to constitute a partnership or joint venture between the parties hereto or constitute or be deemed to constitute any Party as the agent or employee of the other Party for any purpose whatsoever and neither Party shall have authority or power to bind the other or to contract in the name of, or create a liability against, the other in any way or for any purpose.
20.2. Customer agrees to comply with all applicable laws, statutes, regulations or rules, including those of applicable self-regulatory bodies in its performance of this Agreement.
20.3. Customer may not assign, in whole or in part, or novate its rights and obligations under this Agreement without the prior written consent of Hypercharge.
20.4. This Agreement supersedes all previous agreements about its subject matter. This Agreement embodies the entire agreement between the parties.
20.5. A right under this Agreement may only be waived in writing signed by the party granting the waiver and is effective only to the extent specifically set out in the waiver.
20.6. This Agreement may be signed in any number of counterparts. All counterparts together make one instrument.
20.7. Customer Representation: If Customer is not the Property Owner, or Leaseholder of the Property, and in the case of a leaseholder, if Customer does not have authority to carry out its obligations under this Agreement pursuant to its lease agreement with the Property Owner, Customer hereby expressly warrants that it will obtain the Property Owner or Leaseholder’s signature.
20.8. English Language. It is the express wish of the parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
Dispute Resolution Schedule
1. Dispute Resolution Schedule
1.1 Disputes: Any dispute, controversy or claim, including all claims arising at common law, equity or contract, between Customer and Hypercharge arising from, connected with, or relating in any manner to this Agreement (each a “Dispute”) will be resolved as set out in this Dispute Resolution Schedule (referred to as “Schedule”).
1.2 Arbitration: The Parties hereby agree that any and all Disputes shall be resolved by way of final and binding arbitration pursuant to the British Columbia Arbitration Act, SBC 2020, c.2 as the same may be amended or replaced from time to time and in accordance with this Schedule. All awards issued by the arbitral tribunal shall be final and binding on the parties, in accordance with the applicable law of the arbitration.
1.3 Initiation of the Dispute Resolution Process: If a Dispute arises either party shall initiate the dispute resolution procedure by way of the following:
1.3.1 The party initiating the Dispute shall provide the other party with a written notice (a “Dispute Notice”) summarizing the subject matter of the Dispute, the relief requested and the grounds relied upon for such relief, and requesting that the parties attempt to resolve the Dispute by way of this Schedule.
1.3.2 At the first instance, once a Dispute Notice is delivered, the parties shall make all reasonable efforts to resolve their dispute by amicable negotiations. If the Dispute is not fully and finally resolved within ten (10) days after the date of delivery of the Dispute Notice (or a later date agreed in writing by the Parties) then the representatives of the Customer and Hypercharge will promptly meet within fourteen (14) days (or a later date agreed in writing by the Parties), either in person, or by a video/telephone conference call, and attempt to negotiate an amicable resolution of the Dispute.
1.3.3 If the Dispute is not fully and finally resolved pursuant to Section 1.3.2 within thirty (30) days of the Dispute Notice being provided, then the Dispute shall be subject to final and binding arbitration pursuant to the British Columbia Arbitration Act, SBC 2020, c.2 as the same may be amended or replaced from time to time. Compliance with Sections 1.3.1, 1.3.2 is not a condition precedent to the commencement of the arbitration, and the Parties are free to commence an arbitration to resolve the Dispute in accordance with the provisions of this Schedule at any time permitted by law.
1.4 Commencement of Arbitration: A party shall commence an arbitration by delivering (in accordance with the notice provisions in this Agreement) a written notice to the other party (the “Notice to Arbitrate”). The Notice to Arbitrate shall outline the subject matter of the Dispute to be arbitrated, and the relief requested and the grounds relied upon for such relief to be provided in the arbitration. If the expedited arbitration process set out in Section 1.10 of this Dispute Resolution Schedule applies, the party shall provide a list of three (3) proposed arbitrator candidates in the Notice to Arbitrate. If the expedited arbitration process set out in Section 1.10 of this Schedule does not apply, the party initiating the dispute shall nominate one arbitrator in the Notice to Arbitrate.
1.5 Number and Selection of Arbitrators: If the expedited arbitration process set out in Section 1.10 of this Schedule does not apply then this Section 1.5 of the Schedule shall be used to select the arbitrators. The number of arbitrators shall be three, unless the parties agree in writing otherwise. The party initiating the dispute shall nominate one arbitrator in the Notice to Arbitrate. The party responding to the dispute shall nominate one arbitrator within ten (10) days after receipt of the Notice to Arbitrate. The third arbitrator, who shall act as the president of the arbitral tribunal, shall be nominated jointly by the two arbitrators nominated by Hypercharge and the Customer within thirty (30) days following the later of their appointments. If either party fails to nominate an arbitrator within the time period for which they are required to do so, or if the two arbitrators nominated by the parties are unable to jointly nominate the third arbitrator within the timelines set out in this Schedule, then either party is at liberty to apply to the applicable courts in British Columbia, who shall have the authority to appoint any such arbitrator
1.6 Arbitrator Qualifications: The arbitrators nominated by the parties shall be practicing Canadian lawyers, or former judges, who have had experience with acting as counsel, or adjudicators, in commercial disputes of the kind which would involve technical issues and the use of expert evidence.
1.7 Seat of Arbitration: The legal seat of the arbitration shall be Vancouver, British Columbia.
1.8 Language of Arbitration: The language to be used in all aspects of the arbitral proceedings shall be English.
1.9 Arbitral Procedure: If the expedited arbitration process set out in Section 1.10 of this Schedule does not apply, the arbitration will proceed ad hoc with a procedure to be agreed upon by the parties subject to the approval of the arbitral tribunal, failing which the arbitral tribunal shall impose the process to be used for the arbitration. The arbitral tribunal shall hold a case management meeting within thirty (30) days of the date on which the arbitral tribunal is fully constituted, so that the procedure for resolution of the arbitration can be set. The arbitral tribunal shall have jurisdiction and authority to rule on all preliminary, interim and interlocutory matters at the request of a party, including but not limited to jurisdiction, interim measures, and any procedural or evidentiary disputes, and the procedure for resolution of the arbitration shall allow for such measures.
1.10 Expedited Arbitration Process: If the total relief sought by the parties in the arbitration can be reasonably ascertained at less than $150,000 Canadian dollars (being the total amount when claims and counterclaims are considered), then the following expedited arbitral procedure shall apply:
1.10.1 The parties shall each provide one another with a list of three (3) suitable arbitrators. The party initiating the dispute shall do so in the Notice to Arbitrate. The party responding to the dispute shall provide the list within fourteen (14) days after receipt of the Notice to Arbitrate. The parties shall then work with each other to agree upon the sole arbitrator who will resolve the Dispute. If either party fails to provide the lists of arbitrators in the required time period, or if the parties are unable to nominate the arbitrator within thirty (30) days following the receipt of the list of arbitrators provided by the party responding to the Notice to Arbitrate, then either party is at liberty to apply to the applicable courts in British Columbia to appoint the sole arbitrator.
1.10.2 The arbitration will proceed ad hoc, with a procedure to be agreed upon by the parties subject to the approval of the sole arbitrator, failing which the sole arbitrator shall impose the process to be used for the arbitration. Unless the parties expressly agree otherwise or the arbitrator directs otherwise, any procedure used for this expedited arbitration process shall be subject to the parties’ express intention that any arbitration using the expedited arbitration process shall be resolved solely by way of written submissions, with no oral examinations for discovery/depositions, and no oral hearings.
1.10.3 The sole arbitrator shall have jurisdiction and authority to rule on all preliminary, interim and interlocutory matters at the request of a party, including but not limited to jurisdiction, interim measures, and any procedural or evidentiary disputes, and the procedure for resolution of the arbitration shall allow for such measures.
1.10.4 The sole arbitrator shall render a final award within six (6) months after the appointment of the sole arbitrator, or as soon as possible after that time period, provided that no award shall be invalid if it is not rendered within the time period specified. The parties agree that the arbitrator shall maintain jurisdiction over the Dispute notwithstanding the expiration of the six month period of time to render the award. Any award may be filed in any court of competent jurisdiction and may be enforced by a party as a final judgment of such court.
1.11 Arbitral Award: If the expedited arbitration process set out in Section 1.10 of this Schedule does not apply, then this Section 1.11 shall apply. The arbitral tribunal shall render its final award within twelve (12) months after the appointment of the arbitral tribunal, or as soon as possible after that time period, provided that no award shall be invalid if it is not rendered within the time period specified. The parties agree that the arbitral tribunal shall maintain jurisdiction over the Dispute notwithstanding the expiration of the twelve (12) month period of time to render the award. Any award may be filed in any court of competent jurisdiction and may be enforced by a party as a final judgment of such court.
1.12 Arbitral Costs: The parties will initially equally share the cost of arbitration. The arbitral tribunal, or sole arbitrator, as the case may be, shall have the power to dictate that all, or a portion of all, costs, including solicitor and own Customer (full indemnity) costs of the successful party, the fees and expenses of the arbitral tribunal, and any other expenses related to the arbitration shall be borne by the party whom the arbitral tribunal or sole arbitrator deems to be the unsuccessful party in the arbitration.
1.13 Confidentiality: Any arbitration carried out under this Schedule shall in all respect be kept private and confidential, except where and to the extent such disclosure is required pursuant to a judicial, regulatory, or other legal requirement or legal duty. The parties agree that judicial proceedings relating to the arbitration (including proceedings to enforce the agreement to arbitrate, or enforce any arbitral award) are permitted notwithstanding any confidentiality obligations.
1.14 Performance during Dispute Resolution Process: Pending the resolution of a Dispute, each party will continue to perform all of the party’s obligations under this Agreement.
1.15 Residual Court Jurisdiction: Notwithstanding the foregoing in this Schedule, any Party may seek preliminary or temporary injunctive relief from the applicable courts in British ColumbiaB, so as to avoid irreparable harm or to preserve the status quo, to prevent the expiry of any applicable limitation period or to prevent the unauthorized disclosure or use of the party’s confidential information. Such preliminary or temporary injunctive relief shall not relieve the parties of their binding obligation to resolve any and all Disputes by way of the arbitration contemplated by this Schedule, and any such preliminary or temporary injunctive relief shall be subject to the final and binding determination by way of the arbitration process.