HomeMy WebLinkAboutElectron Charger, LLC/STREET/$825 quarterly/ Electron EV Chargers (Civic_Square) ASA
1
ADDENDUM TO CHARGING AS A SERVICE AGREEMENT
This Addendum is entered into by and between the City of Carmel, Indiana by and through its Board of
Public Works and Safety (the “City”) and Electron Charger, LLC, a business entity authorized to do business in the
State of Indiana (“the Vendor”).
The purpose of this Addendum is to add and clarify certain terms and conditions set forth in the attached Charging As
a Service Agreement prepared by the Vendor (the “Agreement”). Any inconsistency, conflict, or ambiguity between
this Addendum and the Agreement shall be resolved by giving precedence and effect to this Addendum.
1. ACKNOWLEDGMENT, ACCEPTANCE:
Vendor acknowledges that it has read and understands this Addendum, and agrees that its execution of
same constitutes its acceptance of all of the Addendum’s terms and conditions.
2. TIME AND PERFORMANCE:
This Addendum and the Agreement shall become effective as of the last date on which a party hereto
executes same (“Effective Date”), and both parties shall thereafter perform their obligations hereunder in a
timely manner or as specified in the Agreement. Time is of the essence of this Addendum and the
Agreement.
3. LIENS:
Vendor shall not cause or permit the filing of any lien on any of City’s property. In the event any such lien is
filed and Vendor fails to remove such lien within ten (10) days after the filing thereof, by payment or bonding,
City shall have the right to pay such lien or obtain such bond, all at Vendor’s sole cost and expense.
4. NON-DISCRIMINATION:
Vendor represents and warrants that it and all of its officers, employees, agents, Vendors and sub-Vendors
shall comply with all laws of the United States, the State of Indiana and City prohibiting discrimination against
any employee, applicant for employment or other person in the provision of any Goods and Services
provided under the Agreement with respect to their hire, tenure, terms, conditions and privileges of
employment and any other matter related to their employment or subcontracting, because of race, religion,
color, sex, handicap, national origin, ancestry, age, or disabled veteran status.
5. IRAN CERTIFICATION: Pursuant to I.C. § 5-22-16.5, the Vendor shall certify that, in signing this document,
it does not engage in investment activities within the Country of Iran.
6. E-VERIFY:
If Vendor has any employees in the United States of America, pursuant to I.C. § 22-5-1.7 et seq., as the
same may be amended from time to time, and as is incorporated herein by this reference (the “Indiana E-
Verify Law”), Vendor will be required to enroll in and verify the work eligibility status of its newly-hired
employees using the E-Verify program, affirming that it is enrolled and participating in the E-Verify program
and does not knowingly employ unauthorized aliens. In support of the Affidavit, Vendor shall provide the City
with documentation indicating that it has enrolled and is participating in the E-Verify program. Should Vendor
subcontract for the performance of any work under and pursuant to this Agreement, it shall fully comply with
the Indiana E-Verify Law as regards each such sub-contractor. Should the Vendor or any sub-contractor
violate the Indiana E-Verify law, the City may require a cure of such violation and thereafter, if no timely cure
is performed, terminate this Agreement in accordance with either the provisions hereof or those set forth in
By Sergey Grechukhin at 11:22 am, Feb 02, 2024
DocuSign Envelope ID: C4DA2F55-F613-4B86-99AF-C87EFB63BAD3
2
the Indiana E-Verify Law. The requirements of this paragraph shall not apply should the E-Verify program
cease to exist.
7. PAYMENT TERMS:
Upon receipt of the invoice for the services provided, as outlined in the Agreement, the City shall pay Vendor
for such goods and services within thirty-five (35) days after the date of City’s receipt of Vendor's invoice
detailing same, so long as and to the extent such goods and services are not disputed, are in conformance
with the specifications set forth in the Agreement and Vendor has otherwise performed and satisfied all the
terms and conditions of this Addendum and the Agreement. All payments, fees, and any late payments shall
be pursuant to Indiana Prompt Payment Statute; Ind. Code 5-17-5- et al.
8. NON-APPROPRIATION:
In the event no funds are appropriated for the Agreement or its renewal in 2024 and years
thereafter budgets or any subsequent budgets by the City’s legislative body, the City, upon
providing written notice to Vendor, has the right to terminate the Agreement without penalties of
any sort.
9. REQUIRED DISCLOSURE:
In addition to any exceptions to disclosing of confidential information referenced in the Agreement, the City,
upon consulting and providing notice to Vendor, may disclose such confidential information if such disclosure
is required by any federal or state law. The City shall not disclose any information that would be deemed
proprietary or constitute a trade secret unless ordered so by a court of competent jurisdiction.
10. DEFAULT:
In the event Vendor: (a) repudiates, breaches or defaults under any of the terms or conditions of this
Addendum or the Agreement, including Vendor’s warranties; (b) fails to provide the goods and services as
specified in this Addendum and the Agreement; (c) fails to make progress so as to endanger timely and
proper provision of the goods and services and does not correct such failure or breach within five (5)
business days (or such shorter period of time as is commercially reasonable under the circumstances) after
receipt of notice from the City specifying such failure or breach; or (d) becomes insolvent, is placed into
receivership, makes a general assignment for the benefit of creditors or dissolves, each such event
constituting an event of default hereunder, City shall have the right to (1) terminate all or any parts of the
Agreement and this Addendum, without liability to Vendor; and (2) exercise all other rights and remedies
available to City at law and/or in equity.
11. INDEMNIFICATION:
It is specifically agreed and acknowledged that Paragraph 6.1 of the Agreement is stricken and replaced by
the following language: Each Party shall indemnify, defend and hold the other Party harmless from all claims,
causes of action, losses, liabilities, costs and expenses, including reasonable attorney fees and other related
costs, that such Party may suffer, sustain or become subject to as a result of any failure, neglect, or refusal
to perform all of such Party’s obligations under the Agreement or as a result of the Indemnifying Party’s gross
negligence or willful misconduct in performance of its obligations under the Agreement. This
indemnification obligation shall survive the termination of this Agreement.
12. INSURANCE:
Vendor shall procure and maintain in full force and effect during the term of this Agreement, with an insurer
licensed to do business in the State of Indiana, such insurance as is necessary for the protection of the City
and Vendor from all claims for damages under any workers’ compensation, occupational disease and/or
unemployment compensation act; for bodily injuries including, but not limited to, personal injury, sickness,
DocuSign Envelope ID: C4DA2F55-F613-4B86-99AF-C87EFB63BAD3
DocuSign Envelope ID: C4DA2F55-F613-4B86-99AF-C87EFB63BAD3
2/7/2024
2/7/2024
2/7/2024
2/7/2024
129044680v5
1
CHARGING AS A SERVICE AGREEMENT
This Charging as a Service Agreement (this “Agreement”) is made and entered into as of the date set forth
on the signature page below (the “Effective Date”) by and between Electron Charger, LLC, an Indiana limited
liability company (“Operator”), and the person or entity identified on the signature page below (“Customer”).
Customer and Operator may be referred to each as a “Party” and collectively as the “Parties”.
RECITALS
WHEREAS, Operator is in the business of installing and managing electric vehicle (“EV”) charging
stations (“Charging Stations”) pursuant to a Charging Service;
WHEREAS, Operator shall install one or more Charging Stations at one or more Locations, as directed by
Customer;
WHEREAS, Operator shall provide the Charging Service to the End User at the Charging Stations.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants, promises, and obligations set forth herein,
and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the
Parties agree as follows:
1. DEFINITIONS. Capitalized terms have the meanings set forth in this Section 1 unless otherwise defined:
“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of
violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal,
administrative, regulatory or other, whether at law, in equity or otherwise.
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control with, such Person.
“Charging Service” means a charging service arrangement with the EV drivers.
“Customer Support” means the Operator’s customer support programs available to Customer and End User
as detailed on Exhibit A hereto.
“End User” means the EV driver utilizing the Charging Station to charge its EV.
“Damages” means any injury, wound, wrong, hurt, harm, fee, damages, cost, expense, expenditure, or loss of
any nature, including, but not limited to: (i) injury or damage to any property or right; and (ii) injury, damage
or death to any person or entity, (iii) attorneys’ fees, witness fees, expert witness fees and expenses; and (iv) all
other litigation costs and expenses.
“Governmental Authority” means any federal, state, local or foreign government or political subdivision
thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated
organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that
the rules, regulations or orders of such organization or authority have the force of Law), or any arbitrator, court
or tribunal of competent jurisdiction.
“Governmental Order” means any order, writ, judgment, injunction, decree, stipulation, award or
determination entered by or with any Governmental Authority.
DocuSign Envelope ID: C4DA2F55-F613-4B86-99AF-C87EFB63BAD3
129044680v5
2
“Intellectual Property Rights” means all industrial and other intellectual property rights comprising or relating
to Operator’s owned or licensed: (a) Patents; (b) Trademarks; (c) internet domain names, whether or not
Trademarks, registered by any authorized private registrar or Governmental Authority, web addresses, web
pages, website, and URLs; (d) works of authorship, expressions, designs and design registrations, whether or
not copyrightable, including copyrights and copyrightable works, software and firmware, data, data files,
proprietary processes and formulae, all source and object code, algorithms, architecture, structure, display
screens, layouts, inventions, and databases and other specifications and documentation; (e) Trade Secrets; and
(f) all industrial and other intellectual property rights, and all rights, interests and protections that are associated
with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each
case whether registered or unregistered and including all registrations and applications for, and renewals or
extensions of, such rights or forms of protection pursuant to the Laws of any jurisdiction throughout in any part
of the world.
“Law” means any statute, law, ordinance, regulation, rule, code, constitution, treaty, common law,
Governmental Order or other requirement or rule of law of any Governmental Authority.
“Location” means a Customer’s location of real property where the Charging Stations will be installed.
“Revenue” means Operator’s gross revenue associated with operating the Charging Stations at the locations.
“Patents” means all patents (including all reissues, divisionals, provisionals, continuations and continuations-
in-part, re-examinations, renewals, substitutions and extensions thereof), patent applications, and other patent
rights and any other Governmental Authority-issued indicia of invention ownership (including inventor’s
certificates, petty patents, and patent utility models).
“Permits” means permits, licenses, franchises, approvals, authorizations, registrations, certificates, variances
and similar rights obtained or required to be obtained, from any Governmental Authority.
“Person” means any individual, partnership, corporation, trust, limited liability entity, unincorporated
organization, association, Governmental Authority or any other entity.
“Personnel” of a Party means any agents, employees, contractors or subcontractors engaged or appointed by
such Party.
“Representatives” means a Party’s Affiliates and each of their respective Personnel, officers, directors,
partners, shareholders, attorneys, third-party advisors, successors and permitted assigns.
“Site Preparation” means performing any work necessary for a Location to install a Charging Station, as
further detailed on Exhibit B hereto.
“Trademarks” means all rights in and to US and foreign trademarks, service marks, trade dress, trade names,
brand names, logos, symbols, trade dress, corporate names and domain names and other similar designations
of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in
each case whether registered or unregistered and including all registrations and applications for, and renewals
or extensions of, such rights and all similar or equivalent rights or forms of protection in any part of the world.
“Trade Secrets” means all inventions, discoveries, trade secrets, business and technical information and know-
how, databases, data collections, patent disclosures and other confidential and proprietary information and all
rights therein.
DocuSign Envelope ID: C4DA2F55-F613-4B86-99AF-C87EFB63BAD3
129044680v5
3
2. AGREEMENT TERM; PAYMENT.
2.1. Term. This Agreement shall commence on the Effective Date and continue in effect for four (4)
years, unless otherwise terminated in accordance with Sections 2.2 and 2.3 (the “Initial Term”). Thereafter,
this Agreement shall automatically renew for additional three (3) year terms (each, a “Renewal Term” and
together with the Initial Term, the “Term”), unless either Party provides written notice of intent to not renew
at least ninety (90) days prior to the expiration of a Renewal Term.
2.2. Termination by Customer.
(a) This Agreement may be immediately terminated by Customer upon prompt written notice (i)
if Operator is in material breach of any of its obligations under this Agreement, and has not
cured such breach within thirty (30) days of the date of its receipt of written notice thereof,
or (ii) Operator becomes the subject of a petition in bankruptcy or any other proceeding
related to insolvency, receivership, liquidation or an assignment for the benefit of creditors
and Operator has not cured the same within sixty (60) days after written notice thereof.
(b) If Customer desires to terminate this Agreement prior to the end of the Term, Customer shall
provide Operator with no less than ninety (90) days prior written notice and shall pay the
applicable termination fee identified on Exhibit C hereto.
(c) Upon any termination of this Agreement, Customer hereby grants Operator the right, to enter
the Locations for the purpose of removing the Charging Stations and any equipment owned
by Operator and any other ancillary property of Operator relating hereto. Upon termination
of this Agreement, Operator will no longer be bound to deliver the Customer Support or any
maintenance of any Charging Station. Customer agrees that it shall not interfere with, and
will cause its Representatives not to interfere with, Operator in conjunction with the service,
maintenance, or removal of the Charging Stations, or in any other way interfere with
Operator’s responsibilities under this Agreement.
2.3. Termination by Operator. This Agreement may be immediately terminated by Operator: (i) if
Customer is in material breach of any of its obligations under this Agreement and has not cured such breach
within thirty (30) days (or within five (5) days in the case of any payment default) of Customer’s receipt of
written notice thereof; (ii) if Customer becomes the subject of a petition in bankruptcy or any other proceeding
related to insolvency, receivership, liquidation or an assignment for the benefit of creditors; or (iii) if Operator
determines, in its sole discretion, that the Charging Stations are unsafe, or have been or could be subject to
vandalism or other occurrences presenting a safety concern to the Charging Stations or Operator.
2.4. Subscription Fee. If applicable, Customer will receive invoices for any monthly service fees, as
detailed on Exhibit D hereto, specifying their due dates to be paid. All invoices shall be paid within thirty (30)
days of Customer’s receipt thereof. Invoices not paid when due are subject to interest at the rate of one and
one-half percent (1.5%) per month or, if less, the highest rate allowed under applicable law. If any amount
owing by Customer under this Agreement is more than thirty (30) days overdue, Operator may, without
otherwise limiting Operator’s rights or remedies, terminate the subscription, suspend the use of the Charging
Service, and/or enter onto Customer’s premise for the purpose of removing the Charging Stations. Customer
shall be liable for all costs, including reasonable attorneys’ fees and Charging Station recovery fees, incurred
by Operator in connection with its efforts to collect any past due amounts.
2.5. Revenue Share. During the Term, Operator shall charge all charging costs with the End User and
Operator shall pay Customer, on a quarterly basis, a revenue share payment equal to 85% of the gross revenue
payable within thirty (30) days after the end of each quarter, evidenced by a written statement.
DocuSign Envelope ID: C4DA2F55-F613-4B86-99AF-C87EFB63BAD3
129044680v5
4
3. CHARGING STATIONS.
3.1. Charging Stations; Right of First Refusal. The Charging Services will be provided through the
Charging Stations at each Location. Customer hereby grants Operator the right of first refusal to install and
operate any new Charging Stations at the Civic Square parking garage.
3.2. Ownership of Charging Station. The Charging Stations are and shall remain the personal property
of Operator, regardless of the manner in which they may be attached to any other property. Customer shall
not permit any levy, lien or other legal process to be attached to the Charging Stations, and shall immediately
notify Operator if any of the foregoing shall occur. Customer acknowledges that, for purposes of the Uniform
Commercial Code, the Charging Stations are provided to Customer pursuant to a subscription service, and not
a secured financing. Operator may make such filings under the Uniform Commercial Code, and in such
jurisdictions, as it deems necessary in its sole discretion.
3.3. Site Preparation. If applicable, any Site Preparation that needs to be completed by Customer shall
be listed and detailed on Exhibit B hereto.
3.4. Installation. Operator shall use customer’s existing infrastructure and will be solely responsible for
the installation of the units including (mounting to wall, making terminal connections, provisioning,
commissioning, and testing all units.)
3.5. Maintenance of Charging Stations.
(a) Operator shall ensure that the Charging Stations function in accordance with published
specifications during the Term. In the event Customer knows of or becomes aware of any
malfunctioning Charging Station, Customer shall promptly notify Operator of such
malfunction. Customer shall not directly or indirectly service, repair, modify, or adjust the
Charging Stations.
(b) Operator shall be responsible for all maintenance of the Charging Stations. Operator’s
obligations under this Section 3.5 do not include repairing, replacing, monitoring, or servicing
anything other than the Charging Stations. For example, Operator will not configure, repair,
replace, or otherwise maintain repeaters installed by Customer as part of the Site Preparation.
(c) Customer agrees that it shall not interfere with, or cause its Representatives to interfere with,
Operator’s performance of maintenance services, or in any other way interfere with
Operator’s responsibilities under this Agreement.
(d) Customer agrees to provide Operator or its service partners with access, during normal
business hours (9:00 a.m. to 5:00 p.m., Monday to Friday), to the Charging Stations in order
to perform required maintenance work. In addition, Customer shall designate in writing a
Customer manager who shall act as Customer’s sole liaison with Operator for those matters
covered by this Agreement. Customer shall update Operator in writing, in the event it wishes
to designate a new Customer manager.
(e) Customer agrees, at its own expense and at all times during the Term, to keep public areas,
parking spaces, streets and sidewalks at the Locations and appurtenant to the Charging
Stations reasonably free of debris and rubbish and in good repair and condition.
DocuSign Envelope ID: C4DA2F55-F613-4B86-99AF-C87EFB63BAD3
129044680v5
5
4. CLOUD SERVICES.
4.1. Software; Ownership of Content. During the Term, Operator shall make available to End User its
cloud-based platform that provides the Charging Services (the “Software”), and, during the Term, Operator
grants to Customer a revocable, non-exclusive, worldwide, limited, royalty-free, non-sublicensable license to
use and access the Software. To the extent permitted by applicable Law, Operator shall own and hold all right,
title, and interest in and to the following:
(a) Content, including all data collected or maintained by Operator in the operation of the
Software, the Operator Network (as defined below), the Charging Services, and the Charging
Stations; and
(b) Operator property, including (i) the Charging Services, (ii) all data generated or collected by
Operator in connection with the operation of the Charging Services and Charging Stations;
(iii) Operator’s Intellectual Property Rights; and (iv) all other Operator-supplied material
developed or provided by Operator for End Users in connection with the Charging Services.
4.2. Operation of the Software. Operator agrees to provide and shall be solely responsible for: (i)
provisioning and operating, maintaining, administering and supporting the open-platform network of EV
charging stations and the Software that is operated and maintained by Operator (the “Operator Network”);
(ii) provisioning and operating, maintaining, administering and supporting the applications offered on the
Operator Network, including the Software; and (iii) operating the Operator Network in compliance with all
applicable Laws. Operator will protect the confidentiality and security of all personally identifiable
information in accordance with all applicable Laws.
4.3. Customer’s Use Restrictions and Limitations. Customer shall not:
(a) sell, resell, license, rent, lease or otherwise transfer the Charging Services or any data
collected or maintained by Operator in connection with the operation of the Charging Services
therein to any third party;
(b) interfere with or disrupt the Charging Services, the Operator Network, servers, or networks
connected to the Charging Services, or violate any requirements, procedures, policies, or
regulations of networks connected to the Operator Network;
(c) attempt to gain unauthorized access to the Operator Network or the Charging Services or
related systems or networks or any data contained therein, or access or use the Charging
Services through any technology or means other than those provided or expressly authorized
by Operator;
(d) reverse engineer, decompile, or otherwise attempt to extract the source code of the Charging
Services, including, without limitation, the Charging Stations and Software, or any part
thereof;
(e) create derivative works based on the Operator Network, the Charging Services, or any of
Operator’s Trademarks, and other distinctive brand features and designations used in
connection with Operator or the Charging Stations (the “Operator Marks”) and all other
Operator-supplied material developed by Operator;
(f) remove, conceal, or cover the Operator Marks or any other markings, labels, legends,
trademarks, or trade names installed or placed on the Charging Stations or any peripheral
equipment for use in connection therewith;
DocuSign Envelope ID: C4DA2F55-F613-4B86-99AF-C87EFB63BAD3
129044680v5
6
(g) access the Operator Network or any part of the Charging Services for any competitive purpose
or for any improper purpose whatsoever, including, without limitation, in order to build a
competitive product or service or copy any features, functions, interface, graphics, or “look
and feel”;
(h) use any robot, spider, site search/retrieval application, or other device to retrieve or index any
portion of the Charging Services or collect information about End Users for any unauthorized
purpose;
(i) upload, transmit or introduce any malicious code to the Software or the Charging Stations; or
(j) use the Charging Services to upload, post, display, transmit or otherwise make available (i)
any inappropriate, defamatory, obscene, or unlawful content; (ii) any content that infringes
any Patent, Trademark, or other Intellectual Property Rights of any third party; (iii) any
messages, communication or other content that promotes pyramid schemes, chain letters,
constitutes disruptive commercial messages or advertisements, or is prohibited by applicable
Laws or this Agreement.
4.4. Limited License by Customer. Customer hereby grants to Operator a non-assignable, non-
transferable, and non-exclusive license to use the Customer’s property solely in accordance with the terms of
this Agreement (including without limitation all limitations and restrictions on such use) to the extent
necessary for Operator to provide the Charging Services. Operator may utilize the various Trademarks and
other distinctive brand features and designations used by Customer in connection with its business to advertise
that Customer is hosting the Charging Services. Operator shall have a royalty-free, worldwide, transferable,
sublicensable, irrevocable, and perpetual license to use or incorporate in the Charging Services any
suggestions, enhancement requests, recommendations, or other feedback provided by Customer relating to the
Charging Services.
5. OPERATOR’S LIMITATIONS ON RESPONSIBILITIES. Operator shall not be responsible for, and makes
no representation or warranty with respect to the following: (i) specific location(s) or number of Charging
Stations now, or in the future, owned, operated, or installed by persons other than Customer, or the total number
of Charging Stations that comprise Operator; (ii) continuous availability of electrical service to any of
Customer’s Charging Stations; (iii) continuous availability of any wireless or cellular communications network
or Internet service provider network necessary for the continued operation by Operator of Operator; and (iv)
availability of or interruption of the Software attributable to unauthorized intrusions.
6. INDEMNIFICATION.
6.1. Indemnification by Customer. Customer shall indemnify, defend and hold Operator and its
Affiliates and Representatives, and all of its and their successors and assigns, harmless from and against any
and all Damages from Actions which arise out of or relate to: (i) Customer’s negligent acts or omissions,
recklessness or willful misconduct; (ii) the loss of life or any injury to persons or property due to conditions
existing at the Locations unless any such Damages arise out of or relate to Operator’s gross negligence or
willful misconduct; or (iii) the loss of life or any injury to Customer’s employees.
6.2. Indemnification by Operator. Operator shall indemnify, defend and hold Customer harmless from
and against any and all Damages from Actions that result from or arise out of the actual or alleged
misappropriation or infringement of Intellectual Property Rights in connection with the Charging Service or
Charging Stations.
6.3. Survival. The obligations under this Section 6 shall survive the termination or expiration of this
Agreement.
DocuSign Envelope ID: C4DA2F55-F613-4B86-99AF-C87EFB63BAD3
129044680v5
7
7. LIMITATION OF LIABILITY.
7.1. Disclaimers of Warranties. EXCEPT AS EXPRESSLY PROVIDED HEREIN OR PROHIBITED
BY APPLICABLE LAW, OPERATOR EXPRESSLY DISCLAIMS ANY REPRESENTATION OR
WARRANTY MADE, OR THAT MAY HAVE BEEN MADE, IN CONNECTION WITH THIS
AGREEMENT, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING
WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE, UNINTERRUPTED SERVICE, AND ANY WARRANTY ARISING OUT OF A
COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE.
7.2. Exclusion of Consequential Damages. EXCEPT AS PROHIBITED BY APPLICABLE LAW, IN
NO EVENT SHALL OPERATOR BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INDIRECT,
INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING
WITHOUT LIMITATION FOR THE LOSS OF DATA, BUSINESS INTERRUPTION, OR LOST
PROFITS, THAT IN ANY WAY ARISE OUT OF OR RELATE TO THIS AGREEMENT, REGARDLESS
OF THE THEORY OF RELIEF, WHETHER OR NOT OPERATOR HAS BEEN ADVISED TO THE
POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF ANY CLAIM OR FINDING THAT A
REMEDY SUFFERS A FAILURE OF ITS ESSENTIAL PURPOSE.
8. LICENSES; PERMITS. Customer agrees that it shall obtain any and all necessary licenses or Permits for the
installation and operation of the Charging Stations.
9. INSURANCE. At all times during the Term of this Agreement, Customer shall keep and maintain insurance
described in Exhibit F. Upon request, Customer shall furnish, a certificate of insurance evidencing such
insurance is in full force and effect.
10. GENERAL PROVISIONS.
10.1. Governing Law; Choice of Forum. This Agreement and all matters arising out of or relating to
this Agreement are governed by, and construed in accordance with, the laws of the State of Indiana, without
regard to the conflict of laws provisions of such State. Any legal suit, Action, or proceeding arising out of or
relating to this Agreement must be instituted in the federal or state courts located in the State of Indiana, and
any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive
jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in such courts.
Each Party agrees that a final judgment in any such action, litigation or proceeding is conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.
10.2. Assignment. Customer shall not assign, transfer, delegate, or subcontract any of its rights or
obligations under this Agreement without the prior written consent of Operator. Any purported assignment or
delegation in violation of this Section shall be null and void.
10.3. Binding. This Agreement shall be binding upon and shall inure to the benefit of the parties and their
respective successors and assigns.
10.4. Notices. Any notice required to be given or otherwise given pursuant to this Agreement shall be in
writing and shall be hand delivered, mailed by certified mail (return receipt requested), sent by recognized
overnight courier service, or sent by electronic transmission as follows:
DocuSign Envelope ID: C4DA2F55-F613-4B86-99AF-C87EFB63BAD3
129044680v5
8
If to Operator:
Electron Charger, LLC
____________________________
____________________________
Email: ______________________
ATTN: ______________________
If to Customer:
To the address and contact listed on the signature
page hereto.
10.5. Relationship of Parties. 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 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.
10.6. Force Majeure. If either Party shall be delayed or hindered in or prevented from the performance
of any act required under this Agreement by reason of any strike, lockout, pandemic, labor trouble, inability
to procure materials or energy, failure of power, hurricane, 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 such Party, then 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.
10.7. Exhibits. All exhibits attached to this Agreement and referred to herein are hereby incorporated by
reference as if fully set forth herein. Any exhibit not annexed hereto may be attached subsequent to the
Effective Date hereof and which shall thereafter be incorporated by reference herein.
10.8. Headings. The headings in this Agreement are used for convenience only and shall not be used to
define, limit or describe the scope of this Agreement or any of the obligations herein.
10.9. No Third-Party Rights. The provisions of this Agreement are for the exclusive benefit of Operator
and Customer only, and no other party shall have any right or claim against either Party or be entitled to
enforce any provisions hereunder against any Party hereto.
10.10. Final Agreement; Modification. This Agreement constitutes the final understanding and agreement
between the parties with respect to the subject matter hereof and supersedes all prior negotiations,
understandings and agreements between the parties, whether written or oral. This Agreement may be amended,
supplemented or changed only by an agreement in writing signed by both of the parties.
10.11. Severability. If any term or provision of this Agreement is found by a court of competent
jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms and
provisions, shall remain in full force and effect as if such invalid or unenforceable term had never been
included.
10.12. Counterparts; Electronic Signatures. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of such counterparts shall constitute one
and the same Agreement. This Agreement may be executed by hand or by any electronic signature platform
and may be delivered via facsimile, electronic mail, electronic signature platform, or other similar transmission
method, and this Agreement if executed and delivered by any of the foregoing means shall be valid and
effective for all purposes. The parties expressly consent to the use of an electronic signature platform
(including DocuSign) to execute this Agreement, and agree that the use of any electronic signature platform
(including DocuSign), or the use of a facsimile machine, electronic mail or other similar transmission method
as a means to deliver a signature to this Agreement or any amendment to this Agreement does not create a
DocuSign Envelope ID: C4DA2F55-F613-4B86-99AF-C87EFB63BAD3
129044680v5
9
defense to the formation or enforceability of a contract, and the parties expressly and forever waive any such
defense.
[Signature Page Follows]
DocuSign Envelope ID: C4DA2F55-F613-4B86-99AF-C87EFB63BAD3
DocuSign Envelope ID: C4DA2F55-F613-4B86-99AF-C87EFB63BAD3
2/7/2024
2/7/2024
2/7/2024
2/7/2024
EXHIBIT A
Customer Support
1. 24/7 monitoring provided by local support/maintenance team based in Carmel, Indiana.
1.1. 48 Hour SLA to diagnose and communicate any issues and solutions.
1.2. 10 Business Day SLA to repair / replace hardware.
2. Monthly cleaning of Charging Stations included.
2.1. Operator will provide cleaning supplies for charging equipment.
DocuSign Envelope ID: C4DA2F55-F613-4B86-99AF-C87EFB63BAD3
EXHIBIT B
Site Preparation.
Robust WIFI must be provided by customer, in the garage.
DocuSign Envelope ID: C4DA2F55-F613-4B86-99AF-C87EFB63BAD3
EXHIBIT C
Termination Fee.
[$3,000 per Charging Station in each Location during the original service agreement only. If new hardware is
provided for the renewal of this contract a new termination fee may apply.]
DocuSign Envelope ID: C4DA2F55-F613-4B86-99AF-C87EFB63BAD3
EXHIBIT D
Monthly Service Fees
$45.83 per unit per month, or $137.49 per unit per quarter:
Phase (1) will consist of (6) total units for a total monthly fee of $274.98, or $824.94 quarterly.
[Monthly service fees shall be paid on a quarterly basis.]
This monthly service fee will expire at the end of the 48-month term of the contract, unless new hardware is provided
by Electron Charger at time of renewal. At that time a new service fee will be established with the renewal.
DocuSign Envelope ID: C4DA2F55-F613-4B86-99AF-C87EFB63BAD3
EXHIBIT F
Insurance Requirements of Customer
Commercial General Liability
Limits: $1,000,000 Each Occurrence
$2,000,000 General Aggregate and Products / Completed
Operations Aggregate (Separately)
Coverage: Occurrence Form, Commercial General Liability
including Personal Injury, Products Liability, Completed
Operations, Blanket Contractual and Broad Form
Property Damage Coverage, Clients and Contractors
Protective. Should provide primary (and not contributing)
coverage, containing cross-liability and severability of
interest clauses.
Per Location Limits: General Aggregate Limit applies per location.
Automobile Liability
Bodily Injury & Property Damage
Combined Single Limit: $1,000,000 Each Accident
Coverage: Comprehensive Form including Employer’s Non-Owned
& Hired Liability providing primary (and not
contributing) coverage, containing cross-liability and
severability of interest clauses.
Workers Compensation: Statutory Benefits
Forms for All Coverages: Customer shall name Operator as an additional insured on all coverages (other than
Workers’ Compensation). Copy of specific applicable additional insured endorsement and waiver of subrogation
endorsement must be attached and noted on Certificate of Insurance.
DocuSign Envelope ID: C4DA2F55-F613-4B86-99AF-C87EFB63BAD3