Master Products and Services Agreement.
Master Products and Services Agreement.
Last updated: Aug 10, 2022
This Master Products and Services Agreement governs customer’s acquisition and use of products and services from 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:
- Products, Services, and Subscriptions
1.1 Products and Services. Hypercharge shall provide the goods and products (the “Products”), subscription to an electric vehicle charging management software (the “Software”), and perform faithfully and diligently the services (the “Services”) at the prices and fees set forth therein set out in the order form (the “Order”) or statement of work. Hypercharge shall provide all equipment, labour and material necessary to perform the Services unless otherwise provided in the Order or statement of work and shall be responsible for determining the method and means by which those resources are deployed to perform the Services consistent with the provisions of this Agreement. Hypercharge will coordinate its activities with and report to a representative to be designated by Customer or the representative’s designee. Specific terms and conditions related to Professional Services and Electric Vehicle Charging Services are set out in Section 3 and 4 of this Agreement.
1.3 Software. Hypercharge, in its sole discretion, may replace the Software with comparable software developed by Hypercharge or another third party.
1.4 Customer Responsibilities.
A. Customer shall comply with all applicable legislation, including but not limited to all safety, health and requirements, rules, regulations and procedures while using the Products and Services on the Customer’s premises. Customer has and shall maintain, during the Term of this Agreement, all applicable licenses and permits.
B. With regards to the Software, Customer is responsible for Users’ compliance with this Agreement and for access to Data or the Software by other persons as a result of Customer’s failure to use reasonable precautions to secure its own systems or credentials for access to the Software. Customer will: (i) use reasonable efforts to prevent unauthorized access to or use of the Software, and notify Hypercharge immediately of any such unauthorized access or use; (ii) comply with all applicable laws, rules and regulations in accessing or using the Software, including data privacy laws and regulations; (iii) cooperate with any reasonable investigation by Hypercharge of any outage, security problem or suspected breach of the Agreement; and(iv) comply with all Hypercharge instructions relating to Customer’s access to or use of the Software, including, but not limited to, instructions specifying specific windows of time for certain types of Data uploading.
1.5 Suspension of Access. Hypercharge may, on written notice, suspend access to the Software without liability if:(i) Hypercharge reasonably believes that the Software is being used in violation of this Agreement; (ii) Customer does not cooperate with reasonable investigation by Hypercharge of any suspected violation of this Agreement; (iii) the Software or Customer Data are accessed or manipulated by a third party without Customer consent; (iv) Hypercharge is required by law, or a regulatory or government body to suspend access to the Software; (v) if any undisputed invoiced amounts remain unpaid by Customer for more than thirty (30) calendar days past the due date; or (vi) there is another event for which Hypercharge reasonably believes that the suspension of access to the Software is necessary to protect the cloud environment in which Customer’s instance of the Software is deployed.
2.1 Fees. Customer will pay all fees for Products, the subscription to the Software, and Professional Services as set forth herein or on the applicable Order(s) and/or SOW(s). Payment obligations are irrevocable and non-cancellable, and any fees paid are non-refundable.
2.2 Additional Costs. In addition to the fees set out in section 2.1, Customer may be responsible for costs incurred by Hypercharge in the course of providing the or Products, the subscription to the Software, and Professional Services as set forth herein. These costs may include, but are not limited to, transaction fees and payment processing fees, utility costs, taxes, and other fees incurred by Hypercharge or as agreed upon by the parties. Where applicable, Hypercharge will invoice the Customer for these costs as set out in in section 2.3.
2.3 Invoices. Hypercharge will invoice Customer for Software subscription fees for the first year of the Subscription Term on the effective date of the relevant Order, and for any subsequent year of the Subscription Term, in advance of each such annual period on a date which will cause such fees to become due and payable the week prior to the commencement of such annual period. Hypercharge will invoice Customer for the Products or Professional Services fees as set forth in the applicable Order or SOW. Invoices will be issued electronically to the ‘invoicing contact’ identified in the applicable Order or SOW.
2.4 Payment. Invoices are payable upon receipt and are past due if not paid within thirty (30) days from the date of invoice. Late payments will be subject to interest of one and one-half percent (1.5%) per month or the maximum rate allowed by applicable law, whichever is less. Customer will pay any reasonable legal fees or other costs incurred by Hypercharge to collect any such delinquent amounts. Customer may not withhold (except as a result of a reasonable and good faith dispute of invoiced amounts communicated to Hypercharge in writing prior to the due date) or offset fees due to Hypercharge for any reason.
2.5 Taxes. Fees are exclusive of Taxes, and Customer will be solely responsible for the payment of all such Taxes (other than Taxes computed on the basis of the net income of Hypercharge). If any applicable law requires Customer to withhold amounts from any payments to Hypercharge hereunder, (i) Customer will effect such withholding and remit such amounts, and (ii) the sum payable by Customer upon which the deduction or withholding is based may be increased to the extent necessary to ensure that, after such deduction or withholding, Hypercharge receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount Hypercharge would have received and retained in the absence of such required deduction or withholding. Upon request, Customer will provide Hypercharge evidence that any withheld amounts have been remitted to the applicable governmental authority.
2.6 Shipping; Risk; Title. If applicable, Customer is responsible for all packing, shipping, or freight charges. The risk in the Products shall pass to Customer F.O.B. upon delivery to Customer as the Product, but title and ownership of the Product shall not pass to Customer until Customer has paid for the same. Receipt by Hypercharge of any cheque, other bill of exchange or any promissory note, shall not be deemed to be payment until the same has been honored or cleared to the credit of Hypercharge’s bank account and until such time shall not prejudice or affect Hypercharge’s rights, power or remedies against Customer and/or the Products.
- PROFESSIONAL SERVICES / ELECTRIC VEHICLE CHARGING SERVICES.
3.1 Professional Services / Electric Vehicle Charging Services. During the Term, Hypercharge will provide the Professional Services and/or Electric Vehicle Charging Services as described in an applicable SOW. The Electric Vehicle Charging Services will include but not limited to the services set out in Section 3.5 of this Agreement. Hypercharge is not responsible for any delay caused by Customer or third parties other than Hypercharge’ agents and contractors retained by Hypercharge for the provision of Professional Services.
3.2 Expenses. Customer will reimburse Hypercharge for all reasonable travel and subsistence expenses computed at the rates specified in the applicable SOW for non-local travel, and airfare, meals and other out-of-pocket expenses. Customer agrees that business class airfare is reasonable for all required travel by Hypercharge personnel that is over eight (8) hours.
3.3 Work Product. A SOW may identify any work product to be prepared as a result of the performance of the Professional Services (“Work Product”). All right, title and interest in and to any Work Product will remain in Hypercharge. Hypercharge grants Customer a non-exclusive, non-sublicensable, non-transferable license to use, execute, reproduce, display, perform and distribute the Work Product, solely during the applicable Subscription Term and for Customer’s own internal business purposes. Customer will reproduce the copyright notice and any other legend of ownership on any copies made under the license granted in this Section 3.3.
3.4 Order Form. Where the Professional Services do not require the creation of Work Product, Customer may purchase such Professional Services from Hypercharge by signing an Order that (i) references this Agreement, and (ii) is accepted by Hypercharge.
3.5 Electric Vehicle Charging Services. Where Hypercharge is providing Electric Vehicle Charging Services to Customer:
A. Installation.At the cost of Customer, Hypercharge will arrange for a third party service provider 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 to the Order Form (collectively, hereinafter the “Designated Areas”). The Property list on 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 provider may be subject to the third party service provider’s terms and conditions. Hypercharge shall not be liable for any damages caused by the third party service provider.
B. Services.Hypercharge will: (i) service and operate the Equipment at the Designated Areas; (ii) maintain and replace the Equipment as necessary to keep the Equipment in proper working order; and (iii) make available technical service support personnel to promptly service the Equipment in a commercially reasonable manner.
C. Access to Equipment.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.
D. Licenses / Permits.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.
E. Claims.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.
F. Vandalism or Faulty Installation.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.
G. 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.
- ELECTRIC VEHICLE CHARGING SERVICES –EQUIPMENT, EXCLUSIVITY, PAYMENTS, AND FEES
This Section 4 will only apply where Hypercharge is supplying the Equipment and Electric Vehicle Charging Services to the Customer.
4.1 Supply. Hypercharge shall supply the Equipment listed in 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 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.
4.8 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.
4.9 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 the Order Form, the new locations shall be added to the list of the Designated Areas in the Order Form, and all terms and conditions of this Agreement shall apply to the Additional Equipment.
4.10 Hypercharge shall have the sole determination on the appropriate ratio of Equipment in a Designated Area under this Agreement.
4.11 Collection of Revenue. Hypercharge will record the Equipment usage and collect all revenue generated by the Equipment.
4.12 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”).
4.13 Hypercharge shall issue the Revenue Payment to Customer 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.
4.14 If the Gross Revenues do not cover the Service Fees incurred in a given month, such unpaid Fees will accrue to the following month.
4.15 Customer waives all claims for any additional payments beyond the Revenue Payment.
4.16 Customer agrees that 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.
4.17 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.
4.18 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). 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.
- REPRESENTATIONS AND WARRANTIES.
5.1 Authorization; Execution. Each Party hereby represents to the other that (a) it has full right, power and authority to enter into this Agreement and to perform all of its obligations hereunder; (b) this Agreement constitutes its valid and binding obligation, enforceable against it in accordance with its terms; and (c) its execution, delivery and performance of this Agreement will not result in a breach of any material agreement or understanding to which it is a party.
5.2 Professional Services / Electric Vehicle Charging Services. Hypercharge warrants that all Professional Services and/or Electric Vehicle Charging Services will be performed in a professional manner. If within thirty (30) days of the completion of any Services, Customer notifies Hypercharge that Professional Services and/or Electric Vehicle Charging Services were not performed as warranted in this Section 5.2 and provides details regarding such deficiency, then Hypercharge will re-perform deficient Professional Services and/or Electric Vehicle Charging Services at no charge to Customer. Such re-performance will be Customer’s sole and exclusive remedy and Hypercharge’ sole obligation under this warranty.
5.3 Warranty Disclaimers. The warranties expressly set forth in this Section 5 are the sole and exclusive warranties given by Hypercharge and to the extent allowed by applicable law, Hypercharge makes no other warranties, express, implied or statutory, and expressly disclaims any implied warranties of merchantability, fitness for a particular purpose, satisfactory quality and non-infringement. Hypercharge does not warrant that (A) the Software is error free, (B) Customer will be able to use the Software without problems or interruptions, or (C) the Software and the cloud environment where the Software is deployed are not susceptible to intrusion, attack or computer malware infection.
6.1 Customer Indemnification. Customer will indemnify and hold Hypercharge harmless from Losses resulting from any claims brought by unaffiliated third parties against Hypercharge (i) alleging that Customer Data, or Customer’s use of the Software in breach of this Agreement, either infringes any intellectual property rights of any third party or violates applicable law, or (ii) related to any acts of negligence (including strict liability), gross negligence or willful misconduct of Customer, its affiliates and their respective employees, customers, subcontractors, vendors and agents (the “Customer Parties”), violation of any law or regulation by the Customer Parties, breaches or misrepresentations with respect to the Agreement.
6.2 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 defense 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 client/full indemnity basis or the ability for Customer to, at its sole expense, participate in the defense 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 defense of Claims which may be ongoing, pay to Hypercharge the amount of that demand.
6.3 Notwithstanding any other provision of this Agreement, where Customer has conduct of the defense 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.
- LIMITATION OF LIABILITY.
7.1 Exclusion. in no event will either Party be liable to the other with respect to its obligations under this Agreement or otherwise under any theory, including contract and tort, for any loss of profits, cost of cover, indirect, special or incidental, consequential, exemplary, or punitive damages, including (but not limited to) damages for loss of data, loss of use, loss of goodwill or loss of business, even if such Party has been advised of the possibility of such damages. The foregoing disclaimer will not apply to the extent prohibited by law.
7.2 Liability Limit. Notwithstanding anything to the contrary in this Agreement, Hypercharge’s liability to Customer for any damages arising out of or related to this Agreement will be limited to the fees paid by Customer to Hypercharge under the applicable Order or SOW in connection with which liability arises during the twelve (12) month period preceding the incident giving rise to liability. The foregoing limitation will not apply to the extent prohibited by law.
- PROPRIETARY INFORMATION.
8.1 Intellectual Property. Customer retains all right, title and interest in and to all Customer Data. Customer grants Hypercharge a worldwide, non-exclusive, irrevocable, royalty-free, perpetual license to (i) aggregate Customer Data with other data to create Anonymous Aggregated Data; and (ii) use, modify, distribute, and create derivative works of Anonymous Aggregated Data. Hypercharge will utilize Anonymous Aggregated Data to benchmark, operate and improve Hypercharge business, and market its products and services. Hypercharge retains all right, title, interest and intellectual property and proprietary rights in and to the Software, Operational Data, and Professional Services, including all copies and derivative works thereof (by whomever produced), any and all suggestions, recommendations, enhancement requests, or other feedback provided by Customer in connection with this Agreement. Customer will not acquire any rights therein by implication, estoppel or otherwise.
(A) Receiving Party will use Confidential Information solely in performance of this Agreement, and will not disclose any Confidential Information other than as permitted or required for discharging its obligations under this Agreement, except with Disclosing Party’s prior written permission. Receiving Party will protect the confidentiality of Confidential Information by exercising the same degree of care with which it protects its own information of a similar nature, but no less than a reasonable degree of care, and will limit the use of, and access to, Confidential Information to those individuals whose use or access is necessary in order to perform under this Agreement.
(B) Confidential Information will not be deemed proprietary or confidential, and Receiving Party will have no obligation with respect to such information, where the information: (i) was known to Receiving Party prior to receiving any Confidential Information from Disclosing Party as evidenced by written documentation; (ii) is or becomes publicly known through no wrongful act or omission of Receiving Party; or (iii) was received by Receiving Party without breach of this Agreement from a third party without restriction as to the use and disclosure of the information. Receiving Party may also disclose Confidential Information if, in the opinion of Receiving Party’s counsel, disclosure is required by governmental order, decree, regulation, or rule; provided, however, that Receiving Party will provide prompt written notice of any such obligation, and reasonable assistance to Disclosing Party prior to disclosure of any Confidential Information to allow Disclosing Party to seek an appropriate protective order or other equitable relief.
(C) Upon request by Customer made within thirty (30) days after the effective date of termination of this Agreement or expiration of any Subscription Term, Hypercharge will make available to Customer for download a file of Customer Data in the current format in which it is stored in the Software. After such 30-day period, Hypercharge will have no obligation to maintain or provide any Customer Data and will thereafter (unless legally prohibited) delete all Customer Data in its systems or otherwise in its possession or under its control.
(D) Notwithstanding anything to the contrary in this Agreement relating to the return of Confidential Information, Receiving Party shall be entitled to retain (i) one secure copy for legal archival purposes to evidence its compliance with the terms of this Agreement and (ii) copies of electronically exchanged Confidential Information held in backup systems in accordance with its routine information technology backup process; provided that, in each case, such retained Confidential Information remains subject to the confidentiality obligations set forth herein.
9.1 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 standardindustry practice.
9.2 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 Provider at least 30 calendar days prior to any material change or cancellation of the policy(ies). Provider, 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 Provider or its subcontractors to perform any part of this Agreement.
(B) 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.
10.1 Term and Termination for Convenience.
- This Agreement shall commence on the Effective Date and shall continue, unless terminated earlier in accordance with this Agreement (the “Term”).
- This Agreement, as applicable, may be terminated by Hypercharge for convenience upon at least thirty (30) days’ prior written notice to the other Party. In the event of termination, Customer shall pay Hypercharge for all Services properly performed and all conforming Products delivered by Hypercharge up to the effective date of termination and Hypercharge shall refund to Customer a pro-rated amount of any prepaid amounts.
10.2 Termination. An Order or SOW issued hereunder will terminate if either Party (i) fails to perform any of its material obligations thereunder and (ii) fails to cure such breach within thirty (30) days after written notice from the non-breaching Party(or if such breach cannot be corrected through the exercise of reasonable diligence within such thirty (30)-day period, if the breaching Party does not commence to correct such failure within such thirty (30)-day period and thereafter diligently prosecute same to completion). Such written notice shall specify in detail the alleged material breach. For the avoidance of doubt, any Order or SOW issued hereunder and not terminated pursuant to this Section 10.2 shall remain in full force and shall continue for the term stated therein (unless otherwise terminated in accordance with this Agreement).
10.3 Immediate Termination. Either Party may immediately terminate this Agreement by giving written notice of such termination to the other Party on the occurrence of the following events: (i) the other Party becomes the subject of a voluntary or involuntary petition in bankruptcy or any petition for similar relief; (ii) the appointment of a receiver or liquidator for the other Party’s property; (iii) an assignment by the other Party for the benefit of its creditors or the acknowledgment by the other Party that it is unable to meet its obligations on the maturity thereof; (iv) the other Party ceases to conduct business in the normal course; or (v) any breach of Section 1.4.
10.4 Effect of Expiration or Termination. Upon termination or expiration of an Order, all Software subscription(s) granted thereunder will terminate immediately and, where an Order is terminated as a result of an uncured breach by Hypercharge.
10.5 Termination Assistance Professional Services. Except where the subscription is terminated by Hypercharge for cause attributable to Customer, Hypercharge will make available to Customer, during any applicable notice period and for a reasonable period of time after the expiration or termination of the subscription, such termination assistance Professional Services as may be reasonably requested by Customer to facilitate the orderly transition of Hypercharge responsibilities hereunder to Customer or its designee. Such Professional Services will be provided pursuant to an SOW under then-current fees for similar Professional Services.
10.6 Survival. Except to the extent expressly provided to the contrary herein, the obligation of Customer to pay in full any outstanding fees and other monies due and Sections 2.5, 6, 7, 8, and 11.2 will survive the termination or expiration of the Agreement.
11.1 Defined Terms.
(a) “Agreement” means this Master Products and Services Agreement, together with all Orders and SOWs. The terms of the Agreement will control over any different or additional terms of any purchase order submitted by Customer. The terms of an SOW or Order will have precedence over any conflicting terms in this Agreement, but only with respect to the subject matter of such SOW or Order.
(b) “Anonymous Aggregated Data” means Customer Data that has been aggregated with other data and anonymized to exclude data that would enable the identification of any individual, company, or organization. Anonymous Aggregated Data will not include Customer Confidential Information or otherwise be in any way linked to or reference Customer.
(c) “Confidential Information” means any data or information in any form that is disclosed to either Party (“Receiving Party”) by or on behalf of the other Party (“Disclosing Party”) and that either (i) relates to Disclosing Party’s proprietary software, information technology, business plans, forecasts, customer information, marketing information, trade secrets and/or financial performance, (ii) is identified as proprietary or confidential in writing at the time of disclosure (or is so identified at the time of oral disclosure and subsequently confirmed in writing), or (iii) is Customer Data.
(d) “Customer Affiliate” means any company or legal entity that controls, is controlled by, or is controlled by an entity that controls Customer. All derivatives of the word “control” mean the ownership directly or indirectly of more than fifty percent (50%) of the voting rights representing the right to vote in the election of directors or other managing authority in a company or other legal entity.
(e) “Customer Data” means all electronic data or information submitted on behalf of Customer for use in the Software.
(f) “Designated Areas” shall have the meaning as set out in section 3.5(A).
(g) “Electric Vehicle Charging Services” means the services provided by Hypercharge to Customer related to the supply, operation, deployment, installation, and servicing of the Equipment set out in the Order Form, which Customer agrees to install on the property addresses listed in the Order Form, under the terms and conditions hereof throughout the Term.
(h) “EV” means electric vehicle.
(i) “Equipment” means electric vehicle charging equipment that Hypercharge supply, operate, deploy, install, or service for the Customer.
(j) “Losses” means costs incurred by the indemnifying Party for the defense of an indemnified claim, the amount of a final judgement (including any award of fees and expenses) rendered against an indemnified Party, or the amount of a settlement entered into by the indemnifying Party, or with the indemnifying Party’s consent.
(k) “Net Revenues” are defined as the gross revenues generated from the Equipment through EV charging fees (“Gross Revenues”), minus: (i) any and all applicable taxes, (ii) transaction fees and payment processing fees paid by Hypercharge, (iii) utility costs paid by Hypercharge; (iv) other expenses or 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”).
(l) “Operational Data” means data derived from the performance, use, and operation of the Software, including the number of records in the Software, and the number and types of transactions, configurations, and reports processed in the Software.
(m) “Personal Data” means any Customer Data relating to an identified or identifiable natural person.
(n) “Professional Services” mean the implementation, strategic consulting or other professional services (but excluding support) Hypercharge may perform for Customer pursuant to an SOW.
(o) “Property” or “Properties” means the property listed in the Order Form where the Customer agrees to have Hypercharge install the Equipment.
(p) “Proprietary Data” shall have the meaning set out in Section 4.2.
(q) “Revenue Payment” shall have the meaning set out in Section 4.12.
(r) “SOW” or “Work Order” means a work order for Professional Services (or an Order that includes Professional Services) executed by the Parties, or any change order referencing an SOW or a Work Order and executed by the Parties. No SOW or Work Order is binding upon either Party unless signed by both Parties, and neither Party will be liable to the other with respect to unsigned SOWs or Work Orders.
(s) “Subscription Term” means the period during which Customer has paid for and is entitled to receive the subscription to the Software. The Subscription Term commences on the effective date of the relevant Order (unless otherwise specified therein) and continues for the period specified in such Order.
(t) “Taxes” means any and all of the following: sales, use or privilege taxes, excise or similar taxes, value added taxes, import and export taxes, duties or assessments, shipping, handling, insurance, brokerage, and other related charges levied by any jurisdiction (including penalties and interest) and any costs associated with the collection and withholding of any of the foregoing items.
(u) “Users” mean individuals who are authorized by Customer to use the Software, subject to the terms of this Agreement, and have been supplied user identifications and passwords by Customer. Where applicable, the number of Users authorized to use the Software will be set forth on the relevant Order.
11.2 Governing Law; Venue. This Agreement will be exclusively governed and construed in accordance with the laws of the Province of British Columbia without regard to the conflicts of law principles. The courts located in Vancouver, British Columbia will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement, and each Party consents to such exclusive jurisdiction. Each Party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods (UNCISG) and the Uniform Computer Information Transactions Act (UCITA) are specifically disclaimed in their entirety.
11.3 Injunctive Relief. The Parties agree that a breach of Section 8 would result in irreparable and continuing damage for which there will be no adequate remedy at law, and each Party will be entitled to injunctive relief without the need for posting bond and/or a decree for specific performance, and such other relief as may be proper.
11.4 Force Majeure. Neither Party will be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder, other than for payment obligations hereunder, on account of circumstances beyond such Party’s reasonable control, including, without limitation, strikes, labor conditions, shortages, riots, insurrection, civil unrest, war or terrorism, governmental action, fires, flood, earthquakes, storms, explosions, acts of God, denial of service attacks, telecommunications, computer, internet service provider or hosting facility failures or hardware or software or power systems not within such Party’s possession or control.
11.5 Publicity. Neither Party will disclose the terms of this Agreement without prior written consent of the other Party. Hypercharge may refer to Customer as Hypercharge’ customer and use Customer’s logo in communications and presentations given to individual third parties, as well as in communications and customer lists generally distributed or made available provided that the use of such logo will be subject to Customer’s corporate logo guidelines. In addition, Customer agrees, at Hypercharge’ sole cost and expense, to the issuance of a mutually agreed upon press release and sharing of solution overview concerning Customer’s Software subscription with individual third parties. Except as provided above, neither Party will utilize the other’s trademarks without express written permission.
11.6 Notices. All notices under this Agreement must be sent in a manner that confirms delivery to the Party to receive such notice at the addresses specified below or at such other address as either Party may specify from time to time by written notice in accordance herewith. Notices given hereunder will be deemed to have been received as of the date shown on the confirmation of delivery.
(a) If to Customer, to the address specified in the Order Form, or as otherwise provided in writing to Hypercharge.
(b) If to Hypercharge, to: Suite 310, 1008 Homer Street, Vancouver, British Columbia, V6B 2X1
11.7 No Assignment. Neither Party may assign this Agreement, by operation of law or otherwise, in whole or in part, without the other Party’s prior written consent (which will not be unreasonably withheld). Subject to the foregoing, the Agreement will be binding on, inure to the benefit of, and enforceable by and against the Parties and their respective successors and permitted assigns.
11.8 Relationship of the Parties. This Agreement is not intended nor will be construed to confer upon or give to any party other than Customer and Hypercharge any rights, remedies or other benefits. The Parties are independent contractors. Nothing in this Agreement is intended, or should be construed, to create a partnership, agency, joint venture or employment relationship between the Parties.
11.9 No Waiver. No waiver, implied or expressed, by either Party or any right or remedy for any breach by the other Party of any provision of this Agreement will be deemed or construed to be a waiver of any succeeding breach of such provision or as a waiver of the provision itself.
11.10 Headings. The headings in this Agreement are provided for convenience only and will not control the interpretation of this Agreement.
11.11 Severability. If any of the provisions of this Agreement are determined to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such provisions will be severed from the Agreement, and the remaining provisions will remain in full force and effect.
11.12 Complete Agreement. This Agreement constitutes the entire agreement between the Parties pertaining to the subject matter hereof and all other prior or contemporaneous agreements, understandings, representations, warranties, and writings are superseded hereby. An amendment to this Agreement will only be effective if reduced to writing and executed by authorized officers of the Parties.
11.13 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.