Last Updated July 10, 2022

This Online Master Services Agreement (including the Sales Order into which this Online Master Services Agreements is incorporated, the “Agreement”) is entered into by and between KWEV, LLC, a New York state corporation, E-Mail: legal@kwev.com hereinafter (“KWEV”), and the subscriber who is agreeing to this Agreement (“Subscriber”) as of the date it is agreed to by Subscriber (“Effective Date”).

Online Master Services Agreement
This Online Master Services Agreement (including the Sales Order into which this Online Master Services Agreements is incorporated, the “Agreement”) is entered into by and between KWEV, LLC, a New York state corporation, E-Mail: legal@kwev.com hereinafter (“KWEV”), and the subscriber who is agreeing to this Agreement (“Subscriber”) as of the date it is agreed to by Subscriber (“Effective Date”).

1. DEFINITIONS.
a. “Certified EVSE” means any EVSE that has been approved by KWEV for use with the KWEV Network (KWEVCloud). A list of all Certified EVSE is available upon request by Subscriber.

b. “Confidential Information” means any and all information disclosed by one party to the other party, directly or indirectly, in writing, orally, electronically, or in any other form, that is marked as “confidential” or “proprietary” or with a similar designation at the time of the disclosure, or is or should be reasonably understood to be confidential or proprietary to the disclosing party given the nature of the information and the circumstances of the disclosure, including, without limitation, information about the KWEV Network KWEVCloud, the Documentation, and the terms of this Agreement. Notwithstanding the foregoing, Confidential Information does not include information that (i) is or becomes generally available to the public through no breach of this Agreement or any other agreement by the recipient of the information; (ii) was known by the recipient of the information at or before the time such information was received from the KWEV, as evidenced by the recipient’s tangible (including written or electronic) records; (iii) is received from a third-party that is not under an obligation of confidentiality to the disclosing party with respect to such information; or (iv) is independently developed by the recipient of the information without any breach of this Agreement, as evidenced by the recipient’s contemporaneous tangible (including written or electronic) records.

c. “Documentation” means such manuals, documentation and any other supporting materials relating to the KWEV Network, KWEVCloud that are provided to Subscriber by KWEV in connection with this Agreement.

d. “Driver” means any driver who charges an electric vehicle using a EVSE that is managed by the KWEV Network.

e. “KWEV Network or KWEVCloud” has the meaning set forth on Exhibit B.

f. “EVSE” means electric vehicle supply equipment used to charge electric vehicles, including Level 2 (AC) and Level 3 (DC) chargers, that are managed by KWEV or connected to KWEVCloud .

g. “Expenses” means the out-of-pocket expenses incurred by KWEV in connection with its performance of any Related Services.

h. “Intellectual Property Rights” means any and all rights existing from time to time under patent, copyright, trademark, trade secret, unfair competition, moral rights, publicity rights, privacy rights laws, and any and all other proprietary rights.

i. “Legal Requirements” means all applicable laws, rules, regulations, governmental permits, or other binding determinations of any governmental authorities.

j. “Mobile App” means a mobile version of the KWEV Network(Apple and Android compatible) that allows Drivers to search for charging stations, charge their vehicles, receive notifications, communicate with customer support, and otherwise operate the KWEV Network from their cell phones.

k. “Related Services” means any services related to KWEV or KWEVCloud that KWEV has agreed to provide to Subscriber in a Statement of Work

l. “Sales Order” has the meaning set forth in Section 5(a) of this Agreement.

m. “SLA” means the Service Level Agreement(s) set forth on Exhibit A to this Agreement.

n. “Statement of Work” means a written statement of work executed by the parties that describes any Related Services to be provided by KWEV to Subscriber.

o. “Subscriber Affiliate” means any third party that enters into a written agreement with Subscriber permitting such third party to use the KWEV Network (including, without limitation, franchisees of Subscriber) for charging electric vehicles or developing applications that are integrated with the KWEV Network.

p. “Updates” means any modifications, error corrections, bug fixes, new releases, or other updates of or to the KWEV Network and/or Documentation that are generally made available by KWEV to its customers at no additional charge during the term of this Agreement. Updates do not include any releases, options, or future products that KWEV licenses separately.

q. “Usage Data” means information about each Subscriber Affiliate’s and Driver’s use of the KWEV Network, but excludes any personally identifiable information of any Subscriber Affiliate or Driver or any other Confidential Information of Subscriber.

2. KWEV Network.
a. License to the KWEV Network (KWEVCloud. Subject to the terms and conditions of this Agreement and the timely payment of all fees hereunder, KWEV grants to Subscriber a nonexclusive, non-transferable, non-sublicensable limited right and license, during the term of this Agreement, to access and use the KWEV Network through a compatible Internet browser or other remote Internet interface approved by KWEV for the purpose of configuring and administering Subscriber’s network of EVSE; provided, however, that Subscriber’s use of the KWEV Network in accordance with the licenses above must be exercised solely (a) in accordance with the Documentation; (b) for Subscriber’s own internal business use; and (c) subject to the limitations and restrictions set forth in this Agreement (including, without limitation, in Statement of Work No. 1 attached hereto as Exhibit B). For clarity, the licenses above do not include a license with respect to any source code owned by KWEV. Subscriber may provide access to the KWEV Network through the Mobile App to as many Drivers as it deems appropriate. Each Subscriber Affiliate and Driver will be considered an agent of Subscriber, and not an agent of KWEV. KWEV makes no representations or warranties for the benefit of any Subscriber Affiliate or Driver. Subscriber will be responsible for (i) ensuring that each Subscriber Affiliate and Driver complies with all of the terms and conditions of this Agreement and (ii) all of the acts and omissions of any Subscriber Affiliate or Driver in connection with this Agreement as if such acts or omissions of the Subscriber Affiliate or Driver, as applicable, were Subscriber’s own acts or omissions. Except as set forth in this Section 2(a), no other right or license of any kind is granted by KWEV to Subscriber hereunder with respect to the KWEV Network. Except as otherwise expressly set forth in this Agreement (including in a Statement of Work), KWEV is not obligated to customize or alter the KWEV Network for Subscriber.

b. Restrictions.

(1) Subscriber acknowledges that the KWEV Network, including, without limitation, the know-how embodied therein, constitute the valuable trade secrets of KWEV. Subscriber may not, and may not allow others, to (a) copy, disassemble, decompile, “unlock,” reverse translate, reverse engineer, decode, modify, create derivative works based on, or customize the KWEV Network, or any components of the KWEV Network; (b) copy, use, or commercially exploit in any way the KWEV Network (including the processes, methods and know-how embodied in the KWEV Network) or any component of the KWEV Network, other than as expressly allowed in this Agreement; (c) distribute, assign, sell, lease, sublicense, grant a security interest in, or otherwise offer the benefits of the KWEV Network to any third party, whether such arrangement is in the nature of a service bureau, an outsourcing service, or any other similar service or business; (d) access (or attempt to access) the KWEV Network by any means other than through the interface that is provided by KWEV to Subscriber; or (e) gain unauthorized access to the KWEV Network.

(2) Notwithstanding the foregoing, KWEV reserves the right to suspend or permanently terminate any Subscriber Affiliate’s or Driver’s use of the KWEV Network (or any portion thereof) if KWEV believes, in its sole discretion, that such use could be harmful to KWEV or Subscriber in any way, including, without limitation because such use could create liability for KWEV or Subscriber or otherwise negatively impact KWEV’s or Subscriber’s reputation or goodwill.

(3) Subscriber may not use the KWEV Network to manage any EVSE that is not a Certified EVSE.

c. Service Level Agreement. The maintenance of the KWEV Network will be governed by the SLA(s) attached hereto as Exhibit A.

d. Subscriber Responsibilities.

(1) Subscriber agrees that Subscriber’s and all Subscriber Affiliates’ and Drivers’ use of the KWEV Network will comply with all Legal Requirements.

(2) Except to the extent otherwise set forth in this Agreement, Subscriber is responsible for providing, at its own expense, all EVSE, other hardware, system software, access devices, networks and telecommunications or other connections required to access the KWEV Network.

(3) Subscriber agrees to make available to KWEV, at Subscriber’s expense, any Subscriber Materials (as defined below) reasonably necessary for KWEV to perform any Related Services, including without limitation, any Subscriber Materials specified in a Statement of Work.

(4) If Subscriber moves an EVSE to a new location, Subscriber will update the location of such EVSE within the KWEV Network within five (5) days. If Subscriber ceases operating an EVSE, Subscriber will notify KWEV in writing within five (5) days.

e. Display of Name/Logo. During and after the Term, KWEV may display Subscriber’s name and logo on KWEV’s website and in KWEV’s sales materials for the sole purpose of identifying Subscriber as an existing or former customer of KWEV.

 

3. STATEMENTS OF WORK AND RELATED SERVICES.

a. Statements of Work. During the term of this Agreement, the parties may, from time to time, execute Statements of Work. The Statement of Work attached hereto as Exhibit B, as well as any future Statements of Work agreed to by the parties, are hereby incorporated into this Agreement.

b. Resources. KWEV will provide such resources and utilize such employees and/or subcontractors, as it reasonably deems necessary to perform any Related Services. The manner and means used by KWEV to perform any Related Services are in the sole discretion and control of KWEV.

4. CONFIDENTIAL INFORMATION; PRESS RELEASE.

a. Confidentiality Obligations. Each party will (i) hold all Confidential Information of the other party in strict confidence and will not disclose any Confidential Information to any third party except to its officers, employees, contractors and agents (collectively, “representatives”) who have a need to know such Confidential Information in connection with the performance of its obligations under this Agreement, provided that the receiving party’s representatives have been informed by the receiving party of the confidential nature of such Confidential Information and have been instructed by such receiving party to keep such Confidential Information confidential in accordance with the terms of this Section 4(a), it being understood that the receiving party will be responsible for any breaches of this Section 4(a) by such representatives, (ii) avoid the unauthorized use or disclosure of the other party’s Confidential Information using the same degree of care that it uses in safeguarding its own confidential information, but in no event less than a reasonable degree of care, and (iii) use the other party’s Confidential Information only in connection with the performance of its obligations under this Agreement. Notwithstanding the foregoing, the restrictions on Confidential Information contained in this Section 4(a) will not apply to the extent that such disclosure is: (i) approved in writing by the disclosing party, (ii) necessary for the receiving party to enforce its rights under this Agreement in connection with a legal proceeding, or (iii) required by law or by the order of a court or a similar judicial or administrative body, provided that the receiving party promptly notifies the disclosing party in writing of such required disclosure and cooperates with the disclosing party, at the disclosing party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.

b. Equitable Relief. The parties acknowledge that (i) the covenants contained in Section 4(a) are reasonable and necessary to protect the legitimate interests of the parties; (ii) the parties would not have entered into this Agreement in the absence of such covenants; and (iii) any violation or threatened violation of such covenants would cause irreparable harm for which monetary damages would not be adequate. Therefore, the parties agree that, in the event of a breach of Section 4(a) by a party, the other party will be entitled to seek equitable relief in addition to any remedies it may have hereunder or at law, and the breaching party will reimburse the non-breaching party for the reasonable costs associated with such enforcement (including any attorney’s fees).

c. Usage Data. Notwithstanding anything to the contrary contained in this Agreement, Subscriber hereby (i) authorizes KWEV to disclose anonymized Usage Data to third party utilities and government authorities to the extent KWEV is required to share such Usage Data with such third parties under a written agreement with the applicable third party and (ii) grants to KWEV a royalty-free, worldwide, perpetual, non-exclusive right and license to use reproduce, distribute, and make derivative works of the Usage Data.

 

5. PAYMENT.

a. Fees. Subscriber will pay KWEV (i) the fees (collectively, the “Fees”) set forth in Exhibit B to this Online Master Services Agreement and in the Sales Order into which this Agreement has been incorporated (the “Sales Order”) and (ii) any Expenses by ACH in U.S. Dollars directly to KWEV’s bank account. If KWEV incurs any fees or expenses resulting from Subscriber’s chosen method of payment, Subscriber must reimburse KWEV for such fees and expenses. After the Initial Term (as defined in Section 6(a)), each of the Fees will be increased by three percent (3%) in each Renewal Term, on a compounded basis.

b. Invoices and Terms. Subject to any fee payment schedule set forth on the Sales Order or any applicable Statement of Work, at the beginning of each calendar month, KWEV will deliver an invoice to Subscriber for the Fees and/or Expenses due to KWEV for such calendar month and any prior calendar months. Subscriber will pay each invoice in United States dollars via ACH (initiated by Subscriber) within thirty (30) calendar days of the invoice date or by such other date specified on the applicable Statement of Work. If Subscriber breaches the immediately preceding sentence at any time during the Term, Subscriber hereby authorizes KWEV to debit Client’s designated bank account (ACH) for any Fees then accrued or thereafter accrued until the expiration or termination of this Agreement, without any further authorization from Subscriber. If Subscriber wishes to alter its designated bank account, Subscriber will immediately provide KWEV with the information regarding the new designated account necessary for KWEV to debit such account pursuant to this paragraph. If any Fee or other amount owed is past due, KWEV reserves the right to (i) apply a service charge to such overdue balance at the rate of 1.5% per month (but in no event more than the maximum rate allowed by law); and/or (ii) suspend Subscriber’s access to the KWEV Network.

c. Taxes. Subscriber will also be responsible for payment of all taxes (other than taxes based on KWEV’s income), fees, duties, and other governmental charges, and any related penalties and interest, arising from the payment of Fees to KWEV under this Agreement, whether collected by taxing authorities pursuant to existing Legal Requirements or Legal Requirements enacted in the future. Subscriber will pay all Fees to KWEV free and clear of, and without reduction for, any withholding taxes.

d. Other Payments. To the extent permitted by Legal Requirements, KWEV will be entitled to receive any and all credits, benefits, rebates, refunds, and other incentives provided by governmental authorities and/or utilities resulting from Subscriber’s, Subscriber Affiliates’, and Drivers’ use of EVSE.

6. TERM; TERMINATION.
a. Term. The term of this Agreement will commence on the Effective Date and will continue for the period set forth in the Sales Order (the “Initial Term”). Thereafter, this Agreement will automatically renew for successive one (1) year periods (each, a “Renewal Term”; and together with the Initial Term, the “Term”) unless either party notifies the other party of its intention not to renew this Agreement at least one hundred eighty (180) days before the end of the then-current Renewal Term.

b. Termination. Either party may terminate this Agreement by providing written notice to the other party if the other party materially breaches this Agreement and such breach is not cured within thirty (30) calendar days after written notice thereof by the non-breaching party. Upon a termination of this Agreement, all Statements of Work then in effect will automatically terminate as well.

c.) Effects. Upon the expiration or termination of this Agreement for any reason: (i) all rights and licenses granted to Subscriber (and Subscriber Affiliates and Drivers) hereunder will immediately terminate; (ii) Subscriber will immediately stop using the KWEV Network; and (iii) within thirty (30) days, each party will, at the other party’s option, either destroy or permanently erase all copies of the other party’s Confidential Information under its control; provided, however, that each party may retain one archival copy the other party’s Confidential Information. Upon any termination of this Agreement, Subscriber will still be obligated to pay all Fees and Expenses that have accrued pursuant to this Agreement prior to the effective date of termination within five (5) days after such date of termination. Either party’s termination of this Agreement will be without prejudice to any other right or remedy that it may have at law or in equity, and will not relieve either party of breaches occurring prior to the effective date of such termination. Sections 1, 2(b), 2(e), and 4-11, and any other provisions in the Exhibits to this Agreement that by their nature would reasonably be expected to survive, will survive the expiration or termination of this Agreement.

7. PROPRIETARY RIGHTS.
a. KWEV. As between KWEV and Subscriber, KWEV will exclusively own and retain all right, title, and interest, including all Intellectual Property Rights, in and to (i) the KWEV Network (including all Documentation) and any Related Services, including, without limitation, all software, technology, information, content, and materials relating thereto; (ii) all Confidential Information of KWEV; (iii) any suggestions, recommendations, or other feedback relating to the KWEV Network provided by Subscriber or any Subscriber Affiliate or Driver to KWEV; and (iv) any modifications, Updates, copies, translations, improvements, derivative works, or adaptations of any of the foregoing, irrespective of who authored, invented, or made same.

b. Subscriber. As between KWEV and Subscriber, Subscriber will exclusively own all right, title, and interest, including all Intellectual Property Rights, in and to (i) the Usage Data and (ii) all Confidential Information of Subscriber (collectively, the “Subscriber Materials”). Subscriber hereby grants KWEV a royalty-free, worldwide, non-exclusive right and license to use, reproduce, distribute, transmit, perform, display, and make derivative works of the Subscriber Materials, or any portion thereof, solely for the purpose of performing any Related Services.

8. LIMITED WARRANTY.
a. Mutual. Each party represents and warrants to the other party that the execution, delivery and performance of this Agreement (i) is within its corporate powers, (ii) has been duly authorized by all necessary corporate action on such party’s part, and (iii) does not and will not contravene, violate, or constitute a default under, and is not and will not be inconsistent with, any Legal Requirement, judgment, decree or order, or any contract, agreement, or other undertaking, applicable to such party.

b. KWEV Network. KWEV warrants that, when operated in accordance with the Documentation, the KWEV Network will substantially conform to the specifications set forth in the Documentation. Notwithstanding the foregoing, KWEV’s warranty in this paragraph will not apply to the extent that KWEV’s breach of such warranty arises from (i) any use of the KWEV Network not in accordance with the terms of this Agreement or any Legal Requirements; (ii) any use of the KWEV Network in combination with other services, products or data provided by Subscriber or third parties; or (iii) any modification of the KWEV Network by Subscriber or any third party. KWEV’s sole obligation, and Subscriber’s sole remedy, for a breach of the warranty in this paragraph will be, at KWEV’s option, either to (i) remedy the purported defect within a reasonable time or (ii) terminate this Agreement and refund any Fees that have been prepaid by Subscriber for the KWEV Network for any period of time after such termination.

c. Related Services. KWEV warrants that it will perform any Related Services that KWEV is obligated to provide in a professional and workmanlike manner. KWEV’s sole obligation, and Subscriber’s sole remedy, for a breach of this warranty will be, at KWEV’s option, either to: (a) re-perform any Related Services that fail to meet the foregoing warranty; or (b) terminate the applicable Statement of Work and refund any Fees that have been paid by Subscriber for any Related Services that fail to meet the foregoing warranty.

d. General Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 8(a), 8(b) and 8(c), THE KWEV Network IS PROVIDED “AS-IS” AND “AS AVAILABLE” AND KWEV EXPRESSLY DISCLAIMS ALL WARRANTIES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WHETHER EXPRESS, IMPLIED, OR STATUTORY, AS TO ANY ASPECT OF THE KWEV Network, ANY RELATED SERVICES, OR ANY OTHER ASPECT OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. KWEV DOES NOT WARRANT THAT THE KWEV NETWORK WILL MEET ALL OF SUBSCRIBER’S REQUIREMENTS, THAT ITS ACCESSIBILITY OR OPERATION WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE, THAT THE ELECTRICAL, INTERNET, WIRELESS, OR CELLULAR NETWORKS NECESSARY TO OPERATE THE KWEV NETWORK WILL BE AVAILABLE, OR THAT THE KWEV NETWORK WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. KWEV IS NOT LIABLE TO SUBSCRIBER FOR ANY LOSS OR CORRUPTION OF SUBSCRIBER CONTENT ON THE KWEV NETWORK. SUBJECT TO ANY KWEV OBLIGATIONS IN EXHIBIT A TO THIS AGREEMENT, SUBSCRIBER ACKNOWLEDGES THAT ACCESS TO INFORMATION STORED IN THE KWEV NETWORK IS NOT GUARANTEED, AND SUBSCRIBER AGREES TO EMPLOY APPROPRIATE BACK-UP PROCEDURES FOR DATA STORAGE IN ORDER THAT ANY LOSS OF DATA CAUSED BY THE KWEV NETWORK OR ITS UNAVAILABILITY WILL NOT ADVERSELY AFFECT SUBSCRIBER. TO THE EXTENT KWEV MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.

e. Third-Party Data. THE KWEV NETWORK MAY CONTAIN DATA FROM THIRD-PARTY PROVIDERS AND/OR WEBSITES THAT ARE NOT OWNED OR CONTROLLED BY KWEV. KWEV HAS NO CONTROL OVER, AND ASSUMES NO RESPONSIBILITY FOR, SUCH DATA OR POLICIES, OR PRACTICES OF ANY THIRD-PARTY DATA PROVIDER. SUBSCRIBER EXPRESSLY RELIEVES KWEV FROM ANY AND ALL LIABILITY ARISING FROM SUBSCRIBER’S USE OF ANY SUCH THIRD-PARTY DATA.

 

9. LIMITATION OF LIABILITY.
KWEV’S AGGREGATE LIABILITY TO SUBSCRIBER FOR ANY CLAIM ARISING FROM OR RELATING TO THIS AGREEMENT UNDER ANY LEGAL THEORY (WHETHER IN TORT, CONTRACT, INDEMNITY, STATUTORY, OR OTHERWISE), WILL NOT EXCEED THE AMOUNT PAID OR PAYABLE BY SUBSCRIBER TO KWEV PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH SUCH CLAIM INITIALLY AROSE. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN TORT, CONTRACT, INDEMNITY, STATUTORY, OR OTHERWISE) WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD-PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, GOODWILL, LOST PROFITS OR LOST DATA, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING FROM SUCH PARTY’S OR THIRD PARTY’S PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT OR THE OPERATION OF SUCH PARTY’S BUSINESS.

 

10. INDEMNIFICATION.
a. KWEV. KWEV will, at its sole expense, defend, indemnify, save and hold harmless Subscriber and Subscriber’s officers, directors, agents and employees from any and all damages, losses, liabilities, costs or expenses, including reasonable attorneys’ fees (collectively, “Losses”), resulting from third-party claims, demands, suits, or proceedings (collectively, “Claims”) arising out of or relating to (i) KWEV’s breach of its representations, warranties, or covenants set forth in this Agreement, (ii) the infringement of any valid United States copyright or trade secret by the KWEV Network (which, for clarity, does not include Subscriber Materials), and (iii) KWEV’s gross negligence or willful misconduct. Notwithstanding the foregoing, KWEV’s indemnity obligation in this paragraph will not apply to the extent that such obligation arises from (i) any use of the KWEV Network not in accordance with the terms of this Agreement or any Legal Requirements; (ii) any use of the KWEV Network in combination with other services, products or data provided by Subscriber or third parties; or (iii) any modification of the KWEV Network by Subscriber or any third party.

b. Subscriber. Subscriber will, at its sole expense, defend, indemnify, save and hold harmless KWEV and KWEV’s officers, directors, agents and employees from any and all Losses resulting from Claims arising out or relating to (i) an alleged breach by Subscriber or any Subscriber Affiliate or Driver of any representation, warranty or covenant of Subscriber in this Agreement; (ii) the Subscriber Materials; (iii) any representations or warranties made by Subscriber to a Subscriber Affiliate, Driver, or other third party concerning any aspect of the KWEV Network or Related Services; (iv) acts or omissions of Subscriber, any Subscriber Affiliate, or any Driver in connection with Subscriber’s use of the KWEV Network; and (v) Subscriber’s gross negligence or willful misconduct.

c. Requirements. Any party seeking indemnification under this Agreement will (i) promptly notify the indemnifying party in writing regarding any facts that may give rise to a claim for indemnification under this Agreement (provided that any delay in notification will not relieve the indemnifying party of its obligations hereunder except to the extent that the indemnifying party is actually prejudiced by such delay); (ii) provide the indemnifying party with reasonable information, assistance and cooperation in defending the lawsuit or proceeding (at the indemnifying party’s expense, to the extent of any out-of-pocket expenses); and (iii) give the indemnifying party full control and sole authority over the defense and settlement of such claim, subject to the indemnified party’s approval of any such settlement, which approval will not be unreasonably withheld or delayed.

11. INSURANCE.
During the Term, KWEV will maintain, with reputable insurance companies, the following insurance coverages: (a) workers’ compensation insurance as required by Legal Requirements, (b) general liability insurance with a minimum limit of $1,000,000 per occurrence and $2,000,000 annually, (c) commercial umbrella/excess liability insurance with a minimum limit of $2,000,000 per occurrence and $2,000,000 annually, (d) professional liability insurance with a minimum limit of $1,000,000, and (e) cyber insurance with a minimum limit of $3,000,000. Upon Subscriber’s request, KWEV will provide certificates of insurance evidencing the insurance coverages set forth above.

12. MISCELLANEOUS.
a. Arbitration. In the event of any dispute, claim or controversy between the parties arising out of or relating to this Agreement, whether in contract, tort, equity or otherwise, and whether relating to the meaning, interpretation, effect, validity, performance or enforcement of this agreement, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim or controversy will be resolved by and through an arbitration before one (1) arbitrator in Staten Island, NY, to be administered by Judicial Arbitration and Mediation Services, Inc., or its successor, pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Both the foregoing agreement of the parties to arbitrate any and all such disputes, claims and controversies, and the results, determinations, findings, judgments and/or awards rendered through any such arbitration will be final and binding on the parties and may be specifically enforced by legal proceedings in any court of competent jurisdiction. This clause will not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The costs of the arbitrator, the arbitration proceeding, any proceeding in court to confirm or to vacate any arbitration award, and each party’s reasonable attorneys’ fees and costs will be borne by the unsuccessful party or, at the discretion of the arbitrator(s), may be prorated between or among the parties in such proportion as the arbitrator(s) determine(s) to be equitable and will be awarded as part of the arbitrators’ award.

b. Export Restrictions. Subscriber understands and acknowledges that KWEV is subject to regulation by agencies of the U.S. government, including the U.S. Department of Commerce, that prohibit export or diversion of certain products and technology to certain countries. Any and all obligations of KWEV to provide access to the KWEV Network are subject in all respects to such United States laws and regulations as from time to time govern the license and delivery of technology and products abroad by persons subject to the jurisdiction of the United States, including the Export Administration Act of 1979, as amended, any successor legislation, and the Export Administration Regulations (“EAR”) issued by the Department of Commerce, International Trade Administration, Bureau of

c. Entire Agreement; Amendments. This Agreement, including any exhibits hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof. This Agreement supersedes all prior agreements or representations, oral or written, regarding such subject matter, including, without limitation, any purchase orders or other business forms drafted by Subscriber, whether or not signed by KWEV, which are hereby terminated and of no further force or effect. This Agreement may be modified or amended only by a writing signed by an authorized representative of both parties.

d. Waivers. The waiver by either party of a breach of or a default under any provision of this Agreement will be in writing and will not be construed as a waiver of any subsequent breach or default under the same or any other provision of this Agreement. No delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operates as a waiver of any right or remedy.

e. Severability. If the application of any provision of this Agreement to any particular facts or circumstances will be held to be invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, then (i) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement will not in any way be affected or impaired thereby and (ii) such provision will be enforced to the maximum extent possible so as to effect the intent of the parties and reformed without further action by the parties to the extent necessary to make such provision valid and enforceable.

f. Assignment. The rights granted and obligations undertaken in this Agreement are personal to Subscriber and Subscriber agrees not to transfer, assign or sublicense such rights or obligations to any third-party. Any attempted transfer, assignment or sublicense of such rights or obligations by Subscriber will be null and void.

g. Relationship. The relationship of KWEV and Subscriber established by this Agreement is that of independent contractors, and nothing contained in this Agreement will create or be construed to create any partnership, joint venture, agency, franchise, sales representative, employment or fiduciary relationship between the parties or any of its respective agents or employees. Nothing in this Agreement grants to either party the authority to make any promise, warranty, guarantee, or representation that will create any obligation or liability whatsoever, whether express or implied, on behalf of the other.

h. Law; Venue. This Agreement will be governed by and construed in accordance with the laws of the State of California, without giving effect to any contrary choice of law rules, and applicable United States federal law. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.

i. Notices. All notices under this Agreement will be in writing and will be delivered to a party at the physical address or e-mail address specified in the Sales Order, Attn: Chief Legal Officer, by: (1) depositing the notice in the mail, using registered mail, return receipt requested; (2) overnight delivery service; (3) e-mail; or (4) hand delivery to an individual authorized to accept such delivery. The notice will be effective; (i) seven (7) calendar days after deposit in the mail; (ii) the next business day after deposit with an overnight delivery service; (iii) upon receipt by e-mail; or (iv) on the date of hand delivery.

j. Force Majeure. Except for Subscriber’s obligations to pay KWEV hereunder, neither party will be liable to the other party for any failure or delay in performance caused by reasons beyond its reasonable control.

k. Construction. The terms of this Agreement have been negotiated by the parties hereto and the language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent. This Agreement will be construed without regard to any presumption or rule requiring construction against the party causing such instrument or any portion thereof to be drafted, or in favor of the party receiving a particular benefit under this Agreement.

l. Headings. The captions and section and paragraph headings used in this Agreement are inserted for convenience only and will not affect the meaning or interpretation of this Agreement.

m. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same Agreement. All signed fax copies of the Agreement will be deemed as valid as an original.

 

EXHIBIT A
SAAS Service Level Agreement
1. DEFINITIONS.
a. “Error” means, with respect to this Exhibit A only, an event that causes interruption to, or a reduction in, the quality of the Software.

b. “EV” means electric vehicle.

c. “EVSE” means the hardware components (electric vehicle supply equipment) that make up an EV charging station.

d. “Host” means the owner or operator of an EV charging station.

e. “Response Time” means, after KWEV receives notice of an Error, the amount of time it takes KWEV to provide Subscriber with an update and potential resolution time for such Error.

f. “Resolution Time” means, after KWEV receives notice of an Error, the amount of time it takes KWEV to resolve such Error, which may include a permanent fix or temporary workaround.

g. “Scheduled Downtime” means the number of hours in a given calendar month that one or more material elements of the Software is not available to Customers because of scheduled system maintenance across the Software (i.e., not Subscriber-specific) for which KWEV has provided Subscriber with at least 48 hours prior notice. KWEV will use commercially reasonable efforts to perform Scheduled Downtime from 11:00 p.m-4:00 a.m. Eastern Time.

h. “Severity Levels” mean the categories of Errors set forth below:

i. “Software” means the software included within the KWEV Network.

j. “Unscheduled Downtime” means the number of hours in a given calendar month that one or more material elements of the Software is not available to Customers because of system maintenance that is not Scheduled Downtime.

2. AVAILABILITY.
The Software will be available to Subscriber twenty-four (24) hours a day, seven (7) days a week, 99.5% of the time (the “Availability Percentage”), measured on a calendar monthly basis, excluding (a) Scheduled Downtime, (b) up to a total of four (4) hours per month of Unscheduled Downtime, and (c) downtime caused by Subscriber or its agents or by other forces beyond the reasonable control of KWEV (including, without limitation, hardware or software failures). Notwithstanding anything to the contrary in this Exhibit A, the unavailability of certain specific features or functions of the Software that are not, in the aggregate, material to the Software as a whole will not constitute unavailability of the Software.

3. RESOLUTION OF ERRORS.
a. Categorization of Errors. The Severity Level of any Error will be determined by KWEV in its reasonable discretion.

b. Response & Resolution Times. Subscriber will use commercially reasonable efforts to provide detailed, accurate, and immediate notification to KWEV of any Error so that KWEV can take remedial action as soon as possible. KWEV will use commercially reasonable efforts to respond to and resolve each Error in accordance with its Severity Level as set forth in the table below:

* Notwithstanding anything to the contrary contained in this Agreement, KWEV is not obligated to remedy any Error caused by user error or Subscriber’s or any user’s failure to access the Software with a compatible system or web browser or any Error caused by the EVSE.

** Subscriber will power cycle the EVSE upon request of KWEV. If KWEV is unable to fix an Error remotely within the applicable remote workaround time period set forth in the table above, such Error will be referred to the Subscriber’s field service team for resolution. If the Error is not covered by a valid warranty, additional service fees may apply to such site visit(s).

4. TECHNICAL SUPPORT.
KWEV technical support will be available by phone at (888) 505-5938 or by email at host_support@kwev.com (email subject to change) based on the schedule below:

 

 

 

 

 

 

 

 

 

 

[Note: The below KWEVPlus Service Level Agreement applies only if the Subscriber has opted to include the KWEVPlus service on the applicable Sales Order.]

KWEVPlus Service Level Agreement
1. DEFINITIONS.
a. “Connector” means a connector on any EVSE that allows a Driver to successfully authorize a charging session on the Driver’s EV.

b. “Error” means, with respect to this Exhibit only, an event that causes any EVSE to be unable to charge a Driver’s EV.

c. “EV” means electric vehicle.

d. “EVSE Severity Levels” means the categories of Errors set forth below:

e. “Site Visit Time” means, after KWEV determines that an Error cannot be repaired remotely, the amount of time it takes KWEV to send a field representative to perform an initial Site Visit.

f. “Software” means the software included within the KWEV Network.

g. “Site Visit” means a visit by a field technician to an EVSE for repairing an Error.

2. AVAILABILITY.
Each EVSE will be available for charging EVs twenty-four (24) hours a day, seven (7) days a week, 98.0% of the time (the “Availability Percentage”), measured on a calendar monthly basis, excluding downtime caused by Subscriber or its agents or downtime caused by other forces beyond the reasonable control of KWEV.

3. MONITORING.
KWEV will remotely monitor each EVSE for Errors from 8am-8pm Eastern Time. If KWEV detects any Errors as a result of such remote monitoring, KWEV will promptly notify Subscriber regarding such Error. KWEV will attempt to repair such Errors remotely; however, if KWEV is unable to repair the Error remotely, KWEV will repair such Error in accordance with Section 4 below.

4. RESOLUTION OF ERRORS.
c. Categorization of Errors. The EVSE Severity Level of any Error will be determined by KWEV in its reasonable discretion.

d. Resolution Times. Subscriber will use commercially reasonable efforts to provide detailed, accurate, and immediate notification to KWEV of any Error so that KWEV can take remedial action as soon as possible. Subscriber will power cycle EVSEs upon request of KWEV. If an Error cannot be repaired remotely, Subscriber will send a field service representative to perform a Site Visit and repair or replace any parts necessary to resolve such Error so that the EVSE works in accordance with such EVSE’s published specifications. KWEV will use commercially reasonable efforts to perform a Site Visit in accordance with the applicable Severity Level as set forth in the table below:

* The Site Visit Time may be extended for (a) any failure of Subscriber to provide timely access to the location or timely responses to KWEV’s requests for information necessary to resolve the Error and (b) the delivery of any parts required to resolve the Error. If the field service representative determines during the initial Site Visit that a return Site Visit is required to resolve the Error, KWEV will use commercially reasonable efforts to schedule a return Site Visit within three (3) business days after the initial Site Visit, subject to the availability and delivery of any parts required to resolve the Error. KWEV will provide the Subscriber with periodic updates regarding the resolution of an Error.

5. EXCLUSIONS.
Notwithstanding anything to the contrary in this KWEVPlus Service Level Agreement (“KWEVPlus SLA”), KWEV’s obligations under this KWEVPlus SLA do not apply to the following types of Errors: (a) Errors caused by the electrical infrastructure, poor cell/wifi quality or strength or poor network connectivity or performance, (b) Errors that can be fixed by manually power cycling the EVSE, (c) Errors caused by the improper installation of an EVSE by Subscriber or a third-party, (d) Errors caused by vandalism, misuse, or abuse of the EVSE, (e) Errors relating to damage to a Connector (e.g., caused by a Driver running over the Connector), (f) cosmetic damage to an EVSE, (g) normal wear and tear to EVSE (e.g., fading of colors), (h) Errors caused by the negligence of Subscriber or a Driver (e.g., striking the EVSE with a vehicle), (i) Errors caused by the modification or relocation of an EVSE other than by KWEV, (j) Errors caused by the use of the EVSE with software or parts that are not supplied by KWEV, and (k) Errors caused by extreme power surges, extreme electromagnetic fields, or any other acts of nature (collectively, “Excluded Errors”).

6. CHARGES FOR EXCLUDED ERRORS.
If (a) Subscriber requests that KWEV repair an Excluded Error, (b) KWEV agrees to repair such Excluded Error, and (c) Subscriber agrees to KWEV’s cost estimate for repairing such Excluded Error, Subscriber will be responsible for paying for such services and parts immediately after the repair is completed. If, during an initial Site Visit, it is determined that the Error is an Excluded Error, Subscriber will pay for any service and parts provided during such Site Visit immediately after the Site Visit.

 

 

 

[Note: The below KWEVPlus with V&A Service Level Agreement applies only if the Subscriber has opted to include the KWEVPlus with V&A service on the applicable Sales Order.]

KWEVPlus with V&A Service Level Agreement
1. DEFINITIONS.
a. “Connector” means a connector on any EVSE that allows a Driver to successfully authorize a charging session on the Driver’s EV.

b. “Error” means, with respect to this Exhibit only, an event that causes any EVSE to be unable to charge a Driver’s EV.

c. “EV” means electric vehicle.

d. “EVSE Severity Levels” means the categories of Errors set forth below:

e. “Site Visit Time” means, after KWEV determines that an Error cannot be repaired remotely, the amount of time it takes KWEV to send a field representative to perform an initial Site Visit.

f. “Software” means the software included within the KWEV Network.

g. “Site Visit” means a visit by a field technician to an EVSE for repairing an Error.

h. “KWEVPlus W/V&A” means KWEVPlus with Vandalism and Accident Coverage.

2. AVAILABILITY.
Each EVSE will be available for charging EVs twenty-four (24) hours a day, seven (7) days a week, 98.0% of the time (the “Availability Percentage”), measured on a calendar monthly basis, excluding downtime caused by Subscriber or its agents or downtime caused by other forces beyond the reasonable control of KWEV.

3. MONITORING.
KWEV will remotely monitor each EVSE for Errors from 8am-8pm Eastern Time. If KWEV detects any Errors as a result of such remote monitoring, KWEV will promptly notify Subscriber regarding such Error. KWEV will attempt to repair such Errors remotely; however, if KWEV is unable to repair the Error remotely, KWEV will repair such Error in accordance with Section 4 below.

4. RESOLUTION OF ERRORS.
c. Categorization of Errors. The EVSE Severity Level of any Error will be determined by KWEV in its reasonable discretion.

d. Resolution Times. Subscriber will use commercially reasonable efforts to provide detailed, accurate, and immediate notification to KWEV of any Error so that KWEV can take remedial action as soon as possible. Subscriber will power cycle EVSEs upon request of KWEV. If an Error cannot be repaired remotely, Subscriber will send a field service representative to perform a Site Visit and repair or replace any parts necessary to resolve such Error so that the EVSE works in accordance with such EVSE’s published specifications. KWEV will use commercially reasonable efforts to perform a Site Visit in accordance with the applicable Severity Level as set forth in the table below:

* The Site Visit Time may be extended for (a) any failure of Subscriber to provide timely access to the location or timely responses to KWEV’s requests for information necessary to resolve the Error and (b) the delivery of any parts required to resolve the Error. If the field service representative determines during the initial Site Visit that a return Site Visit is required to resolve the Error, KWEV will use commercially reasonable efforts to schedule a return Site Visit within three (3) business days after the initial Site Visit, subject to the availability and delivery of any parts required to resolve the Error. KWEV will provide the Subscriber with periodic updates regarding the resolution of an Error.

5. EXCLUSIONS.
Notwithstanding anything to the contrary in this KWEVPlus with V&A Service Level Agreement (“KPVA SLA”), KWEV’s obligations under this KPVA SLA do not apply to the following types of Errors: (a) Errors caused by the electrical infrastructure, poor cell/wifi quality or strength or poor network connectivity or performance, (b) Errors that can be fixed by manually power cycling the EVSE, (c) Errors caused by the improper installation of an EVSE by Subscriber or a third-party, (c) cosmetic damage to an EVSE, (d) normal wear and tear to EVSE (e.g., fading of colors), (e) Errors caused by the modification or relocation of an EVSE other than by KWEV, (f) Errors caused by the use of the EVSE with software or parts that are not supplied by KWEV, and (g) Errors caused by extreme power surges, extreme electromagnetic fields, or any other acts of nature (collectively, “Excluded Errors”).

6. CHARGES FOR EXCLUDED ERRORS.
If (a) Subscriber requests that KWEV repair an Excluded Error, (b) KWEV agrees to repair such Excluded Error, and (c) Subscriber agrees to KWEV’s cost estimate for repairing such Excluded Error, Subscriber will be responsible for paying for such services and parts immediately after the repair is completed. If, during an initial Site Visit, it is determined that the Error is an Excluded Error, Subscriber will pay for any service and parts provided during such Site Visit immediately after the Site Visit.

5. LIMITED COVERAGE
.
Notwithstanding anything to the contrary in this KWEVPlus with V&A Service Level Agreement (“KPVA SLA”), KWEV’s obligations under this KPVA SLA will only apply once in a 12-month period and twice in a 60-month period to the following types of Errors:(a) Errors caused by vandalism, misuse, or abuse of the EVSE, (b) Errors relating to damage to a Connector (e.g., caused by a Driver running over the Connector), (c) Errors caused by the negligence of Subscriber or a Driver (e.g., striking the EVSE with a vehicle)

EXHIBIT B
Statement of Work No. 1 – KWEV Network
This Statement of Work No. 1 (“SOW”) is at all times subject to the terms and conditions set forth in the main body of the Agreement in which it is incorporated. Any capitalized term used, but not defined, in this SOW will have the meaning given to that term in the main body of the Agreement.

1. Definitions.
a. “Charging Session” means a Driver’s use of an EVSE to charge such Driver’s electric vehicle.

b. “Driver Transaction Fee” means a fee equal to 8% of the applicable Session Fee for a Charging Session plus $0.25 per Charging Session.

c. “KWEV Network” means, collectively, (i) the object code versions of Licensor’s web-based software that manages the networks to which EVSEs are connected and includes the following functionality and services: dashboard, reporting suite, flexible pricing policies, EVSE station access control, OCPI integrations, and compatibility with virtually any OCPP1.6 (or the most up-to-date version or standard) JSON-enabled hardware, (ii) the Mobile App; (iii) the Documentation; and (iv) Updates to any of the foregoing.

d. “Regulatory Charges” means any and all charges or fees imposed by applicable state and federal regulatory authorities with respect to a Charging Session or the use of EVSE.

e. “Session Fees” means any all fees collected by KWEV for each Charging Session, including any applicable Taxes and/or Regulatory Charges.

f. “Taxes” means sales, use, and other taxes imposed by applicable taxing authorities with respect to a Charging Session.

2. Territory.
Subscriber may implement the KWEV Network only with respect to EVSE located in the United States.

3. Trademarks.
Subscriber agrees not to remove, conceal, or modify any KWEV trademarks, service marks, logos or any other markings or labels displayed on EVSE (or peripheral equipment thereto) that is sold or otherwise provided to Subscriber by KWEV.

4. Related Services.

a. Setup and Configuration Services. KWEV will provide the following services to Subscriber: (i) help Subscriber set up and configure the KWEV Network according to KWEV’s standard specifications and (ii) provide Subscriber with up to two (2) hours of product and functionality training during setup of the KWEV Network.

b. Additional Services. Any services requested by Subscriber that are outside the scope of this SOW (including, without limitation, training services that exceed the time limitations set forth in this SOW) will be considered “Additional Services”. Subscriber will pay hourly rates for such Additional Services (or enter into a separate Statement of Work with KWEV for Additional Services prior to the provision of such Additional Services).

 

5. Compensation.
a. Session Fees. Subscriber will have the sole authority to determine the Session Fees for each Charging Session,(the Session Fees can only be updated via email request sent to host_support@kwev.com) and such Session Fees will always include all applicable Taxes and Regulatory Charges. KWEV will collect all Session Fees. KWEV will remit such Session Fees to Subscriber within thirty (30) days after the end of the calendar quarter in which such Session Fees were collected by KWEV, after deducting any applicable Taxes and Regulatory Charges. Subscriber is responsible for the payment of all Taxes and Regulatory Charges; provided, however, that KWEV will be responsible, on behalf of Subscriber, for the collection and remittance of all Taxes and Regulatory Charges to the appropriate taxing or regulatory authorities, when/if such Taxes and/or Regulatory Charges are imposed.

b. Driver Transaction Fee. KWEV will also charge and collect, for its own account, the Driver Transaction Fee with respect to each Charging Session.

c. Other Fees. All other Fees payable to KWEV will be set forth on the applicable Sales Order (which Fees will begin to accrue on the Effective Date of this Agreement).

d. Expenses. All Expenses will require Subscriber’s prior written approval. Subscriber will reimburse KWEV for all Expenses on a monthly basis. KWEV will provide Subscriber with supporting documentation for Expenses upon request.

 

 

 

KWEV’s Charging-as-a-Service Terms & Conditions

KWEV, LLC. (“us”, “we”, “our”, the “Company” or “KWEV”) provides the services available on the kwev.com Website (and any other Company Website), the KWEVCloud Subscription Service (to Site Hosts, described below) and the downloadable, mobile, KWEV Network Application (collectively, the “Services” or “Service”), which allows you to charge your vehicle on any electric vehicle service equipment (an “EVSE” or “Charging Station”) that has been commissioned onto our Network, KWEVCloud.

THESE TERMS OF USE (“TERMS OF USE” OR “TERMS”) CONSTITUTE A BINDING LEGAL CONTRACT. ALL USERS (AS DESCRIBED BELOW) OF KWEV SERVICES SHOULD CAREFULLY READ THESE TERMS OF USE BEFORE DOWNLOADING THE MOBILE KWEV NETWORK APPLICATION OR USING ANY OF OUR SERVICES. EACH USER AGREES TO BE BOUND BY THESE TERMS OF USE AND TO BE LIABLE TO KWEV FOR ANY NONCOMPLIANCE WITH THESE TERMS. IF THE USER DOES NOT AGREE TO THESE TERMS OF USE, USER MUST NOT USE THE SERVICES. CAPITALIZED TERMS NOT DEFINED HEREIN SHALL HAVE THOSE CERTAIN MEANINGS SET FORTH IN THE COMPANY’S PRIVACY POLICY, WHICH IS HEREBY INCORPORATED BY REFERENCE INTO THESE TERMS OF USE.

1. Users. The following are users of the Services (each, a “User” or “You” and, collectively, the “Users”):

a. A “Guest” may use the Service, without registering on the Service as a Driver, to pay for and receive a single vehicle charge from charging stations that have been commissioned onto the KWEVCloud Network (each a “Charging Station”). As used herein “KWEVCloud Netowrk” means Company’s proprietary software that has been installed on Charging Stations that allows Users to use the Services in connection with a network of Charging Stations.

b. A “Driver” is an individual that has downloaded the KWEV Network Application and registered and maintained a Service account in good standing with the Company. Registering as a Driver on the Service allows Users to access and use various, then current, Service functionalities, including but not limited to engaging in the following activities: (i) access Service search capabilities (including searching by filters), (ii) indicate and log favorites, (iii) store alternate payment methods, (iv) identify as a special user (in the event a location host of a Charging Station (“Charging Site Host”) has identified certain individuals, such as Charging Site Host employees, to be part of a special user group (a “Group” or “Groups”) that may access free to reduced-fee charging), (v) review User charging and transaction history, (vi) receive charging status notifications, and (vii) select from stored payment methods to initiate charging.

c. A “Key FOB User” is an individual that has registered an RFID device on the Service. When registering as a Key FOB User, you will be given the opportunity to (i) link one form of payment to your account, (ii) if applicable, identify as part of a Group, and (iii) start charges on all Charging Stations by swiping your RFID device. For clarity, a Key FOB User may also download and use the mobile KWEV Network Application.

2. Services; License.

a.The Company’s core Services include: (i) the processing of payments for charging electric vehicles via a Charging Station, and (ii) identifying Users as members of a Group to allow for such Users to, in the sole discretion of the applicable Site Host, charge their electric vehicle for free or for a reduced price at the corresponding Charging Stations. Users expressly acknowledge and agree that pricing and pricing policies for each Charging Station commissioned onto the KWEVCloud Network is determined solely by the Site Host. KWEV shall in no way be liable to any User for any dispute arising out of or related to fees incurred by use of the Services. IN THE EVENT THAT YOU HAVE A DISPUTE WITH A SITE HOST, YOU RELEASE KWEV FROM ANY CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.

b.Subject to your compliance with these Terms, for the duration of User’s use the Services, and subject to the restrictions set forth herein, the Company hereby grants to User a revocable, limited, non-sublicensable, non-exclusive license to access and use the Services. Except as expressly set forth in these Terms, Users receive no other right, title, or interest in and to the Services.

c.Users hereby grant to Company an exclusive, non-revocable, worldwide, royalty free license to use, copy, sublicense through multiple tiers, publish, reproduce, prepare derivative works, distribute, and display (i) any feedback or suggestions communicated to Company (“Suggestions”), (ii) Transaction History, (iii) Usage Data, and (iv) Log Data. Such license includes the right to create and have created and to similarly use any derivative works of any of the licensed content or matter. Without limiting the foregoing, Company will be entitled to unrestricted use and other exploitation of Suggestions, Transaction History, Usage Data and Log Data for any purpose whatsoever, commercial or otherwise, by any means, by any media, without compensation to the provider, author, creator or inventor of the Suggestions, Transaction History, Usage Data and Log Data. Users represent and warrant to the Company with respect to the Suggestions, and the license of rights in and to such content, do not infringe or violate any copyrights, trade secrets, or other intellectual or proprietary rights of any third-party, and that posting or otherwise using any content will not violate any applicable laws, rules, or regulations.

3. Limitations. Users may not circumvent any technological measures or features of the Services that are intended to or effectively control access to the Services, or any other protected content or information included on the Services. The Services may contain robot exclusion headers. Users agree to not use any robot, spider, crawler, scraper or other automated means to access the Services for any purpose without the Company’s express prior written consent. Users further agree to not (i) take any action that imposes or may impose, in the Company’s sole discretion, an unreasonable or disproportionately large load on the Service’s infrastructure; (ii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Service; or (iii) bypass any measures the Services may use to prevent or restrict access to the Services.

4. Changes to Terms of Use. The Company reserves the right in its sole discretion, to modify, update, or otherwise revise these Terms of Use at any time. Such revisions shall be effective immediately upon posting revised Terms of Use on the Services. Company shall notify Users of any material changes to these Terms of Use. By using the Services after the Company has posted any modification, updates, or revisions, Users agree to be bound by such revised Terms of Use. Users shall have the right to immediately terminate these Terms of Use by terminating any use of or access to the Services, if any modification, update, or other change to these Terms of Use is not acceptable to Users.

5. Intellectual Property Ownership.

a.Users acknowledge and agree that the trademarks of the Company (the “KWEV Marks”), the Services, and the look and feel of any content accessible through kwev.com are proprietary, original works of authorship of the Company, or licensors of the Company, protected under United States and worldwide copyright, trademark, and trade secret laws of general applicability (“Company IP”). Users further acknowledge and agree that all right, title and interest in and to the Company IP are and shall remain with the Company or its licensors. Users agree not to contest or infringe these rights, directly or indirectly, at any time. Without the prior written consent of the Company, Users may not use or modify the Company IP.

b.Except as otherwise set forth to the contrary in these Terms, Company acknowledges and agrees that information submitted by Users to Company as part of registration, and any Suggestions, Financial History, Usage Data or Log Data submitted to or derived through the use of the Services (“User Content”) remain Users’ property, and Company does not claim any ownership of the copyright or other proprietary rights in such information and User Content. Users agree that Company may retain copies of all registration information and use such information and User Content as reasonably necessary for or incidental to its operation of the Services and as described in these Terms of Use and the Company’s Privacy Policy, and in addition to the license granted under Section 2(c), grants to the Company a non-exclusive, revocable, worldwide, royalty free license to use, copy, publish, reproduce, prepare derivative works, distribute, and display the registration information, or any derivative works thereof, on the Services. Such license shall be deemed granted as of the moment of registration without the necessity of any further action on the part of either party.

c.The Company makes no representation or warranties with respect to the reliability or performance of the Services, and will not be liable to anyone for losses, damages, liabilities, settlements, causes of actions, or other claims arising out of or due to the use of the Services (including, but not limited to, any alleged damage to a User’s vehicle). Users hereby represent and warrant that they understand and agree to such Company disclaimers. Users hereby waive any such claims it may have against the Company arising out of or in any way related to User’s access to or the use of the Services.

d.Users shall indemnify and hold harmless the Company, and its respective officers, directors, employees, shareholders, members, managers, and agents, from and against any and all claims, demands, liabilities, and actions, including the payment of all legal expenses, including reasonable attorney’s fees and costs, arising out of or connected with any claim that (i) the User Content or any portion of the content infringes the rights of any third-party.

e.Users agree not to challenge the Company’s rights in and to the Services, or to take any action inconsistent with the provisions of this Section 5 of these Terms of Use.

6. Links to Other Services. The Services are integrated with and link to other Services (“Linked Services”).

a.The integration has been provided for Users’ convenience and, as such, Users access the Linked Services at their own risk. The Linked Services are not under Company’s control, and Company is not responsible for the content of any Linked Services. A link does not imply endorsement of, sponsorship of, or affiliation with the linked site by Company. Without limiting the generality of the foregoing, the Company is not responsible and shall have no liability for any viruses or other illicit code that results from accessing the Linked Services.

b.Users acknowledge and agree that they are simultaneously bound by each Linked Service’s rules regarding posting, storing, and using personal information on the Linked Services and are solely responsible for any liability that arises from or in relation to its breach of any such rules.

7. Assignment. The Company, in its sole discretion, may freely assign these Terms of Use.

8. Interruptions to the Services. Users acknowledge that access to the Services may from time-to-time be unavailable to Users, whether because of technical failures or interruptions, intentional downtime for Services or changes to the Services, or otherwise. Users agree that any modification of the Services, and any interruption or unavailability of access to the Services shall not constitute a default of any obligations of the Company under these Terms of Use, and the Company shall have no liability of any nature to Users for any such modifications, interruptions, unavailability, or failure of access.

9. Technical and Customer Support. Users may contact Company for technical support using the following email: driver_support@kwev.com.

10. User Responsibilities and Obligations. Users represent, warrant, and covenant the following:

a.Users have all rights, title and interest, including all copyright rights and other intellectual property rights, in and to the content they submit.

b.Users shall not knowingly register with or submit any information or content that is false or misleading, including any content with any false or misleading information.

c.Users shall not use their accounts to breach the security or gain access to the account of any other Users.

d.By using the Services, these Terms of Use will be valid, binding and enforceable with respect to Users in accordance with these terms. The performance of Users’ obligations under these Terms of Use will not constitute a breach of any other agreement by which Users are bound.

e.These Terms of Use, upon use of the Services, will be valid, binding and enforceable in accordance with its terms with respect to Users.

f.The provisions of the services provided under these Terms of Use and the fulfillment of Users’ obligations as contemplated under these Terms of Use are proper and lawful.

g.Users are not and shall not be under any restriction or prohibition related to the performance of its obligations under these Terms of Use.

h.Users are responsible for ensuring that all activities that occur in connection with its administration and/or use of the Services comply with these Terms of Use. Users acknowledge and agree that Company’s responsibilities do not extend, in any way, to Users or Charging Site Hosts internal management or administration of the Services and, with respect thereto, Company is merely a service provider and third party data-processor. Except for any applicable service fees which may be charged to you with your consent, Company does not exercise control over pricing or pricing policies for use of Charging Stations via the Services.

i.Users are responsible for the payment of all fees owed to Company in connection with use of their registered account or RFID card on the Service, including fees incurred by a third party that has access to your mobile device or RFID card. In order to prevent fraudulent charges, it is the User’s responsibility to contact the Company immediately in the event of (i) the loss or theft of their RFID card or (ii) any other circumstances that could lead to the unauthorized use of their account.

j.Users shall provide Company with accurate, current and complete registration information.

k.Users shall be solely responsible for proper use of the Service, including, but not limited to: (i) understanding and agreeing to the applicable pricing and pricing policies set forth by the Site Host for the Charging Station, (ii) understanding and agreeing to any additional or applicable terms and conditions, (iii) choosing the correct connector to connect their electric vehicles to the Charging Station, (iv) verifying that the Charging Station has been activated through QR code, station ID or key fob, (v) if applicable, confirming that the payment method has been activated, and (vi) correctly securing the connector to the electric vehicle and verifying that charging properly commences.

l.Users are either (i) eighteen (18) years or older, or (ii) if under the age of eighteen (18) years, at least the age of sixteen (16) years of age and are accessing the Service with the knowledge and consent of a parent or legal guardian, who will also be deemed to have agreed to this Agreement.

m.Any information used by any User to access the Services, including without limitation, any User identification or password to the Services, shall be maintained by Users as confidential and available exclusively for Users, as appropriate, as provided in these Terms of Use (“Confidential Login Information”). Users shall refrain from sharing Confidential Login Information with any third-parties, except as otherwise required by law. You agree to: (i)immediately notify KWEV of any unauthorized use of your account or RFID device, or any other breach of security, (ii) immediately change your account password if you become aware that it has been compromised, and (iii) ensure that you fully exit from your account at the end of each session.

n.KWEV cannot and will not be liable for any loss or damage arising from a User’s breach of or failure to comply with this Section 10 (User Responsibilities and Obligations).

11. Confidential Information. Except as set forth in Section 2, as ordered by a court of competent jurisdiction or as otherwise required by law, Company shall refrain from sharing Confidential Login Information and any other confidential User information. Users shall adhere to their confidentiality obligations set forth in Section 10.

12. No Warranty; Disclaimer.

a.THE LICENSE GRANTED TO USERS UNDER THESE TERMS OF USE, INCLUDING THE SERVICES AND ALL OTHER MATERIALS, INFORMATION, PRODUCTS, AND SERVICES INCLUDED THEREIN, IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY OF ANY NATURE. WITHOUT LIMITING THE GENERALITIES OF THE FOREGOING, YOU EXPRESSLY UNDERSTAND AND AGREE YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK.

b.THE COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES TO THE SERVICE AND ANY CHARGING STATIONS AND CHARGING STATION HARDWARE ACCESSIBLE VIA THE SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE,MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, COURSE OF DEALING OR COURSE OF PERFORMANCE.

c.YOU EXPRESSLY UNDERSTAND AND AGREE THAT VEHICLE CHARGING IN CONNECTION WITH YOUR USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK, AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR VEHICLE OR ANY COMPUTER SYSTEM THAT RESULTS FROM YOUR USE OF THE SERVICE TO CHARGE A VEHICLE.

13. Limitation of Liability.

a.THE COMPANY’S ENTIRE AND CUMULATIVE LIABILITIES TO USERS, OR ANY OTHER PARTY, FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THESE TERMS OF USE, USE OF ANY CHARGING STATION AND/OR THE SERVICES OR CONTENT AVAILABLE ON THE SERVICES SHALL NOT EXCEED AN AMOUNT EQUAL TO $50.00.

b.WITHOUT LIMITING AND NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL THE COMPANY BE LIABLE TO ANY USER FOR ANY LOSS OF BUSINESS OR ANTICIPATORY PROFITS OR ANY INDIRECT, SPECIAL, INCIDENTAL, GENERAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, EVEN IF FORESEEABLE OR IF THE COMPANY OR USER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGE OR EXPENSE.

c.WITHOUT LIMITING THE FOREGOING, USERS ACKNOWLEDGE AND AGREE THAT THE COMPANY DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM THE SERVICES AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD-PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD-PARTIES CAN IMPAIR OR DISRUPT USERS’ OR OTHER THIRD-PARTIES’ CONNECTIONS TO THE INTERNET, OR PORTIONS OF THE INTERNET. ALTHOUGH THE COMPANY WILL USE COMMERCIALLY REASONABLE EFFORTS TO TAKE ALL ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, THE COMPANY CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, THE COMPANY DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.

d.YOU ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS SECTION 13 (LIMITATION OF LIABILITY) ARE AN ESSENTIAL BASIS OF THE BARGAIN AND OF THE ALLOCATION OF RISKS BETWEEN THE PARTIES. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OR PART OF THE SERVICES, OR WITH ANY OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES.

14. Injunction. The Company and Users agree that a breach or violation of Sections 3, 5, 10, or 11 of these Terms of Use will result in immediate and irreparable injury and harm to the Company. In such event, the Company shall have, in addition to any and all remedies of law and other consequences under these Terms of Use, the right to an injunction, specific performance or other equitable relief to prevent the violation of the obligation under these Terms of Use; provided, however, that, this shall in no way limit any other remedies which the Company may have, including, without limitation, the right to seek monetary damages.

15. Termination. The Company may at any time and without notice terminate User’s license upon the occurrence of any of the following events: (1) User requests to terminate account; or (2) User breaches or defaults under any material term of condition of these Terms of Use; (3) User fails to timely pay any required fees, or (4) for convenience.

16. Indemnification. In addition to Users’ obligation to indemnify under Section 5(d), Users agree to indemnify and hold harmless the Company and its officers, directors, employees, shareholders, members, and manager from and against any and all claims, demands, liabilities, and actions, including the payment of all legal expenses, including reasonable attorney’s fees and costs, arising out of or connected with (i) these Terms of Use, (ii) the submission of any User Content that infringes on or constitutes a misappropriation of any patent, copyright, or trade secret, or any other intellectual property right of any person or entity anywhere in the world or (iii) any disputes between Users and Site Hosts relating to the Company’s Services or any agreements made between those Users and Site Hosts. The Company shall have the right to control its own defense and engage legal counsel acceptable to the Company.

17. Proprietary and other Notices. Users agree that they will not alter or remove any trademarks or copyright notices and disclaimers located or used on, or in connection with, the Services or any printouts of the Services allowed under these Terms of Use.

18. Fees and Payment.

a.User will pay Company all applicable fees and any related taxes (other than taxes on Company’s income) for use of the Services.

b.User authorizes the Company to temporarily charge one dollar ($1.00) during the set-up of each payment account.

c.User authorizes Company to charge the applicable fees to the payment card or other payment account that User submits to Company and agrees that a third-party processing company may store such financial information. Users will be automatically charged for all fees and taxes as they become due. Users’ obligation to pay fees continues until the payment is satisfied. If User’s payment card issuer, account or bank does not honor charges User has paid using User’s card, account or bank, User will remain directly liable to Company for all unpaid amounts. User may cancel his or her registration by sending an email to driver_support@kwev.com or through the User’s account on the KWEV Network mobile app.

d.Non-payment of any fees or other sums due to Company related to use of the Services will result in termination. Company may, at its discretion, also appoint an outside debt collection agency to collect amounts owed to Company. User agrees to reimburse Company for all costs that Company incurs in enforcing its collection of User’s unpaid amounts, including debt collection agency fees, reasonable attorneys’ and legal fees and court costs.

e.All overcharges or billing disputes must be reported within thirty (30) days of the date that the dispute occurred. If User disputes a charge to his or her payment card issuer, account or bank that, in the Company’s reasonable judgment, is a valid charge under the provision of this Agreement, User agrees to reimburse the Company for its reasonable costs incurred in connection with the investigation of the matter. Company will refund any such fees if the investigation finds that User’s action in disputing the charge to his or her card issuer, account or bank was justified because the charge was not, in fact, a valid charge under the provisions of this Agreement.

f.All fees and charges are non-refundable and there are no refunds.

19. General.

a. Notices. All notices, demands, or consents required or permitted under these Terms of Use shall be in writing and shall be delivered via email, return receipt requested at the following addresses:If to the Company:

legal@kwev.com

If to User:

At User’s e-mail associated with their account.

The foregoing addresses may be changed from time-to-time by updating these Terms of Use or updating the User’s email address for the User’s account, as applicable.

b. Governing Law; Submission to Jurisdiction. These Terms of Use shall be governed by and construed in accordance with the laws of the state of New York. Users acknowledge that by using the services provided under these Terms of Use, Users have transacted business in the state of New York. By transacting business in the state of New York, Users voluntarily submit and to, and waive any defense to the jurisdiction of courts located in Richmond County, state of New York, as to all matters relating to or arising from these Terms of Use.

c. Costs of Litigation.If any action is brought by either party against the other party regarding the subject matter of these Terms of Use, the prevailing party shall be entitled to recover, in addition to any other relief granted, reasonable attorney’s fees, costs, and expenses of litigation.

d. Severability. Any provision of these Terms of Use which is determined by a court of competent jurisdiction to be invalid or otherwise unenforceable shall not invalidate or make unenforceable any other provision of these Terms of Use.

e. No Waiver. The waiver by either party of, or the failure of either party to take action with respect to, any breach of any term, covenant or condition contained in these Terms of Use shall not be deemed to be a waiver of such term, covenant or condition, or subsequent breach of the same, or any other term, covenant or condition contained in these Terms of Use. The subsequent acceptance of any payment due under these Terms of Use by any party shall not be deemed to be a waiver of any preceding breach of the party making payment with respect to any term, covenant or condition contained in these Terms of Use.

f. Entire Agreement; Modifications Only in Writing. These Terms of Use (i) constitute the entire agreement between the Company and Users concerning the Services, content, and all other subject matter of these Terms of Use; and (ii) supersede any contemporaneous or prior proposal, representation, agreement, or understanding between the parties.

g. No Third-Party Beneficiaries. These Terms of Use are for the sole and exclusive benefit of the Company and Users and are not intended to benefit any third-party. No third-party may claim any right or benefit under or seek to enforce any of the terms and conditions of these Terms of Use.

h. Survival. The provisions of Sections 2(c), 5, 10, 11, 12, 13, 14, 16, 17, 18 and 19 of these Terms of Use shall survive the termination of these Terms of Use.

i. Binding Contract. THIS IS A BINDING LEGAL CONTRACT. ALL USERS AGREE TO BE BOUND BY THESE TERMS OF USE, AND BE LIABLE TO THE COMPANY FOR ANY NONCOMPLIANCE WITH THESE TERMS OF USE. IF ANY USER DOES NOT AGREE TO THESE TERMS OF USE, USER SHOULD NOT USE THE SERVICES.

Last Updated April 4, 2022

By using our mobile app or by signing up to use KWEV electric vehicle charging stations (“Services”), you agree to comply with and be bound by the following terms and conditions of service (“Terms”). 

Please review these Terms carefully. If you do not agree to these Terms, you should not use our Services.

These Terms are subject to change by KWEV LLC (“KWEV,” “us”, “we”, or “our”) without prior written notice at any time, in our sole discretion. The latest version of these Terms will be posted on the app, and you should review these Terms before purchasing any Services. Your continued use of the Services after a posted change in these Terms will constitute your acceptance of and agreement to such changes.

KWEV also offers RFID (radio-frequency identification) cards branded with the KWEV name, or, in some instances, with the brand of a third party (“Branding Affiliate”). Regardless of such branding, KWEV remains solely responsible for the operations of KWEV, including KWEV cards. Except with respect to the negligence or willful misconduct of a Branding Affiliate, you agree to release and hold harmless all Branding Affiliates from any causes of action related to the KWEV cards. 

PRICES AND PAYMENT

All prices posted on our app are subject to change without notice. The price charged for the Service will be the price displayed on the app (“Fees”).

You agree to pay such Fees prior to initiating the charging session.

We accept only credit cards for payment of Fees. You represent and warrant that (is) the credit card information you provide to us is true, correct, and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including all applicable taxes, if any.

USER RESPONSIBILITIES

To use the Services, you may be required to provide information about yourself including your name, email address, username and password and other personal information. You agree that any registration information you give to us will always be current, correct, and complete. Your account must not be used for any illegal or unauthorized purpose. 

You agree to comply with any and all applicable laws and regulations, as well as any policies and rules of the owner of the KWEV charging station and/or the property owner on which the KWEV charging station is located.

Promptly update via the app any changes to your personal information and payment information.

Offers from Our Partners: 

From time to time, you may receive offers through KWEV from other organizations. Acceptance and performance under those offers is strictly between you and those organizations. KWEV does not assume responsibility for any performance by these organizations and you agree to look solely to them, and to release KWEV from any liability, with respect to any offers you accept. These organizations conduct business for themselves and are not part of the KWEV business. As such, you should always make sure to review their terms of service and privacy policies so that you may better understand what is being offered, what is expected of you and what may be done with any personally identifying information you provide to them.

Indemnification

You agree to indemnify, defend, and hold KWEV and its directors, officers, employees, agents, distributors, and affiliates (“Indemnitees”), harmless from all liability for any loss, damage or injury to persons or property arising from or related to your misuse of the Services or otherwise for your negligence or misconduct. You shall provide us with such assistance, without charge, as we may request in connection with any such defense, including, without limitation, providing us with such information, documents, records, and reasonable access to you, as we deem necessary. You shall not settle any third-party claim or waive any defense without our prior written consent.

Disclaimer

YOUR USE OF THE SERVICES AND KWEV CHARGING STATIONS IS AT YOUR SOLE RISK. THE KWEV CHARGING STATIONS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. KWEV EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. KWEV DOES NOT WARRANT THAT (i) THE KWEV CHARGING STATIONS WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR (ii) THE OPERATION OF THE KWEV CHARGING STATIONS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.

Limitation of Liability 

YOU EXPRESSLY UNDERSTAND AND AGREE THAT UNDER NO CIRCUMSTANCES WILL KWEV BE LIABLE OR RESPONSIBLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL (INCLUDING DAMAGES FROM LOSS OF BUSINESS, LOST PROFITS, LITIGATION, OR THE LIKE), SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN ANY MANNER CONNECTED WITH THE USE OR PERFORMANCE OF THE SERVICE OR KWEV CHARGING STATIONS.

To the maximum extent allowed by law, you agree to, and hereby do, release the Indemnitees from all loss, damage, or injury whatsoever, known or unknown, arising out of or in any manner connected with the Services, including the use of the KWEV Charging Stations. You agree that none of the Indemnitees will incur any obligation or liability for any such loss, damage, or injury to the maximum extent allowable by law. 

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMER, LIMITATIONS AND RELEASE MAY NOT APPLY TO YOU.

Force Majeure

Neither party shall be liable to the other for any failure to perform any obligation under these Terms  which is due to an event beyond the control of such party including but not limited to any Act of God, pandemic, terrorism, war, political insurgence, insurrection, riot, civil unrest, act of civil or military authority, uprising, earthquake, flood or any other natural or man-made eventuality outside of our control, which causes the termination of an agreement or contract entered into, nor which could have been reasonably foreseen. Any Party affected by such event shall forthwith inform the other Party of the same and shall use all reasonable endeavors to comply with the terms and conditions contained herein.

Applicable Law; Arbitration

You agree that the laws of the state of New York, excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods and any conflict of law provisions that would require application of another choice of law will govern these Terms and any dispute that may arise between you and KWEV or its affiliates.

Any dispute arising from or relating to these Terms shall be arbitrated in New York County, New York. The arbitration shall be administered by JAMS in accordance with its Comprehensive Arbitration Rules and Procedures, and judgment on any award may be entered in any court of competent jurisdiction. If the Parties agree, a mediator may be consulted prior to arbitration. All claims shall be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. The prevailing party in any dispute arising out of this Agreement shall be entitled to reasonable attorneys’ fees and costs.

Severability 

If any provision of these Terms shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect.

Waiver

The failure of KWEV to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. Any waiver of these Terms by KWEV must be in writing and signed by an authorized representative of KWEV. Failure of either Party to insist upon strict performance of any provision of this or any Agreement or the failure of either Party to exercise any right or remedy to which it, he or they are entitled hereunder shall not constitute a waiver thereof and shall not cause a diminution of the obligations under this or any Agreement. No waiver of any of the provisions of this or any Agreement shall be effective unless it is expressly stated to be such and signed by both Parties.

Termination

KWEV may terminate these Terms at any time, with or without notice, for any reason.

Relationship of the Parties

Nothing contained in these Terms or your use of the Site shall be construed to constitute either party as a partner, joint venturer, employee, or agent of the other party, nor shall either party hold itself out as such. Neither party has any right or authority to incur, assume or create, in writing or otherwise, any warranty, liability or other obligation of any kind, express or implied, in the name of or on behalf of the other party, it being intended by both parties that each shall remain independent contractors responsible for its own actions.

Entire Agreement

This Terms of Use constitutes the entire agreement between you and KWEV and governs the terms and conditions of your use of the Services, and supersedes all prior or contemporaneous communications and proposals, whether electronic, oral, or written, between you and KWEV with respect to the Services. Notwithstanding the foregoing, you may also be subject to additional terms and conditions, posted policies (including but not limited to the Privacy Policy), guidelines, or rules that may apply when you use the Services. 

Contact Us

You may contact us for any questions at privacy@kwev.com

Product Warranty Terms

The following warranties apply to KWEV, LLC (“KWEV“) level 2 electric vehicle charging products that meet all of the following conditions: (a) the product was purchased by a contractor on behalf of the end-user or by the end-user from an authorized KWEV distributor who purchased the product directly from KWEV and from no other source; (b) if the product has been installed, the entire installation was performed by a licensed electrician or under the supervision of a licensed electrician and the product was in its original, unopened and new condition at the time of installation. By way of example only and not in limitation, products purchased from anyone other than KWEV or its authorized distributors, including from third party resellers on-line through Amazon, or any other service, are not covered by any KWEV warranty. 

KWEV disclaims all representations and warranties with respect to all other products, including without limitation products that have been purchased from any person or entity other than an authorized KWEV distributor, or installed by any person or entity other than a licensed electrician or under the supervision of a licensed electrician, and all products that are used or are otherwise not in their original KWEV packaging at the time of installation.

General Product Warranty. Each KWEV product will be free from defects in materials and workmanship for a period of one (1) year from the date of delivery to the end-user.

Three (3) Year Product Warranty. Each KWEV level 2 charging station including the electronics and components of its properly installed product will be free from defects in materials and workmanship for a period of three (3) years from the date of delivery to the end-user. Exceptions apply as defined in product specification sheets which are incorporated herein by reference. Defects in material or workmanship do not include improper installation or operation, alterations, stray charging cables, power surges or overheating due to external conditions. 

The 3 Year Product Warranty includes the following performance criteria:

• The device will operate within the specifications
• Equipment finish will not exhibit cracking, peeling, excessive fading or corrosion

KWEV will either replace the product, a component or part of the product with the same or similar model that  fails, to meet this Limited Warranty and not provide any other remedies. A KWEV product can be returned to KWEV for replacement; or KWEV can directly ship the replacement product.

Warranty Claims can be made contacting KWEV Customer Service at 1-888-505-5938 Monday – Friday 9:00 am to 5:00 pm eastern time. KWEV may request the product be returned or discarded, depending on criteria determined by KWEV at the time of the claim.

Extended Warranty (5 Year Warranty). The extended product warranty shall only apply to the KWEV products that were purchased with an extended warranty and registered within 30-days of receipt. The warranty period will be five (5) years rather than the standard three (3) year period.

Pedestal Warranty. Each KWEV Pedestal will be free from defects in materials and workmanship for a period of (1) year from the date of delivery to the end-user. Powder Coat paint finish on products other than natural aluminum or brass will not exhibit cracking, peeling, excessive fading or corrosion during the warranty period. Pedestals must be installed by a properly insured and licensed contractor using the supplied anchor bolts or equivalent and mounting templates. Using a pedestal product in any manner other than as disclosed in the Application Specification automatically voids the warranty and may cause failure resulting in injury, death or significant property damage.

Exceptions and Other Limitations. None of the warranties stated herein shall apply and KWEV makes no representations or warranties with respect to:

1. problems caused by acts of god including without limitation lightning strikes;
2. problems caused by any improper action or failure to act by any person or entity other than KWEV, including without limitation problems caused by improper installation by the buyer, an authorized KWEV distributor, or any other person or entity;
3. any housing or parts that are pierced for any reason, including without limitation, piercing caused by installation of additional conduits, accessories or any other purpose. The installation must be sealed properly to maintain water tight operation; any piercing will void the KWEV warranty;
4. using or installing a product in any manner other than as disclosed in the KWEV Owner’s Manual; and
5. To the extent that KWEV’s warranty covers costs for services under the such costs must be approved by KWEV prior to incurring such costs. Failure to secure such approval will result in voiding that portion of the warranty and KWEV reserves the right to reject payment for such costs.

Remedy. KWEV’s obligations for breach of warranty shall be limited to what is stated in the relevant warranties above and provided that buyer gives KWEV written notice and returns the defective product to KWEV in accordance with KWEV’s return material authorization (RMA) policies, and KWEV confirms the defect. Except as otherwise stated herein and approved by KWEV’s in advance of any costs, Buyer is responsible for all costs to de-install defective products and re-install replacement or repaired products and KWEV shall not be liable for labor or other costs related to de-installation or re-installation.

Disclaimer. The foregoing warranties are in lieu of, and KWEV expressly disclaims, all other representations, guarantees and warranties, express or implied in fact or by law, including without limitation all warranties of merchantability or fitness for a particular purpose or otherwise. The foregoing warranties state KWEV’s entire and exclusive liability, and buyer’s sole and exclusive remedy, in connection with the products and all parts, their design, suitability for use, installation and operation.

Limitation of liability. KWEV shall not be liable under any theory of relief, including without limitation breach of warranty, breach of contract, tort (including negligence), strict liability, or otherwise, arising out of or related to any breach of warranty, any KWEV products and the use thereof, or any other acts or omissions of KWEV for: (i) any indirect, incidental, special or consequential damages, whatsoever (including without limitation, loss of anticipated value of a business or its reputation) or (ii) any damage or loss in excess of the price actually paid by buyer to the authorized KWEV distributor for the products that caused the damages. Any action by buyer must be commenced within one year after the cause of action has accrued.

Miscellaneous. These product warranty terms shall be governed by the laws of the State of New York. Buyer consents to the personal jurisdiction and venue of the courts of the State of New York. Any legal or equitable claim of any nature arising hereunder shall be filed and maintained in the state or federal courts in the State of New York and buyer agrees that such courts are a convenient forum for adjudication. In the event that suit is necessary to recover amounts owed KWEV, buyer shall be liable for reasonable attorney’s fees, interest and costs of collection. No agreement or understanding varying the terms and conditions hereof shall be binding upon KWEV or buyer unless in writing and signed by duly authorized representatives of both parties. These product warranty terms shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.