Property Owner Terms of Service - Canada
These SWTCH Energy Inc. (“SWTCH”, “us”, “we”, “our”) Network Service Terms (“Terms”) and any referenced agreements, including but not limited to an Order Form entered into between the parties and any applicable SWTCH policies, govern your subscription (“Subscription”) to the SWTCH electric vehicle network and charging services (“Service”). By accepting these Terms, either by clicking a box indicating acceptance or executing an Order Form that references these Terms, the property owner subscribing to the Service (“Subscriber”, “you”, “your”) agrees to and accepts these Terms. If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, "you" and "your" will refer and apply to that company or other legal entity.
Your use of SWTCH’s other products or services (including, without limitation, terms governing SWTCH’s charging as a service offering or SWTCH care) may be subject to additional terms, which will be made available to you at the time of access, subscription or purchase of the applicable product or service (collectively with Driver Terms, “Additional Terms”). Use of the Service’s charging capabilities as an EV driver requires users to enter into the SWTCH Driver Terms, available at https://charge.swtchenergy.com/en/infos/terms (“Driver Terms”). If you are a property owner who wishes to use Hardware to charge your EV, you acknowledge and agree that your use of the Service as a Driver will be subject to the Driver Terms.
These Terms were last updated on June 25, 2024, and are effective between SWTCH and Subscriber as of the date of your acceptance of these Terms. SWTCH will notify you of any material changes to these Terms. Any such revisions shall become effective thirty (30) days following the date of the notice and your acceptance of the revised Terms or decision to continue using the Service thereafter (as applicable) shall constitute acceptance of the revised Terms. SWTCH may require you to provide consent to the updated Terms before continuing to use the Service.
1. DEFINITIONS. In these Terms, these capitalized terms shall have the following meanings:
(i) "Business Day" shall mean any day that is not a Saturday, Sunday or "holiday" as such term is defined in the Province of Ontario.
(ii) “Claims” shall mean all claims, requests, accusations, allegations, assertions, complaints, petitions, demands, suits, actions, proceedings, and causes of action of any kind and description.
(iii) “Damages” shall mean any fee, cost, expense, expenditure, or other awards of any nature, including, but not limited to attorneys’ fees, witness fees, expert witness fees and expenses, and all other litigation costs and expenses.
(iv) “Driver” shall mean an eligible user wishing to charge EVs to whom the Service is made available by Subscriber. For clarity, a Subscriber may use the Service as a Driver in accordance with the Driver Terms.
(v) “Hardware” means the electric vehicle (“EV”) charging equipment and any supporting hardware provided by SWTCH that is required for a Driver to use the Hardware.
(vi) “Listing” means a description and additional information about the Charging Right of Use made available via the Service by Subscriber.
(vii) “Order Form” means a written document in the form provided by SWTCH which is executed by the parties and specifies the Term, Fees, renewal rate, and any other additional commercial terms agreed by the parties.
(viii) “Parking Spaces” means a parking space in a designated parking location (“Site”) where Drivers may access the Hardware.
(ix) “Privacy Policy” means the SWTCH privacy policy governing the maintenance and use of personally identifiable information, the latest version of which can be found: https://charge.swtchenergy.com/en/infos/privacy.
(x) “Site Preparation” shall mean, without limitation and unless otherwise stated by SWTCH in writing, performing any electrical service upgrades, installing conduit runs, running wiring, installing communication equipment to ensure data connectivity and any other Site work necessary to enable Hardware and provide adequate power and connectivity to the Parking Spaces according to the SWTCH site design guide.
(xi) “Subscriber Data” shall mean all electronic data or information submitted by Subscriber via the Service, including any personal information.
2. GENERAL
(a) About the Service. SWTCH provides an application and website as well as associated software, hardware, and support that enable Subscribers to: (i) assign Drivers rights of use arrangements to permit Drivers to charge their EVs using Hardware provided by Subscriber via SWTCH (the “Charging Right of Use”); and (ii) bill Drivers according to the terms of the Listing accepted by Drivers.
(b) Charging Right of Use. Drivers may enter into binding, revocable, temporary right of use arrangements with SWTCH, as an agent of the Subscriber, to use the Hardware. You appoint us your agent to enable provision of the Charging Right of Use and to process the Driver’s payment but acknowledge that we are not a party to the Charging Right of Use, and that it is a legal relationship between you and the Driver only. You acknowledge that SWTCH is not a landlord, real estate broker, or insurer. SWTCH has no control over the conduct of Drivers and disclaims all liability in this regard to the maximum extent permitted by law. In offering the Service to you, SWTCH acts as an agent of the Subscriber to assign Drivers the Charging Right of Use. Subscribers have sole discretion over who may use the Hardware at a Parking Spot and may instruct us to refuse to grant the Charging Right of Use to a Driver for any reason.
(c) Third-Party Services. The Service may integrate with or rely on third-party platforms and services that are not owned or controlled by SWTCH (collectively, “Third-Party Services”). You acknowledge and agree that use and enabling (as applicable) of any such Third-Party Services will be subject to any terms which govern and/or apply to such Third-Party Services. SWTCH does not endorse any such Third-Party Service and content available thereon and in no event shall SWTCH be responsible or liable for any products or services of such Third-Party Services.
3 INVOICING & PAYMENT
(a) Fees. Subscriber is required to pay fees (“Fee”) to receive access to the Service. The applicable terms governing a Subscriber’s Fees shall be set out in the Order Form or at the time of subscription (as applicable). All Fees are exclusive of any taxes, duties or levies assessed by applicable governmental authorities (“Taxes”). All Taxes (exclusive of any Taxes based upon SWTCH’s net income) shall be assumed by and paid for by Subscriber, not SWTCH, regardless of whether included in any invoice sent to Subscriber. SWTCH will provide you with at least thirty (30) days’ prior notice of any material modifications to your Subscription, including changes to Fees, before such changes take effect. All such changes will be effective thirty (30) days following the date of the notice.
(b) Invoicing. Fees are invoiced on the first day of each Subscription period’s billing cycle. Unless otherwise stated in your Order Form, the billing cycle is annual. All invoices are due within fifteen (15) days of the invoice date. Any incurred Fees not received from Subscriber by their due date may accrue (except with respect to Fees then under reasonable and good faith dispute), at our discretion, late charges at the rate of 1.5% of the outstanding balance per month (18% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
(c) Overdue Payments. If any amount owing by the Subscriber is more than thirty (30) days overdue, SWTCH may, without otherwise limiting any other rights or remedies available to SWTCH at law, terminate the Subscription and suspend the provision of the Service. Subscriber shall be liable for all costs, including reasonable legal fees incurred by SWTCH in connection with SWTCH’s efforts to collect any past due amounts.
4. SITE PREPARATION
(a) Site Preparation. Unless otherwise stated by SWTCH in writing, Subscriber shall be responsible for performing any Site Preparation that is required in the sole discretion of SWTCH pursuant to SWTCH’s Site Preparation guidelines to permit the installation of the Hardware. All Site Preparation work performed by a Partner or other third party on behalf of Subscriber shall be performed pursuant to Additional Terms or other third-party terms between such Partner or other third party and Subscriber. Subscriber shall obtain all licenses, consents, permissions and/or permits necessary to perform the Site Preparation. As of the date of installation of the Hardware, the Subscriber represents and warrants to SWTCH that the Subscriber has obtained all necessary consents, permissions, and approvals from the authority responsible for the management of the Site.
(b) SWTCH Partners. SWTCH provides a service under which SWTCH’s operations and maintenance partners (each, a “Partner”) can assist Subscriber with Site Preparation and Hardware installation. Engagement of Partners will require Subscriber to enter into Additional Terms. Unless Subscriber enters into Additional Terms to the contrary, SWTCH makes no representation or warranty of any kind, nor does SWTCH take or assume any liability in connection with the Partner’s efforts to assist with Site Preparation or Hardware installation.
5. HARDWARE INSTALLATION AND MAINTENANCE
(a) Packing and Delivery. Shipments of any Hardware ordered under an Order Form are subject to SWTCH’s availability schedule. SWTCH shall make every reasonable effort to meet any delivery date(s) quoted or acknowledged in an Order Form. However, SWTCH will not be liable for its failure to meet such date(s). All Hardware shall be packed, if appropriate, for shipment and storage in accordance with standard commercial practices. Title to purchased Hardware (other than the Cloud Service and/or firmware embodied therein) passes to Subscriber when Hardware is provided by SWTCH to the carrier shipping the Hardware. SWTCH bears all responsibility for loss of or damage to Hardware during initial shipment and until such Hardware is received by Subscriber.
(b) Installation and Maintenance. Unless Subscriber enters into Additional Terms to the contrary (such as terms governing the SWTCH care service under which Partners provide Subscriber with Hardware operation and maintenance services), Subscriber shall be solely responsible for: (i) purchasing and installing Hardware; (ii) ensuring Hardware functions in the manner required for Subscriber to receive the Service; (iii) servicing, repairing, modifying, and adjusting Hardware; and (iv) all obligation and liability with respect to the possession of the Hardware, and for its use and operation during the Term.
(c) Inspection. If Subscriber does not engage a Partner to assist with Site Preparation and Hardware installation, SWTCH may require you to pay the then-current Site Preparation service fee for SWTCH to conduct a mandatory re-dispatch fee to ensure Hardware was properly installed. Installed Hardware will need to be commissioned and activated by SWTCH for Subscriber to receive the Service and may require payment of SWTCH’s then-current fees for commissioning and/or activation, charged on a “per-station” basis.
(d) Subscriber’s Obligations. Unless otherwise stated in an Order Form or authorized by SWTCH in writing, the Subscriber agrees:
(i) that SWTCH will be the sole and exclusive provider of EV charging services to Subscriber during the Term;
(ii) that the Subscriber shall not interfere with, or cause its employees or agents to interfere with, SWTCH’s performance of its obligations and responsibilities under these Terms;
(iii) to provide SWTCH or its service partners with access, during normal business hours (9:00 a.m. to 5:00 p.m., Monday to Friday), to the Hardware to perform any required maintenance work;
(iv) that, at the Subscriber’s own expense and at all times during the Term, to keep the Parking Spaces reasonably free of debris and rubbish and in good repair and condition; and
(v) that the Hardware must be operated and maintained in accordance with any specifications communicated by SWTCH from time to time.
6. DRIVERS’ USE OF THE HARDWARE.
(a) Cloud Service. During the Term, SWTCH shall make available to the Subscriber a software offering that will permit the Subscriber to, among other things, designate which Drivers use the Hardware to charge an EV and the Driver Fees (the “Cloud Service”). The Cloud Service is an integral part of the Service and all references in these Terms to the Service shall be deemed to include the Cloud Service and Hardware.
(b) Driver Fees. The Charging Right of Use fees Drivers are charged for use of the Hardware under an accepted Listing (“Driver Fees”) shall be collected from the Driver by SWTCH and remitted to Subscriber, less any refunds contemplated herein. Subscriber acknowledges and agrees that no Driver Fees shall be paid to Subscriber unless they are first received from the Driver by SWTCH. Driver shall not have a right to set off any amount of Driver Fees owing from the Fees due to SWTCH hereunder.
(c) Cancellations and Refunds. You may cancel a Driver’s confirmed Listing. In certain circumstances, SWTCH may decide, in its sole discretion, that it is necessary or desirable to cancel a Driver’s confirmed Listing. In such cases, SWTCH will refund Driver the Driver Fees (as set out in the Driver Terms). Subscriber agrees that SWTCH and the relevant Driver will not have any liability to you for such cancellations or refunds.
(d) Charging Issues. If the Hardware provided by you to a Driver under a confirmed Listing malfunctions or if a Driver is unable to charge their EV for any reason beyond your control, SWTCH will work with the Driver to resolve the issue via SWTCH support. Drivers may request refunds for Driver Fees as a result of malfunctioning Hardware from you. As an agent for payment processing, SWTCH will only offer Drivers refunds of Driver Fees under this Section 6d if directed to do so by you.
(e) Troubleshooting and Feedback. Subscriber shall promptly share any Driver suggestions, enhancement requests, recommendations or other feedback, or any issues using the Hardware reported by Drivers to Subscriber. Subscriber acknowledges that SWTCH shall have a royalty-free, worldwide, irrevocable, perpetual, transferable, sublicensable, to use or incorporate in the Service any Driver suggestions, enhancement requests, recommendations or other Driver feedback provided to the Subscriber relating to the Service.
(f) Driver Disputes. Except as expressly set out herein, SWTCH shall not be responsible for any disputes arising between Driver and Subscriber relating to the Service, Site, Parking Spaces, or other dispute arising from the relationship, contractual or otherwise, between Driver and Subscriber, including but not limited to disputes relating to a Charging Right of Use or a Program Event. SWTCH does not endorse any Driver. We therefore recommend that you always exercise due diligence and care when deciding whether to contract or engage with a Driver. Except as expressly stated herein, SWTCH is not responsible for any damage or harm resulting from your interactions with Drivers.
7. RESPONSIBILITIES.
(a) SWTCH Responsibilities. In addition to obligations set forth in Section 5 of these Terms, SWTCH shall be responsible for:
(i) provisioning and operating, maintaining, administering and supporting the open-platform network of Hardware stations and the supporting vehicle charging application that is operated and maintained by SWTCH (the “Network”);
(ii) provisioning and operating, maintaining, administering, and supporting the applications offered on the Service;
(iii) operating the Network in compliance with all applicable laws; and
(iv) protecting the confidentiality and security of all personally identifiable information in accordance with all applicable laws and the Privacy Policy.
(b) Disclaimer. SWTCH shall not be responsible for, and makes no representation or warranty with respect to the following:
(i) continuous availability of electrical service to the Hardware;
(ii) continuous availability of any wireless or cellular communications network or Internet service or SWTCH network necessary for the continued operation by SWTCH of the Service or Network; or
(iii) availability of or interruption of the Network attributable to unauthorized intrusions.
(c) Personal Use. All use of the Service by the Subscriber shall comply with these Terms. All the Cloud Service account details and passwords are granted to Subscriber solely for Subscriber’s own use, and Subscriber shall keep all such information secure and confidential. The Subscriber shall use reasonable efforts to prevent, and shall be fully liable to SWTCH for, any unauthorized access to, use of or damage to the Network or Service arising from Subscriber’s breach of its obligations. The Subscriber shall immediately notify SWTCH upon becoming aware of any such unauthorized use.
(d) Restrictions. The Subscriber shall not:
(i) sell, resell, license, rent, lease or otherwise transfer the Service or any data collected or maintained by SWTCH in connection with the operation of SWTCH to any third party;
(ii) interfere with or disrupt the Service, the Network, servers, or networks connected to the Service, or disobey any requirements, procedures, policies, or regulations of networks connected to the Network;
(iii) attempt to gain unauthorized access to the Network or the Service or related systems or networks or any data contained therein, or access or use the Service through any technology or means other than those provided or expressly authorized by SWTCH;
(iv) reverse engineer, decompile or otherwise attempt to extract the source code of the Service, Network or any part of same, except to the extent expressly permitted or required by applicable law;
(v) create derivative works based on the Network, the Service, or any of the various SWTCH trademarks, service marks, trade names, logos, domain names, and other distinctive brand features and designations used in connection with the SWTCH (the “Marks”) and all other supplied material and/or developed by SWTCH;
(vi) remove, conceal or cover the Marks or any other markings, labels, legends, trademarks, or trade names installed or placed on the Hardware;
(vii) copy, frame or mirror any part of the Service;
(viii) access the Network or any part of the Service for any competitive purpose, or for any improper purpose whatsoever, including, without limitation, to build a competitive product or service or copy any features, functions, interface, graphics or “look and feel;”
(ix) use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Service or collect information about SWTCH users for any unauthorized purpose;
(x) upload, transmit or introduce any malicious code to SWTCH or the Service or Network;
(xi) use any of the Service if the Subscriber is a person barred from such use under the laws of Canada or of any other jurisdiction;
(xii) utilize the Service for any other purpose not expressly authorized herein; or
(xiii) permit a Driver or any other third party to do any of the foregoing.
(e) Damages Excluded. SWTCH shall not have any liability whatsoever to Subscriber with respect to damages caused by:
(i) electrical outages, power surges, brown-outs, utility load management or any other similar electrical service interruptions, whatsoever the cause;
(ii) interruptions in wireless or cellular service linking the Hardware to the Network;
(iii) interruptions attributable to unauthorized Service intrusions;
(iv) interruptions in services provided by any internet service provider not affiliated with SWTCH;
(v) interruptions attributable to accidents, vandalism, damage due to unavoidable catastrophes or natural disasters, seasonal maintenance, or environmental issues (including but not limited to damage from snow removal), or other Hardware problems caused by accidents, negligence, or misuse of the Service by Subscriber or a Driver; or
(vi) Subscriber’s use of the Service in breach of these Terms or in a manner not expressly authorized by SWTCH in writing.
8. PROPRIETARY RIGHTS.
(a) Reservation of Rights. Except as expressly stated hereunder, SWTCH and its licensors shall own and hold all right, title, and interest in and to the following:
(i) the Service and Network;
(ii) the Marks;
(iii) all other SWTCH supplied material developed or provided by SWTCH for the Subscriber’s use in connection with the Service; and
(iv) all entitlements to carbon credits arising from provision of the Service under these Terms, including but not limited to: (I) carbon credits created in the voluntary carbon market; and (II) compliance credits created through the provision of the Service pursuant to the Clean Fuel Regulations (SOR/2022-140).
The Subscriber shall immediately notify SWTCH if Driver or a third party, including any legal representative or government official:
(I) uses, tampers with, or attempts to use or tamper with the Hardware;
(II) provides Subscriber with any correspondence regarding the Service, the Site, or the Parking Spaces; or
(III) claims or attempts to claim carbon credits or any other entitlements with respect to the Service in a manner that infringes on the rights of SWTCH under Section 8(a)(iv).
(b) Restrictions. Subscriber shall not (or permit Driver or a third party to):
(i) create derivative works based on any of SWTCH’s intellectual property rights, including, without limitation, the Service, Network, Marks, patents, patent applications, patent rights, trademarks, trademark applications, trade names, service marks, service mark applications, copyrights, copyright applications, franchises, licenses, inventories, know-how, trade secrets, customer lists, proprietary processes and formulae, all source and object code, algorithms, architecture, structure, display screens, layouts, inventions, URL links, websites, development tools and all documentation and media constituting, describing or relating to the above, including, without limitation, manuals, memoranda and records (collectively the “Intellectual Property”);
(ii) copy, frame or mirror any part or content of the Intellectual Property;
(iii) reverse engineer any Intellectual Property right; or
(iv) access the Intellectual Property for any improper purpose whatsoever, including, without limitation, to build a competitive product or service, or copy any features, functions, interface, graphics or “look and feel” of the Intellectual Property.
(c) Feedback. SWTCH shall have a royalty-free, worldwide, irrevocable, perpetual, transferable, sublicensable, to use or incorporate in the Service any suggestions, enhancement requests, recommendations or other feedback provided by the Subscriber relating to the Service.
(d) SWTCH Marks. Subscriber shall not use any of the Marks for or with any products, except in the manner permitted pursuant to SWTCH’s usage guidelines or as expressly authorized by SWTCH in writing. From time to time, SWTCH may provide updated Mark usage guidelines, and the Subscriber shall immediately comply with such updated guidelines. The Subscriber shall not use or display any Mark (or any likeness of a Mark):
(i) as a part of the name under which the Subscriber’s business is conducted or in connection with the name of a business of the Subscriber or its affiliates;
(ii) in any manner that implies a relationship or affiliation with SWTCH;
(iii) in any manner that implies any sponsorship or endorsement by SWTCH;
(iv) in any manner that could be reasonably interpreted to suggest that any Subscriber content and services has been authored by, or represents the views or opinions of SWTCH;
(v) in any manner intended to disparage SWTCH, the Network, or the Service, or in a manner that is misleading, defamatory, infringing, libelous, disparaging, obscene or otherwise objectionable to SWTCH;
(vi) in any manner that violates any law or regulation; or
(vii) that is distorted or altered in any way (including squeezing, stretching, inverting, discoloring, etc.) from the original form provided by SWTCH.
The Subscriber shall not, directly or indirectly, register or apply for, or cause to be registered or applied for, any Marks or any Intellectual Property substantially or confusingly similar to Intellectual Property registered by SWTCH, or that is licensed to, connected with or derived from confidential, material or proprietary information imparted to or licensed to Subscriber by SWTCH. At no time will the Subscriber challenge or assist others to challenge SWTCH Intellectual Property (except to the extent such restriction is prohibited by law) or the registration of same by SWTCH. Upon termination of these Terms, the Subscriber will immediately discontinue all use and display of all Marks.
(e) Subscriber Data License. As between SWTCH and Subscriber, Subscriber and its licensors retain all rights, title, and interest in and to all Subscriber Data. Subscriber hereby grants SWTCH a non-exclusive, non-transferable, irrevocable, worldwide, royalty-free, fully paid-up license during the Term (and for thirty (30) days thereafter) to use and otherwise exploit the Subscriber Data as reasonably required to provide and improve the Service and meet its obligations under these Terms.
(f) Usage Data. During the Term, SWTCH will develop, create, and accrue information, records, reports, specification, information and other materials or data derived from Subscriber’s use of the Service, including without limitation, data, and statistics regarding the frequency of use of the Service by Subscriber and Drivers (collectively “Usage Data”). As between Subscriber and SWTCH, all rights to and in the Usage Data is the sole property of SWTCH. For clarity, all Usage Data created in the provision of the Service, and generation of data on the electricity supplied to each Driver, shall be the sole property of SWTCH. All right, title, and interest in and to the Usage Data, including all intellectual property rights therein are and will remain with SWTCH and its licensors. SWTCH acknowledges and agrees that it has no right, license, or authorization with respect to any of the Usage Data (including any intellectual property rights therein) except as expressly set forth in these Terms.
(g) Charging Programs. SWTCH shall be permitted to enroll Hardware or the Network into grid service programs, including but not limited to utility demand response programs and electricity markets participation programs (the “Programs”) in accordance with the rules as set forth by the grid operators (“Operator”). Some Programs might involve Subscriber participation and SWTCH will obtain Subscriber’s prior consent prior to enrolling a Subscriber into a Program. Once enrolled in a Program, Operators may enable utility response periods during which time the Service will be available at a reduced capacity (each such period, an “Program Event”). Subscriber agrees that SWTCH is the only party allowed to enroll the Hardware or Network the Program and agrees not to contract with Operators in a way that diminishes SWTCH’s rights under these Terms.
9. CONFIDENTIAL INFORMATION.
(a) Definition of Confidential Information. “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”) in connection with the Service, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including but not limited to business and marketing plans, know-how, technology, technical and financial information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
(b) Confidentiality; Protection. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms, except with the Disclosing Party’s prior written permission. The Receiving Party agrees to protect the Confidential Information of Disclosing Party in the same manner that it protects its own Confidential Information (but in no event using less than reasonable care).
(c) Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance if the Disclosing Party wishes to contest the disclosure.
(d) Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of these Terms, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
10 TERM AND TERMINATION.
(a) Term. Unless otherwise stated in the applicable Order Form, your Subscription shall be for a term of five (5) years from the date these Terms are accepted (the “Initial Term”). Upon the expiry of the then-current Term, your Subscription shall be automatically renewed for additional one (1) year renewal terms (the “Renewal Term”, collectively with the Initial Term, the “Term”).
(b) Upgrades and Downgrades. Should a Subscriber wish to modify the Service tier, the Subscriber shall provide at least sixty (60) days’ notice prior to the expiry of the then-current Term. Any changes to the Service tier resulting in new Fees will be effective and invoiced in accordance with the subsequent Term’s Subscription billing cycle. Subscriber may be required to enter into a new Order Form reflecting the change to the Service tier.
(c) Non-Renewal. Subscriber may terminate their Subscription by providing written notice of non-renewal at least sixty (60) days prior to the end of the then-current Term.
(d) Termination for Cause. These Terms may be immediately terminated by either party if:
(i) either party is in material breach of any of its obligations under these Terms and has not cured such breach within thirty (30) days of the date of its receipt of written notice of such material breach from the non-breaching party; or
(ii) a party becomes the subject of a petition in bankruptcy or any other proceeding related to insolvency, receivership, liquidation or an assignment for the benefit of creditors.
(e) Refunds. Upon any termination of these Terms for cause by Subscriber, SWTCH shall refund a pro-rata portion of any pre-paid Fees. In case of any attempted early cancellation or termination of a Subscription by the Subscriber not otherwise permitted by these Terms, Subscriber must pay the remaining balance of any outstanding or incurred Fees (including any interest incurred per Section 3(b) above) and no refunds will be issued for pre-paid Fees. For clarity, Subscriber shall be obligated to pay Fees for the period between the end of the agreed-upon Term and the date of early cancellation or termination of a Subscription by the Subscriber not otherwise permitted by these Terms.
(f) Result of Termination. Upon termination: (i) except as expressly set forth herein, all licenses and rights granted by SWTCH to Subscriber hereunder shall terminate; (ii) within thirty (30) days of the day of termination, Subscriber shall pay to SWTCH all Fees owing up to and including the effective date of termination (including any cancellation fees for non-renewal and any accrued interest, if applicable); and (iii) SWTCH may (at its sole discretion) enter the Site for the purpose of removing any equipment owned and provided by SWTCH in connection with the Service, excluding the Hardware. Upon termination, if there are any outstanding Order Forms that extend beyond the termination date of these Terms, the Terms shall remain in effect until all Order Forms have terminated, whereupon these Terms shall terminate. If these Terms are terminated for material breach by either party, all Order Forms shall terminate at the same time as these Terms terminate. The following provisions shall survive termination: 1-4, 5c, 6, 7b-e, 8, 9, 10f, and 11-24.
11. INDEMNIFICATION
(a) Indemnity by Subscriber. Subscriber shall indemnify, defend, and hold SWTCH and its affiliates, and any of their respective present and former directors, officers, members, shareholders, employees, representatives and agents (“SWTCH Indemnitees”), and all of its and their successors and assigns, harmless from and against any and all Damages from third-party Claims which arise out of or relate to:
(i) Subscriber’s negligent acts or omissions, recklessness or willful misconduct;
(ii) Subscribers use of the Service in a manner not authorized by SWTCH that results in the infringement of any third-party rights, including without limitation, infringement of any intellectual property rights or other third party right;
(iii) Subscriber’s unauthorized alterations to the Service, Network, Site or Parking Spaces that affect the ability of SWTCH to meet its contractual obligations;
(iv) Subscriber’s failure to obtain necessary permissions or consents from Site owners, Drivers (as applicable) or any other third party which are required for SWTCH to meet its obligations under these Terms;
(v) Subscriber’s failure to comply with any of its obligations under these Terms or Additional Terms it is subject to;
(vi) Subscriber Data or Usage Data;
(vii) Programs or Program Events; and
(viii) the loss of life or any injury to persons or property due to conditions existing at the Site unless any such Damages arise out of or relate to SWTCH’s negligence or willful misconduct (each a “Subscriber Claim”)
SWTCH will (I) promptly gives written notice of each Subscriber Claim to Subscriber; (II) give Subscriber sole control of the defense and settlement of each Subscriber Claim (provided that Subscriber may not settle or defend any Subscriber Claim unless it unconditionally releases SWTCH of all liability); and (III) provide to Subscriber, at Subscriber 's cost, all reasonable assistance in respect to each Subscriber Claim. For the purpose of this Section 11(a), SWTCH is acting as agent and trustee of SWTCH Indemnitees.
(b) SWTCH Indemnity. SWTCH shall indemnify, defend, and hold the Subscriber harmless from and against any and all Damages awarded to a third party that arise from third-party Claims made or brought against Subscriber alleging the Service misappropriates or infringes any intellectual property rights of a third party (each an “IP Claim”), subject to the condition that Subscriber (i) promptly gives written notice of each IP Claim to SWTCH; (ii) gives SWTCH sole control of the defense and settlement of all IP Claims (provided that SWTCH may not settle or defend any IP Claim unless it unconditionally releases Subscriber of all liability); and (iii) provides to SWTCH, at SWTCH’s cost, all reasonable assistance in respect to each IP Claim.
(c) Mitigation. If: (i) SWTCH becomes aware of an actual or potential IP Claim; or (ii) Subscriber provides SWTCH with notice of an actual or potential IP Claim, SWTCH may (or in the case of an injunction against Subscriber, shall), at SWTCH’s sole option and determination: (I) procure for Subscriber the right to continue to use the Service; or (II) replace or modify the Service with equivalent or better functionality so that Subscriber’s use is no longer infringing; or (III) if (I) or (II) are not commercially reasonable, terminate provision of the Service and refund to Subscriber any pre-paid Fees for any periods after the termination of the Service, less any outstanding Fees owed by Subscriber to SWTCH.
(d) Exclusions. The obligations in Sections 11(b) and (c) do not extend to: (i) any IP Claim based upon infringement or alleged infringement of any intellectual property right by the combination of the Service with other products, software or services not provided by SWTCH; (ii) any IP Claim related to any Subscriber Data, Usage Data, or a Third-Party Service; or (iii) any IP Claim related to any use or exercise of any other right in respect to the Service outside the scope of the rights granted under these Terms.
12. DISCLAIMER AND LIMITATIONS OF LIABILITY
(a) Exclusions of Liability. Except for either party’s indemnification obligations, Subscriber’s breach of SWTCH’s intellectual property rights, any claims for non-payment of Fees, or a party’s breach of its confidentiality obligations under these Terms, a party’s total liability to the other party for damages of any kind, whether based on breach of contract, tort (including negligence) or otherwise under these Terms will be limited to the Fees payable by Subscriber to SWTCH in the twelve (12) months immediately preceding the event giving rise to such claim.
(b) Limitation of Liability. In no event shall a party have any liability to the other party for any lost profits or for any indirect, special, incidental, or consequential damages (including, without limitation, damages for loss of business, loss of profits, business interruption, loss of data, lost savings or other similar pecuniary loss) however caused and, whether in contract, tort (including negligence) or under any other theory of liability, whether or not SWTCH has been advised of the possibility of such damages.
(c) Disclaimer. Except as expressly provided in these Terms, SWTCH makes no representations and provides no warranties or conditions of any kind, whether express, implied, statutory or otherwise, and specifically disclaims all implied representations, warranties and/or conditions, including any representations, warranties and/or conditions of merchantability, merchantable quality, durability, title, non-infringement, satisfactory quality or fitness for a particular purpose, to the maximum extent permitted by applicable law.
(d) Provision of Service. Subscriber acknowledges that, while the Service may interface with Third-Party Services, no representation or warranty is given by SWTCH in respect of any Third-Party Services. The Service is provided "as is" with no warranties whatsoever; SWTCH does not make any expressed, implied, or statutory warranties, claims or representations with respect to the Service, including, without limitation, warranties or conditions of quality, performance, integrity of data, non-infringement, merchantability, or fitness for use for a particular purpose. SWTCH further does not represent or warrant that the Service or Network will always be available, accessible, uninterrupted, timely, secure, accurate, complete and error-free or will operate without packet loss, nor does SWTCH warrant any connection to or transmission from the internet.
13. INJUNCTIVE RELIEF
The parties recognize that the obligations under these Terms are special, unique and of extraordinary character. The parties acknowledge the difficulty in forecasting damages arising from the breach of any of the obligations or restrictive covenants and that the non-breaching party may be irreparably harmed by the breaching party’s conduct. Therefore, the parties agree that the non-breaching party shall be entitled to elect to enforce each of the obligations and restrictive covenants by means of injunctive relief or an order of specific performance and that such remedy shall be available in addition to all other remedies available at law or in equity, including the recovery of damages from the non-breaching party’s agents or affiliates involved in such breach. In such action, the non-breaching party shall not be required to plead or prove irreparable harm or lack of an adequate remedy at law or post a bond or any security.
14. REPRESENTATIONS AND WARRANTIES.
(a) Mutual Warranties. Each party represents and warrants to the other party that it has the appropriate legal authority to enter into these Terms and that it has all requisite licenses and permits to perform its obligations hereunder and has the rights to grant the licenses contemplated hereunder.
(b) Subscriber Warranty. Subscriber represents and warrants to SWTCH that it has the appropriate legal authority to execute and be bound by the Terms, it has the full power and authority to permit SWTCH to install Hardware at the Site, that it has all requisite licenses and permits to perform pursuant to the Terms, the electrical usage consumed by the Hardware will not violate or otherwise conflict with the terms and conditions of any other agreement, that it is not bound by any other agreement which precludes it from complying with these Terms, and that it will perform its obligations under the Terms in compliance with any applicable laws, rules, regulations or ordinances.
15. HEADINGS; USE OF SINGULAR.
The headings in these Terms are used for convenience only and shall not be used to define, limit, or describe the scope of these Terms or any of the obligations set out in these Terms. In these Terms, the use of the singular shall be deemed to include plural wherever the context so requires and vice versa.
16. GOVERNING LAW
These Terms shall be governed by and construed in accordance with the laws of the Province of Ontario and laws of Canada, as applicable. The provincial and federal courts located in Toronto, Ontario shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to these Terms. The application of the United Nations Convention on Contracts for the International Sale of Goods to these Terms is expressly excluded.
17. DISPUTE RESOLUTION. You and SWTCH shall use all reasonable endeavors to discuss and resolve any dispute which may arise out of or in connection with these Terms or your receipt of the Service. If the dispute cannot be resolved within ten (10) business days, you and SWTCH will attempt to settle it in good faith by mediation. To initiate the mediation, a party must give notice in writing to the other party requesting a mediation. A copy of the request should be sent to ADR Chambers. The mediation will take place in Toronto, Ontario and the language of the mediation will be English. The mediation shall be governed by the substantive law of the Province of Ontario. If the dispute is not settled by mediation within thirty (30) days of commencement of the mediation or within such further period as the parties may agree to in writing, the dispute shall be referred to and finally resolved by binding arbitration at ADR Chambers. The arbitration shall be governed by the applicable rules of the Arbitration Act (Ontario), and arbitration proceedings shall take place in Toronto, Ontario before one (1) arbitrator. In the event the parties are unable to agree as to the appointment of an arbitrator for any reason, then such arbitrator shall be selected randomly by ADR Chambers. Each party shall bear its own legal costs in connection with a mediation and/or arbitration under this provision. All information pertaining to any mediation/arbitration under this Section 17 shall constitute Confidential Information.
18. NOTICES
Any notice required to be given pursuant to these Terms shall be deemed to have been given if personally delivered, sent by an e-mail or if mailed by prepaid registered mail to SWTCH or Subscriber. Notice given by prepaid registered post shall be deemed to be given on the fifth (5th) calendar day following the posting of such notice. Notice given by email shall be deemed to have been validly and effectively given and received on the date and at the time of transmission unless the transmission is given after 5:00p.m or unless the transmission is sent on a day which is not a Business Day, in which case the transmission shall be deemed to have been received on the first (1st) Business Day following transmission. Any notice required to be provided in accordance with these Terms shall be provided to a party at the details as provided in the applicable Order Form.
19. INSURANCE
At all times during the Term, the Subscriber shall keep and maintain insurance at the level of the industry standard, or higher if required by law. Upon request by SWTCH, the Subscriber shall furnish a certificate of insurance evidencing such insurance is in full force and effect. SWTCH shall maintain commercial general liability insurance coverage liability limit of $5,000,000 for each occurrence of bodily injury, death, or property damage. The insurance required under this Section 19 shall be maintained in effect during the Term, provided that any policies written on a “claims made” basis shall be maintained for at least two (2) years following termination of these Terms, however caused.
20. RELATIONSHIP OF PARTIES
The parties are independent contractors. These Terms does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Except as expressly provided in these Terms, there are no third-party beneficiaries to these Terms.
21. FORCE MAJEURE
If either party shall be delayed or hindered in or prevented from the performance of any act required under these Terms by reason of any strike, lockout, labor trouble, inability to procure materials or energy, failure of power, hurricane, restrictive governmental laws or regulations, riot, insurrection, picketing, sit-ins, war or other unavoidable reason of a like nature not attributable to the negligence or fault of such party, then the performance of such work or action shall be excused for the period of the unavoidable delay and the period for the performance of any such work or action will be extended for an equivalent period.
22. WAIVER
No delay or omission by either party hereto to exercise any right, remedy or power occurring upon any non-compliance or default by the other party with respect to these Terms shall impair any such right or power or be construed to be a waiver thereof. These Terms may be waived only in writing and only by the party that is entitled to the benefits of the terms or conditions being waived. A waiver by either of the parties hereto of any of the covenants, conditions or agreements to be performed by the other shall not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement herein contained (whether or not the provision is similar).
23. FINAL AGREEMENT
These Terms (including any referenced agreements including but not limited to an Order Form entered into between the Parties and any applicable Additional Terms) contain the whole agreement between the parties. Each party further acknowledges that it has not relied upon any oral or written representations made to it by the other or its employees or agents and has made its own independent investigations into all matters relevant to it. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be fully enforced.
24. ASSIGNMENT
Subscriber may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of SWTCH (not to be unreasonably withheld); provided, however, that Subscriber may assign these Terms in their entirety (including all Order Forms) if title is transferred pursuant to a sale of Subscriber’s real property which grants Subscriber the right to provide use of the Hardware to Drivers by virtue of owning that real property. To give effect to such assignment, Subscriber and assignee shall execute a novation agreement substantially in the form provided by SWTCH. SWTCH may assign these Terms in their entirety (including all Order Forms), without consent of Subscriber, to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all its business, shares, or assets. Subject to the foregoing, these Terms shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
Last Updated: June 25, 2024
Version 1.3
Property Owner Terms of Service - US
These SWTCH Energy Inc. (“SWTCH”, “us”, “we”, “our”) Network Service Terms (“Terms”) and any referenced agreements, including but not limited to an Order Form entered into between the parties and any applicable SWTCH policies, govern your subscription (“Subscription”) to the SWTCH electric vehicle network and charging services (“Service”). By accepting these Terms, either by clicking a box indicating acceptance or executing an Order Form that references these Terms, the property owner subscribing to the Service (“Subscriber”, “you”, “your”) agrees to and accepts these Terms. If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, "you" and "your" will refer and apply to that company or other legal entity.
Your use of SWTCH’s other products or services (including, without limitation, terms governing SWTCH’s charging as a service offering or SWTCH care) may be subject to additional terms, which will be made available to you at the time of access, subscription or purchase of the applicable product or service (collectively with Driver Terms, “Additional Terms”). Use of the Service’s charging capabilities as an EV driver requires users to enter into the SWTCH Driver Terms, available at: https://charge.swtchenergy.com/en/infos/terms (“Driver Terms”). If you are a property owner who wishes to use Hardware to charge your EV, you acknowledge and agree that your use of the Service as a Driver will be subject to the Driver Terms.
These Terms were last updated on June 25, 2024, and are effective between SWTCH and Subscriber as of the date of your acceptance of these Terms. SWTCH will notify you of any material changes to these Terms. Any such revisions shall become effective thirty (30) days following the date of the notice and your acceptance of the revised Terms or decision to continue using the Service thereafter (as applicable) shall constitute acceptance of the revised Terms. SWTCH may require you to provide consent to the updated Terms before continuing to use the Service.
1. DEFINITIONS. In these Terms, these capitalized terms shall have the following meanings:
(i) "Business Day" shall mean any day that is not a Saturday, Sunday or "holiday" as such term is defined in the State of Delaware.
(ii) “Claims” shall mean all claims, requests, accusations, allegations, assertions, complaints, petitions, demands, suits, actions, proceedings, and causes of action of any kind and description.
(iii) “Damages” shall mean any fee, cost, expense, expenditure, or other awards of any nature, including, but not limited to attorneys’ fees, witness fees, expert witness fees and expenses, and all other litigation costs and expenses.
(iv) “Driver” shall mean an eligible user wishing to charge EVs to whom the Service is made available by Subscriber. For clarity, a Subscriber may use the Service as a Driver in accordance with the Driver Terms.
(v) “Hardware” means the electric vehicle (“EV”) charging equipment and any supporting hardware provided by SWTCH that is required for a Driver to use the Hardware.
(vi) “Listing” means a description and additional information about the Charging Right of Use made available via the Service by Subscriber.
(vii) “Order Form” means a written document in the form provided by SWTCH which is executed by the parties and specifies the Term, Fees, renewal rate, and any other additional commercial terms agreed by the parties.
(viii) “Parking Spaces” means a parking space in a designated parking location (“Site”) where Drivers may access the Hardware.
(ix) “Privacy Policy” means the SWTCH privacy policy governing the maintenance and use of personally identifiable information, the latest version of which can be found: https://charge.swtchenergy.com/en/infos/privacy.
(x) “Site Preparation” shall mean, without limitation and unless otherwise stated by SWTCH in writing, performing any electrical service upgrades, installing conduit runs, running wiring, installing communication equipment to ensure data connectivity and any other Site work necessary to enable Hardware and provide adequate power and connectivity to the Parking Spaces according to the SWTCH site design guide.
(xi) “Subscriber Data” shall mean all electronic data or information submitted by Subscriber via the Service, including any personal information.
2. GENERAL
(a) About the Service. SWTCH provides an application and website as well as associated software, hardware, and support that enable Subscribers to: (i) assign Drivers rights of use arrangements to permit Drivers to charge their EVs using Hardware provided by Subscriber via SWTCH (the “Charging Right of Use”); and (ii) bill Drivers according to the terms of the Listing accepted by Drivers.
(b) Charging Right of Use. Drivers may enter into binding, revocable, temporary right of use arrangements with SWTCH, as an agent of the Subscriber, to use the Hardware. You appoint us your agent to enable provision of the Charging Right of Use and to process the Driver’s payment but acknowledge that we are not a party to the Charging Right of Use, and that it is a legal relationship between you and the Driver only. You acknowledge that SWTCH is not a landlord, real estate broker, or insurer. SWTCH has no control over the conduct of Drivers and disclaims all liability in this regard to the maximum extent permitted by law. In offering the Service to you, SWTCH acts as an agent of the Subscriber to assign Drivers the Charging Right of Use. Subscribers have sole discretion over who may use the Hardware at a Parking Spot and may instruct us to refuse to grant the Charging Right of Use to a Driver for any reason.
(c) Third-Party Services. The Service may integrate with or rely on third-party platforms and services that are not owned or controlled by SWTCH (collectively, “Third-Party Services”). You acknowledge and agree that use and enabling (as applicable) of any such Third-Party Services will be subject to any terms which govern and/or apply to such Third-Party Services. SWTCH does not endorse any such Third-Party Service and content available thereon and in no event shall SWTCH be responsible or liable for any products or services of such Third-Party Services.
3 INVOICING & PAYMENT
(a) Fees. Subscriber is required to pay fees (“Fee”) to receive access to the Service. The applicable terms governing a Subscriber’s Fees shall be set out in the Order Form or at the time of subscription (as applicable). All Fees are exclusive of any taxes, duties or levies assessed by applicable governmental authorities (“Taxes”). All Taxes (exclusive of any Taxes based upon SWTCH’s net income) shall be assumed by and paid for by Subscriber, not SWTCH, regardless of whether included in any invoice sent to Subscriber. SWTCH will provide you with at least thirty (30) days’ prior notice of any material modifications to your Subscription, including changes to Fees, before such changes take effect. All such changes will be effective thirty (30) days following the date of the notice.
(b) Invoicing. Fees are invoiced on the first day of each Subscription period’s billing cycle. Unless otherwise stated in your Order Form, the billing cycle is annual. All invoices are due within fifteen (15) days of the invoice date. Any incurred Fees not received from Subscriber by their due date may accrue (except with respect to Fees then under reasonable and good faith dispute), at our discretion, late charges at the rate of 1.5% of the outstanding balance per month (18% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
(c) Overdue Payments. If any amount owing by the Subscriber is more than thirty (30) days overdue, SWTCH may, without otherwise limiting any other rights or remedies available to SWTCH at law, terminate the Subscription and suspend the provision of the Service. Subscriber shall be liable for all costs, including reasonable legal fees incurred by SWTCH in connection with SWTCH’s efforts to collect any past due amounts.
4. SITE PREPARATION
(a) Site Preparation. Unless otherwise stated by SWTCH in writing, Subscriber shall be responsible for performing any Site Preparation that is required in the sole discretion of SWTCH pursuant to SWTCH’s Site Preparation guidelines to permit the installation of the Hardware. All Site Preparation work performed by a Partner or other third party on behalf of Subscriber shall be performed pursuant to Additional Terms or other third-party terms between such Partner or other third party and Subscriber. Subscriber shall obtain all licenses, consents, permissions and/or permits necessary to perform the Site Preparation. As of the date of installation of the Hardware, the Subscriber represents and warrants to SWTCH that the Subscriber has obtained all necessary consents, permissions, and approvals from the authority responsible for the management of the Site.
(b) SWTCH Partners. SWTCH provides a service under which SWTCH’s operations and maintenance partners (each, a “Partner”) can assist Subscriber with Site Preparation and Hardware installation. Engagement of Partners will require Subscriber to enter into Additional Terms. Unless Subscriber enters into Additional Terms to the contrary, SWTCH makes no representation or warranty of any kind, nor does SWTCH take or assume any liability in connection with the Partner’s efforts to assist with Site Preparation or Hardware installation.
5. HARDWARE INSTALLATION AND MAINTENANCE
(a) Packing and Delivery. Shipments of any Hardware ordered under an Order Form are subject to SWTCH’s availability schedule. SWTCH shall make every reasonable effort to meet any delivery date(s) quoted or acknowledged in an Order Form. However, SWTCH will not be liable for its failure to meet such date(s). All Hardware shall be packed, if appropriate, for shipment and storage in accordance with standard commercial practices. Title to purchased Hardware (other than the Cloud Service and/or firmware embodied therein) passes to Subscriber when Hardware is provided by SWTCH to the carrier shipping the Hardware. SWTCH bears all responsibility for loss of or damage to Hardware during initial shipment and until such Hardware is received by Subscriber.
(b) Installation and Maintenance. Unless Subscriber enters into Additional Terms to the contrary (such as terms governing the SWTCH care service under which Partners provide Subscriber with Hardware operation and maintenance services), Subscriber shall be solely responsible for: (i) purchasing and installing Hardware; (ii) ensuring Hardware functions in the manner required for Subscriber to receive the Service; (iii) servicing, repairing, modifying, and adjusting Hardware; and (iv) all obligation and liability with respect to the possession of the Hardware, and for its use and operation during the Term.
(c) Inspection. If Subscriber does not engage a Partner to assist with Site Preparation and Hardware installation, SWTCH may require you to pay the then-current Site Preparation service fee for SWTCH to conduct a mandatory re-dispatch fee to ensure Hardware was properly installed. Installed Hardware will need to be commissioned and activated by SWTCH for Subscriber to receive the Service and may require payment of SWTCH’s then-current fees for commissioning and/or activation, charged on a “per-station” basis.
(d) Subscriber’s Obligations. Unless otherwise stated in an Order Form or authorized by SWTCH in writing, the Subscriber agrees:
(i) that SWTCH will be the sole and exclusive provider of EV charging services to Subscriber during the Term;
(ii) that the Subscriber shall not interfere with, or cause its employees or agents to interfere with, SWTCH’s performance of its obligations and responsibilities under these Terms;
(iii) to provide SWTCH or its service partners with access, during normal business hours (9:00 a.m. to 5:00 p.m., Monday to Friday), to the Hardware to perform any required maintenance work;
(iv) that, at the Subscriber’s own expense and at all times during the Term, to keep the Parking Spaces reasonably free of debris and rubbish and in good repair and condition; and
(v) that the Hardware must be operated and maintained in accordance with any specifications communicated by SWTCH from time to time.
6. DRIVERS’ USE OF THE HARDWARE.
(a) Cloud Service. During the Term, SWTCH shall make available to the Subscriber a software offering that will permit the Subscriber to, among other things, designate which Drivers use the Hardware to charge an EV and the Driver Fees (the “Cloud Service”). The Cloud Service is an integral part of the Service and all references in these Terms to the Service shall be deemed to include the Cloud Service and Hardware.
(b) Driver Fees. The Charging Right of Use fees Drivers are charged for use of the Hardware under an accepted Listing (“Driver Fees”) shall be collected from the Driver by SWTCH and remitted to Subscriber, less any refunds contemplated herein. Subscriber acknowledges and agrees that no Driver Fees shall be paid to Subscriber unless they are first received from the Driver by SWTCH. Driver shall not have a right to set off any amount of Driver Fees owing from the Fees due to SWTCH hereunder.
(c) Cancellations and Refunds. You may cancel a Driver’s confirmed Listing. In certain circumstances, SWTCH may decide, in its sole discretion, that it is necessary or desirable to cancel a Driver’s confirmed Listing. In such cases, SWTCH will refund Driver the Driver Fees (as set out in the Driver Terms). Subscriber agrees that SWTCH and the relevant Driver will not have any liability to you for such cancellations or refunds.
(d) Charging Issues. If the Hardware provided by you to a Driver under a confirmed Listing malfunctions or if a Driver is unable to charge their EV for any reason beyond your control, SWTCH will work with the Driver to resolve the issue via SWTCH support. Drivers may request refunds for Driver Fees as a result of malfunctioning Hardware from you. As an agent for payment processing, SWTCH will only offer Drivers refunds of Driver Fees under this Section 6d if directed to do so by you.
(e) Troubleshooting and Feedback. Subscriber shall promptly share any Driver suggestions, enhancement requests, recommendations or other feedback, or any issues using the Hardware reported by Drivers to Subscriber. Subscriber acknowledges that SWTCH shall have a royalty-free, worldwide, irrevocable, perpetual, transferable, sublicensable, to use or incorporate in the Service any Driver suggestions, enhancement requests, recommendations or other Driver feedback provided to the Subscriber relating to the Service.
(f) Driver Disputes. Except as expressly set out herein, SWTCH shall not be responsible for any disputes arising between Driver and Subscriber relating to the Service, Site, Parking Spaces, or other dispute arising from the relationship, contractual or otherwise, between Driver and Subscriber, including but not limited to disputes relating to a Charging Right of Use or a Program Event. SWTCH does not endorse any Driver. We therefore recommend that you always exercise due diligence and care when deciding whether to contract or engage with a Driver. Except as expressly stated herein, SWTCH is not responsible for any damage or harm resulting from your interactions with Drivers.
7. RESPONSIBILITIES.
(a) SWTCH Responsibilities. In addition to obligations set forth in Section 5 of these Terms, SWTCH shall be responsible for:
(i) provisioning and operating, maintaining, administering and supporting the open-platform network of Hardware stations and the supporting vehicle charging application that is operated and maintained by SWTCH (the “Network”);
(ii) provisioning and operating, maintaining, administering, and supporting the applications offered on the Service;
(iii) operating the Network in compliance with all applicable laws; and
(iv) protecting the confidentiality and security of all personally identifiable information in accordance with all applicable laws and the Privacy Policy.
(b) Disclaimer. SWTCH shall not be responsible for, and makes no representation or warranty with respect to the following:
(i) continuous availability of electrical service to the Hardware;
(ii) continuous availability of any wireless or cellular communications network or Internet service or SWTCH network necessary for the continued operation by SWTCH of the Service or Network; or
(iii) availability of or interruption of the Network attributable to unauthorized intrusions.
(c) Personal Use. All use of the Service by the Subscriber shall comply with these Terms. All the Cloud Service account details and passwords are granted to Subscriber solely for Subscriber’s own use, and Subscriber shall keep all such information secure and confidential. The Subscriber shall use reasonable efforts to prevent, and shall be fully liable to SWTCH for, any unauthorized access to, use of or damage to the Network or Service arising from Subscriber’s breach of its obligations. The Subscriber shall immediately notify SWTCH upon becoming aware of any such unauthorized use.
(d) Restrictions. The Subscriber shall not:
(i) sell, resell, license, rent, lease or otherwise transfer the Service or any data collected or maintained by SWTCH in connection with the operation of SWTCH to any third party;
(ii) interfere with or disrupt the Service, the Network, servers, or networks connected to the Service, or disobey any requirements, procedures, policies, or regulations of networks connected to the Network;
(iii) attempt to gain unauthorized access to the Network or the Service or related systems or networks or any data contained therein, or access or use the Service through any technology or means other than those provided or expressly authorized by SWTCH;
(iv) reverse engineer, decompile or otherwise attempt to extract the source code of the Service, Network or any part of same, except to the extent expressly permitted or required by applicable law;
(v) create derivative works based on the Network, the Service, or any of the various SWTCH trademarks, service marks, trade names, logos, domain names, and other distinctive brand features and designations used in connection with the SWTCH (the “Marks”) and all other supplied material and/or developed by SWTCH;
(vi) remove, conceal or cover the Marks or any other markings, labels, legends, trademarks, or trade names installed or placed on the Hardware;
(vii) copy, frame or mirror any part of the Service;
(viii) access the Network or any part of the Service for any competitive purpose, or for any improper purpose whatsoever, including, without limitation, to build a competitive product or service or copy any features, functions, interface, graphics or “look and feel;”
(ix) use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Service or collect information about SWTCH users for any unauthorized purpose;
(x) upload, transmit or introduce any malicious code to SWTCH or the Service or Network;
(xi) use any of the Service if the Subscriber is a person barred from such use under the laws of USA or of any other jurisdiction;
(xii) utilize the Service for any other purpose not expressly authorized herein; or
(xiii) permit a Driver or any other third party to do any of the foregoing.
(e) Damages Excluded. SWTCH shall not have any liability whatsoever to Subscriber with respect to damages caused by:
(i) electrical outages, power surges, brown-outs, utility load management or any other similar electrical service interruptions, whatsoever the cause;
(ii) interruptions in wireless or cellular service linking the Hardware to the Network;
(iii) interruptions attributable to unauthorized Service intrusions;
(iv) interruptions in services provided by any internet service provider not affiliated with SWTCH;
(v) interruptions attributable to accidents, vandalism, damage due to unavoidable catastrophes or natural disasters, seasonal maintenance, or environmental issues (including but not limited to damage from snow removal), or other Hardware problems caused by accidents, negligence, or misuse of the Service by Subscriber or a Driver; or
(vi) Subscriber’s use of the Service in breach of these Terms or in a manner not expressly authorized by SWTCH in writing.
8. PROPRIETARY RIGHTS.
(a) Reservation of Rights. Except as expressly stated hereunder, SWTCH and its licensors shall own and hold all right, title, and interest in and to the following:
(i) the Service and Network;
(ii) the Marks;
(iii) all other SWTCH supplied material developed or provided by SWTCH for the Subscriber’s use in connection with the Service; and
(iv) all entitlements to carbon credits arising from provision of the Service under these Terms, including but not limited to: (I) carbon credits created in the voluntary carbon market; and (II) compliance credits created through the provision of the Service pursuant to the Clean Fuel Regulations (SOR/2022-140).
The Subscriber shall immediately notify SWTCH if Driver or a third party, including any legal representative or government official:
(I) uses, tampers with, or attempts to use or tamper with the Hardware;
(II) provides Subscriber with any correspondence regarding the Service, the Site, or the Parking Spaces; or
(III) claims or attempts to claim carbon credits or any other entitlements with respect to the Service in a manner that infringes on the rights of SWTCH under Section 8(a)(iv).
(b) Restrictions. Subscriber shall not (or permit Driver or a third party to):
(i) create derivative works based on any of SWTCH’s intellectual property rights, including, without limitation, the Service, Network, Marks, patents, patent applications, patent rights, trademarks, trademark applications, trade names, service marks, service mark applications, copyrights, copyright applications, franchises, licenses, inventories, know-how, trade secrets, customer lists, proprietary processes and formulae, all source and object code, algorithms, architecture, structure, display screens, layouts, inventions, URL links, websites, development tools and all documentation and media constituting, describing or relating to the above, including, without limitation, manuals, memoranda and records (collectively the “Intellectual Property”);
(ii) copy, frame or mirror any part or content of the Intellectual Property;
(iii) reverse engineer any Intellectual Property right; or
(iv) access the Intellectual Property for any improper purpose whatsoever, including, without limitation, to build a competitive product or service, or copy any features, functions, interface, graphics or “look and feel” of the Intellectual Property.
(c) Feedback. SWTCH shall have a royalty-free, worldwide, irrevocable, perpetual, transferable, sublicensable, to use or incorporate in the Service any suggestions, enhancement requests, recommendations or other feedback provided by the Subscriber relating to the Service.
(d) SWTCH Marks. Subscriber shall not use any of the Marks for or with any products, except in the manner permitted pursuant to SWTCH’s usage guidelines or as expressly authorized by SWTCH in writing. From time to time, SWTCH may provide updated Mark usage guidelines, and the Subscriber shall immediately comply with such updated guidelines. The Subscriber shall not use or display any Mark (or any likeness of a Mark):
(i) as a part of the name under which the Subscriber’s business is conducted or in connection with the name of a business of the Subscriber or its affiliates;
(ii) in any manner that implies a relationship or affiliation with SWTCH;
(iii) in any manner that implies any sponsorship or endorsement by SWTCH;
(iv) in any manner that could be reasonably interpreted to suggest that any Subscriber content and services has been authored by, or represents the views or opinions of SWTCH;
(v) in any manner intended to disparage SWTCH, the Network, or the Service, or in a manner that is misleading, defamatory, infringing, libelous, disparaging, obscene or otherwise objectionable to SWTCH;
(vi) in any manner that violates any law or regulation; or
(vii) that is distorted or altered in any way (including squeezing, stretching, inverting, discoloring, etc.) from the original form provided by SWTCH.
The Subscriber shall not, directly or indirectly, register or apply for, or cause to be registered or applied for, any Marks or any Intellectual Property substantially or confusingly similar to Intellectual Property registered by SWTCH, or that is licensed to, connected with or derived from confidential, material or proprietary information imparted to or licensed to Subscriber by SWTCH. At no time will the Subscriber challenge or assist others to challenge SWTCH Intellectual Property (except to the extent such restriction is prohibited by law) or the registration of same by SWTCH. Upon termination of these Terms, the Subscriber will immediately discontinue all use and display of all Marks.
(e) Subscriber Data License. As between SWTCH and Subscriber, Subscriber and its licensors retain all rights, title, and interest in and to all Subscriber Data. Subscriber hereby grants SWTCH a non-exclusive, non-transferable, irrevocable, worldwide, royalty-free, fully paid-up license during the Term (and for thirty (30) days thereafter) to use and otherwise exploit the Subscriber Data as reasonably required to provide and improve the Service and meet its obligations under these Terms.
(f) Usage Data. During the Term, SWTCH will develop, create, and accrue information, records, reports, specification, information and other materials or data derived from Subscriber’s use of the Service, including without limitation, data, and statistics regarding the frequency of use of the Service by Subscriber and Drivers (collectively “Usage Data”). As between Subscriber and SWTCH, all rights to and in the Usage Data is the sole property of SWTCH. For clarity, all Usage Data created in the provision of the Service, and generation of data on the electricity supplied to each Driver, shall be the sole property of SWTCH. All right, title, and interest in and to the Usage Data, including all intellectual property rights therein are and will remain with SWTCH and its licensors. SWTCH acknowledges and agrees that it has no right, license, or authorization with respect to any of the Usage Data (including any intellectual property rights therein) except as expressly set forth in these Terms.
(g) Charging Programs. SWTCH shall be permitted to enroll Hardware or the Network into grid service programs, including but not limited to utility demand response programs and electricity markets participation programs (the “Programs”) in accordance with the rules as set forth by the grid operators (“Operator”). Some Programs might involve Subscriber participation and SWTCH will obtain Subscriber’s prior consent prior to enrolling a Subscriber into a Program. Once enrolled in a Program, Operators may enable utility response periods during which time the Service will be available at a reduced capacity (each such period, an “Program Event”). Subscriber agrees that SWTCH is the only party allowed to enroll the Hardware or Network the Program and agrees not to contract with Operators in a way that diminishes SWTCH’s rights under these Terms.
9. CONFIDENTIAL INFORMATION.
(a) Definition of Confidential Information. “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”) in connection with the Service, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including but not limited to business and marketing plans, know-how, technology, technical and financial information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
(b) Confidentiality; Protection. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms, except with the Disclosing Party’s prior written permission. The Receiving Party agrees to protect the Confidential Information of Disclosing Party in the same manner that it protects its own Confidential Information (but in no event using less than reasonable care).
(c) Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance if the Disclosing Party wishes to contest the disclosure.
(d) Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of these Terms, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
10 TERM AND TERMINATION.
(a) Term. Unless otherwise stated in the applicable Order Form, your Subscription shall be for a term of five (5) years from the date these Terms are accepted (the “Initial Term”). Upon the expiry of the then-current Term, your Subscription shall be automatically renewed for additional one (1) year renewal terms (the “Renewal Term”, collectively with the Initial Term, the “Term”).
(b) Upgrades and Downgrades. Should a Subscriber wish to modify the Service tier, the Subscriber shall provide at least sixty (60) days’ notice prior to the expiry of the then-current Term. Any changes to the Service tier resulting in new Fees will be effective and invoiced in accordance with the subsequent Term’s Subscription billing cycle. Subscriber may be required to enter into a new Order Form reflecting the change to the Service tier.
(c) Non-Renewal. Subscriber may terminate their Subscription by providing written notice of non-renewal at least sixty (60) days prior to the end of the then-current Term.
(d) Termination for Cause. These Terms may be immediately terminated by either party if:
(i) either party is in material breach of any of its obligations under these Terms and has not cured such breach within thirty (30) days of the date of its receipt of written notice of such material breach from the non-breaching party; or
(ii) a party becomes the subject of a petition in bankruptcy or any other proceeding related to insolvency, receivership, liquidation or an assignment for the benefit of creditors.
(e) Refunds. Upon any termination of these Terms for cause by Subscriber, SWTCH shall refund a pro-rata portion of any pre-paid Fees. In case of any attempted early cancellation or termination of a Subscription by the Subscriber not otherwise permitted by these Terms, Subscriber must pay the remaining balance of any outstanding or incurred Fees (including any interest incurred per Section 3(b) above) and no refunds will be issued for pre-paid Fees. For clarity, Subscriber shall be obligated to pay Fees for the period between the end of the agreed-upon Term and the date of early cancellation or termination of a Subscription by the Subscriber not otherwise permitted by these Terms.
(f) Result of Termination. Upon termination: (i) except as expressly set forth herein, all licenses and rights granted by SWTCH to Subscriber hereunder shall terminate; (ii) within thirty (30) days of the day of termination, Subscriber shall pay to SWTCH all Fees owing up to and including the effective date of termination (including any cancellation fees for non-renewal and any accrued interest, if applicable); and (iii) SWTCH may (at its sole discretion) enter the Site for the purpose of removing any equipment owned and provided by SWTCH in connection with the Service, excluding the Hardware. Upon termination, if there are any outstanding Order Forms that extend beyond the termination date of these Terms, the Terms shall remain in effect until all Order Forms have terminated, whereupon these Terms shall terminate. If these Terms are terminated for material breach by either party, all Order Forms shall terminate at the same time as these Terms terminate. The following provisions shall survive termination: 1-4, 5c, 6, 7b-e, 8, 9, 10f, and 11-24.
11. INDEMNIFICATION
(a) Indemnity by Subscriber. Subscriber shall indemnify, defend, and hold SWTCH and its affiliates, and any of their respective present and former directors, officers, members, shareholders, employees, representatives and agents (“SWTCH Indemnitees”), and all of its and their successors and assigns, harmless from and against any and all Damages from third-party Claims which arise out of or relate to:
(i) Subscriber’s negligent acts or omissions, recklessness or willful misconduct;
(ii) Subscribers use of the Service in a manner not authorized by SWTCH that results in the infringement of any third-party rights, including without limitation, infringement of any intellectual property rights or other third party right;
(iii) Subscriber’s unauthorized alterations to the Service, Network, Site or Parking Spaces that affect the ability of SWTCH to meet its contractual obligations;
(iv) Subscriber’s failure to obtain necessary permissions or consents from Site owners, Drivers (as applicable) or any other third party which are required for SWTCH to meet its obligations under these Terms;
(v) Subscriber’s failure to comply with any of its obligations under these Terms or Additional Terms it is subject to;
(vi) Subscriber Data or Usage Data;
(vii) Programs or Program Events; and
(viii) the loss of life or any injury to persons or property due to conditions existing at the Site unless any such Damages arise out of or relate to SWTCH’s negligence or willful misconduct (each a “Subscriber Claim”)
SWTCH will (I) promptly gives written notice of each Subscriber Claim to Subscriber; (II) give Subscriber sole control of the defense and settlement of each Subscriber Claim (provided that Subscriber may not settle or defend any Subscriber Claim unless it unconditionally releases SWTCH of all liability); and (III) provide to Subscriber, at Subscriber 's cost, all reasonable assistance in respect to each Subscriber Claim. For the purpose of this Section 11(a), SWTCH is acting as agent and trustee of SWTCH Indemnitees.
(b) SWTCH Indemnity. SWTCH shall indemnify, defend, and hold the Subscriber harmless from and against any and all Damages awarded to a third party that arise from third-party Claims made or brought against Subscriber alleging the Service misappropriates or infringes any intellectual property rights of a third party (each an “IP Claim”), subject to the condition that Subscriber (i) promptly gives written notice of each IP Claim to SWTCH; (ii) gives SWTCH sole control of the defense and settlement of all IP Claims (provided that SWTCH may not settle or defend any IP Claim unless it unconditionally releases Subscriber of all liability); and (iii) provides to SWTCH, at SWTCH’s cost, all reasonable assistance in respect to each IP Claim.
(c) Mitigation. If: (i) SWTCH becomes aware of an actual or potential IP Claim; or (ii) Subscriber provides SWTCH with notice of an actual or potential IP Claim, SWTCH may (or in the case of an injunction against Subscriber, shall), at SWTCH’s sole option and determination: (I) procure for Subscriber the right to continue to use the Service; or (II) replace or modify the Service with equivalent or better functionality so that Subscriber’s use is no longer infringing; or (III) if (I) or (II) are not commercially reasonable, terminate provision of the Service and refund to Subscriber any pre-paid Fees for any periods after the termination of the Service, less any outstanding Fees owed by Subscriber to SWTCH.
(d) Exclusions. The obligations in Sections 11(b) and (c) do not extend to: (i) any IP Claim based upon infringement or alleged infringement of any intellectual property right by the combination of the Service with other products, software or services not provided by SWTCH; (ii) any IP Claim related to any Subscriber Data, Usage Data, or a Third-Party Service; or (iii) any IP Claim related to any use or exercise of any other right in respect to the Service outside the scope of the rights granted under these Terms.
12. DISCLAIMER AND LIMITATIONS OF LIABILITY
(a) Exclusions of Liability. Except for either party’s indemnification obligations, Subscriber’s breach of SWTCH’s intellectual property rights, any claims for non-payment of Fees, or a party’s breach of its confidentiality obligations under these Terms, a party’s total liability to the other party for damages of any kind, whether based on breach of contract, tort (including negligence) or otherwise under these Terms will be limited to the Fees payable by Subscriber to SWTCH in the twelve (12) months immediately preceding the event giving rise to such claim.
(b) Limitation of Liability. In no event shall a party have any liability to the other party for any lost profits or for any indirect, special, incidental, or consequential damages (including, without limitation, damages for loss of business, loss of profits, business interruption, loss of data, lost savings or other similar pecuniary loss) however caused and, whether in contract, tort (including negligence) or under any other theory of liability, whether or not SWTCH has been advised of the possibility of such damages.
(c) Disclaimer. Except as expressly provided in these Terms, SWTCH makes no representations and provides no warranties or conditions of any kind, whether express, implied, statutory or otherwise, and specifically disclaims all implied representations, warranties and/or conditions, including any representations, warranties and/or conditions of merchantability, merchantable quality, durability, title, non-infringement, satisfactory quality or fitness for a particular purpose, to the maximum extent permitted by applicable law.
(d) Provision of Service. Subscriber acknowledges that, while the Service may interface with Third-Party Services, no representation or warranty is given by SWTCH in respect of any Third-Party Services. The Service is provided "as is" with no warranties whatsoever; SWTCH does not make any expressed, implied, or statutory warranties, claims or representations with respect to the Service, including, without limitation, warranties or conditions of quality, performance, integrity of data, non-infringement, merchantability, or fitness for use for a particular purpose. SWTCH further does not represent or warrant that the Service or Network will always be available, accessible, uninterrupted, timely, secure, accurate, complete and error-free or will operate without packet loss, nor does SWTCH warrant any connection to or transmission from the internet.
13. INJUNCTIVE RELIEF
The parties recognize that the obligations under these Terms are special, unique and of extraordinary character. The parties acknowledge the difficulty in forecasting damages arising from the breach of any of the obligations or restrictive covenants and that the non-breaching party may be irreparably harmed by the breaching party’s conduct. Therefore, the parties agree that the non-breaching party shall be entitled to elect to enforce each of the obligations and restrictive covenants by means of injunctive relief or an order of specific performance and that such remedy shall be available in addition to all other remedies available at law or in equity, including the recovery of damages from the non-breaching party’s agents or affiliates involved in such breach. In such action, the non-breaching party shall not be required to plead or prove irreparable harm or lack of an adequate remedy at law or post a bond or any security.
14. REPRESENTATIONS AND WARRANTIES.
(a) Mutual Warranties. Each party represents and warrants to the other party that it has the appropriate legal authority to enter into these Terms and that it has all requisite licenses and permits to perform its obligations hereunder and has the rights to grant the licenses contemplated hereunder.
(b) Subscriber Warranty. Subscriber represents and warrants to SWTCH that it has the appropriate legal authority to execute and be bound by the Terms, it has the full power and authority to permit SWTCH to install Hardware at the Site, that it has all requisite licenses and permits to perform pursuant to the Terms, the electrical usage consumed by the Hardware will not violate or otherwise conflict with the terms and conditions of any other agreement, that it is not bound by any other agreement which precludes it from complying with these Terms, and that it will perform its obligations under the Terms in compliance with any applicable laws, rules, regulations or ordinances.
15. HEADINGS; USE OF SINGULAR.
The headings in these Terms are used for convenience only and shall not be used to define, limit, or describe the scope of these Terms or any of the obligations set out in these Terms. In these Terms, the use of the singular shall be deemed to include plural wherever the context so requires and vice versa.
16. GOVERNING LAW
These Terms shall be governed by and construed in accordance with the laws of the state of Delaware and laws of USA, as applicable. The courts located in Delaware shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to these Terms. The application of the United Nations Convention on Contracts for the International Sale of Goods to these Terms is expressly excluded.
17. DISPUTE RESOLUTION. You and SWTCH shall use all reasonable endeavors to discuss and resolve any dispute which may arise out of or in connection with these Terms or your receipt of the Service. If the dispute cannot be resolved within ten (10) business days, you and SWTCH will attempt to settle it in good faith by mediation. To initiate the mediation, a party must give notice in writing to the other party requesting a mediation. A copy of the request should be sent to ADR Chambers. The mediation will take place in Delaware and the language of the mediation will be English. The mediation shall be governed by the substantive law of the State of Delaware. If the dispute is not settled by mediation within thirty (30) days of commencement of the mediation or within such further period as the parties may agree to in writing, the dispute shall be referred to and finally resolved by binding arbitration at ADR Chambers. The arbitration shall be governed by the applicable rules of the Arbitration Act (Delaware), and arbitration proceedings shall take place in Delaware before one (1) arbitrator. In the event the parties are unable to agree as to the appointment of an arbitrator for any reason, then such arbitrator shall be selected randomly by ADR Chambers. Each party shall bear its own legal costs in connection with a mediation and/or arbitration under this provision. All information pertaining to any mediation/arbitration under this Section 17 shall constitute Confidential Information.
18. NOTICES
Any notice required to be given pursuant to these Terms shall be deemed to have been given if personally delivered, sent by an e-mail or if mailed by prepaid registered mail to SWTCH or Subscriber. Notice given by prepaid registered post shall be deemed to be given on the fifth (5th) calendar day following the posting of such notice. Notice given by email shall be deemed to have been validly and effectively given and received on the date and at the time of transmission unless the transmission is given after 5:00p.m or unless the transmission is sent on a day which is not a Business Day, in which case the transmission shall be deemed to have been received on the first (1st) Business Day following transmission. Any notice required to be provided in accordance with these Terms shall be provided to a party at the details as provided in the applicable Order Form.
19. INSURANCE
At all times during the Term, the Subscriber shall keep and maintain insurance at the level of the industry standard, or higher if required by law. Upon request by SWTCH, the Subscriber shall furnish a certificate of insurance evidencing such insurance is in full force and effect. SWTCH shall maintain commercial general liability insurance coverage liability limit of $5,000,000 for each occurrence of bodily injury, death, or property damage. The insurance required under this Section 19 shall be maintained in effect during the Term, provided that any policies written on a “claims made” basis shall be maintained for at least two (2) years following termination of these Terms, however caused.
20. RELATIONSHIP OF PARTIES
The parties are independent contractors. These Terms does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Except as expressly provided in these Terms, there are no third-party beneficiaries to these Terms.
21. FORCE MAJEURE
If either party shall be delayed or hindered in or prevented from the performance of any act required under these Terms by reason of any strike, lockout, labor trouble, inability to procure materials or energy, failure of power, hurricane, restrictive governmental laws or regulations, riot, insurrection, picketing, sit-ins, war or other unavoidable reason of a like nature not attributable to the negligence or fault of such party, then the performance of such work or action shall be excused for the period of the unavoidable delay and the period for the performance of any such work or action will be extended for an equivalent period.
22. WAIVER
No delay or omission by either party hereto to exercise any right, remedy or power occurring upon any non-compliance or default by the other party with respect to these Terms shall impair any such right or power or be construed to be a waiver thereof. These Terms may be waived only in writing and only by the party that is entitled to the benefits of the terms or conditions being waived. A waiver by either of the parties hereto of any of the covenants, conditions or agreements to be performed by the other shall not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement herein contained (whether or not the provision is similar).
23. FINAL AGREEMENT
These Terms (including any referenced agreements including but not limited to an Order Form entered into between the Parties and any applicable Additional Terms) contain the whole agreement between the parties. Each party further acknowledges that it has not relied upon any oral or written representations made to it by the other or its employees or agents and has made its own independent investigations into all matters relevant to it. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be fully enforced.
24. ASSIGNMENT
Subscriber may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of SWTCH (not to be unreasonably withheld); provided, however, that Subscriber may assign these Terms in their entirety (including all Order Forms) if title is transferred pursuant to a sale of Subscriber’s real property which grants Subscriber the right to provide use of the Hardware to Drivers by virtue of owning that real property. To give effect to such assignment, Subscriber and assignee shall execute a novation agreement substantially in the form provided by SWTCH. SWTCH may assign these Terms in their entirety (including all Order Forms), without consent of Subscriber, to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all its business, shares, or assets. Subject to the foregoing, these Terms shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
Last Updated: June 25, 2024
Version 1.3
Property Owner Terms of Service - NRCan
These SWTCH Energy Inc. (“SWTCH”, “us”, “we”, “our”) Network Service Terms (“Terms”) and any referenced agreements, including but not limited to an Order Form entered into between the parties and any applicable SWTCH policies, govern your subscription (“Subscription”) to the SWTCH electric vehicle network and charging services (“Service”). By accepting these Terms, either by clicking a box indicating acceptance or executing an Order Form that references these Terms, the property owner subscribing to the Service (“Subscriber”, “you”, “your”) agrees to and accepts these Terms. If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, "you" and "your" will refer and apply to that company or other legal entity.
Your use of SWTCH’s other products or services (including, without limitation, terms governing SWTCH’s charging as a service offering or SWTCH care) may be subject to additional terms, which will be made available to you at the time of access, subscription or purchase of the applicable product or service (collectively with Driver Terms, “Additional Terms”). Use of the Service’s charging capabilities as an EV driver requires users to enter into the SWTCH Driver Terms, available at: https://charge.swtchenergy.com/en/infos/terms (“Driver Terms”). If you are a property owner who wishes to use Hardware to charge your EV, you acknowledge and agree that your use of the Service as a Driver will be subject to the Driver Terms.
These Terms were last updated on June 25, 2024, and are effective between SWTCH and Subscriber as of the date of your acceptance of these Terms. SWTCH will notify you of any material changes to these Terms. Any such revisions shall become effective thirty (30) days following the date of the notice and your acceptance of the revised Terms or decision to continue using the Service thereafter (as applicable) shall constitute acceptance of the revised Terms. SWTCH may require you to provide consent to the updated Terms before continuing to use the Service.
1. DEFINITIONS. In these Terms, these capitalized terms shall have the following meanings:
(i) "Business Day" shall mean any day that is not a Saturday, Sunday or "holiday" as such term is defined in the Province of Ontario.
(ii) “Claims” shall mean all claims, requests, accusations, allegations, assertions, complaints, petitions, demands, suits, actions, proceedings, and causes of action of any kind and description.
(iii) “Damages” shall mean any fee, cost, expense, expenditure, or other awards of any nature, including, but not limited to attorneys’ fees, witness fees, expert witness fees and expenses, and all other litigation costs and expenses.
(iv) “Driver” shall mean an eligible user wishing to charge EVs to whom the Service is made available by Subscriber. For clarity, a Subscriber may use the Service as a Driver in accordance with the Driver Terms.
(v) “Hardware” means the electric vehicle (“EV”) charging equipment and any supporting hardware provided by SWTCH that is required for a Driver to use the Hardware.
(vi) “Listing” means a description and additional information about the Charging Right of Use made available via the Service by Subscriber.
(vii) “Order Form” means a written document in the form provided by SWTCH which is executed by the parties and specifies the Term, Fees, renewal rate, and any other additional commercial terms agreed by the parties.
(viii) “Parking Spaces” means a parking space in a designated parking location (“Site”) where Drivers may access the Hardware.
(ix) “Privacy Policy” means the SWTCH privacy policy governing the maintenance and use of personally identifiable information, the latest version of which can be found: https://charge.swtchenergy.com/en/infos/privacy
(x) "Reporting Fee" means the fee to be paid by the Subscriber to the Provider for fulfilling the Reporting Requirements in the event this agreement is terminated prior to the ten (10) requirement as set by the Natural Resources Canada Zero Emissions Vehicle Infrastructure Program;
(xi) “Reporting Requirements” shall mean the charging data including the rate structure, number of connectors, equipment brand and model, connector type, total number of sessions, total connection time, total kWh, average number of sessions per charger and average connection time required annually by the Natural Resources Canada Zero Emissions Vehicle Infrastructure Program for a period of ten (10) years;
(xii) “Site Preparation” shall mean, without limitation and unless otherwise stated by SWTCH in writing, performing any electrical service upgrades, installing conduit runs, running wiring, installing communication equipment to ensure data connectivity and any other Site work necessary to enable Hardware and provide adequate power and connectivity to the Parking Spaces according to the SWTCH site design guide.
(xiii) “Subscriber Data” shall mean all electronic data or information submitted by Subscriber via the Service, including any personal information.
2. GENERAL
(a) About the Service. SWTCH provides an application and website as well as associated software, hardware, and support that enable Subscribers to: (i) assign Drivers rights of use arrangements to permit Drivers to charge their EVs using Hardware provided by Subscriber via SWTCH (the “Charging Right of Use”); and (ii) bill Drivers according to the terms of the Listing accepted by Drivers.
(b) Charging Right of Use. Drivers may enter into binding, revocable, temporary right of use arrangements with SWTCH, as an agent of the Subscriber, to use the Hardware. You appoint us your agent to enable provision of the Charging Right of Use and to process the Driver’s payment but acknowledge that we are not a party to the Charging Right of Use, and that it is a legal relationship between you and the Driver only. You acknowledge that SWTCH is not a landlord, real estate broker, or insurer. SWTCH has no control over the conduct of Drivers and disclaims all liability in this regard to the maximum extent permitted by law. In offering the Service to you, SWTCH acts as an agent of the Subscriber to assign Drivers the Charging Right of Use. Subscribers have sole discretion over who may use the Hardware at a Parking Spot and may instruct us to refuse to grant the Charging Right of Use to a Driver for any reason.
(c) Third-Party Services. The Service may integrate with or rely on third-party platforms and services that are not owned or controlled by SWTCH (collectively, “Third-Party Services”). You acknowledge and agree that use and enabling (as applicable) of any such Third-Party Services will be subject to any terms which govern and/or apply to such Third-Party Services. SWTCH does not endorse any such Third-Party Service and content available thereon and in no event shall SWTCH be responsible or liable for any products or services of such Third-Party Services.
3 INVOICING & PAYMENT
(a) Fees. Subscriber is required to pay fees (“Fee”) to receive access to the Service. The applicable terms governing a Subscriber’s Fees shall be set out in the Order Form or at the time of subscription (as applicable). All Fees are exclusive of any taxes, duties or levies assessed by applicable governmental authorities (“Taxes”). All Taxes (exclusive of any Taxes based upon SWTCH’s net income) shall be assumed by and paid for by Subscriber, not SWTCH, regardless of whether included in any invoice sent to Subscriber. SWTCH will provide you with at least thirty (30) days’ prior notice of any material modifications to your Subscription, including changes to Fees, before such changes take effect. All such changes will be effective thirty (30) days following the date of the notice.
(b) Invoicing. Fees are invoiced on the first day of each Subscription period’s billing cycle. Unless otherwise stated in your Order Form, the billing cycle is annual. All invoices are due within fifteen (15) days of the invoice date. Any incurred Fees not received from Subscriber by their due date may accrue (except with respect to Fees then under reasonable and good faith dispute), at our discretion, late charges at the rate of 1.5% of the outstanding balance per month (18% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
(c) Overdue Payments. If any amount owing by the Subscriber is more than thirty (30) days overdue, SWTCH may, without otherwise limiting any other rights or remedies available to SWTCH at law, terminate the Subscription and suspend the provision of the Service. Subscriber shall be liable for all costs, including reasonable legal fees incurred by SWTCH in connection with SWTCH’s efforts to collect any past due amounts.
4. SITE PREPARATION
(a) Site Preparation. Unless otherwise stated by SWTCH in writing, Subscriber shall be responsible for performing any Site Preparation that is required in the sole discretion of SWTCH pursuant to SWTCH’s Site Preparation guidelines to permit the installation of the Hardware. All Site Preparation work performed by a Partner or other third party on behalf of Subscriber shall be performed pursuant to Additional Terms or other third-party terms between such Partner or other third party and Subscriber. Subscriber shall obtain all licenses, consents, permissions and/or permits necessary to perform the Site Preparation. As of the date of installation of the Hardware, the Subscriber represents and warrants to SWTCH that the Subscriber has obtained all necessary consents, permissions, and approvals from the authority responsible for the management of the Site.
(b) SWTCH Partners. SWTCH provides a service under which SWTCH’s operations and maintenance partners (each, a “Partner”) can assist Subscriber with Site Preparation and Hardware installation. Engagement of Partners will require Subscriber to enter into Additional Terms. Unless Subscriber enters into Additional Terms to the contrary, SWTCH makes no representation or warranty of any kind, nor does SWTCH take or assume any liability in connection with the Partner’s efforts to assist with Site Preparation or Hardware installation.
5. HARDWARE INSTALLATION AND MAINTENANCE
(a) Packing and Delivery. Shipments of any Hardware ordered under an Order Form are subject to SWTCH’s availability schedule. SWTCH shall make every reasonable effort to meet any delivery date(s) quoted or acknowledged in an Order Form. However, SWTCH will not be liable for its failure to meet such date(s). All Hardware shall be packed, if appropriate, for shipment and storage in accordance with standard commercial practices. Title to purchased Hardware (other than the Cloud Service and/or firmware embodied therein) passes to Subscriber when Hardware is provided by SWTCH to the carrier shipping the Hardware. SWTCH bears all responsibility for loss of or damage to Hardware during initial shipment and until such Hardware is received by Subscriber.
(b) Installation and Maintenance. Unless Subscriber enters into Additional Terms to the contrary (such as terms governing the SWTCH care service under which Partners provide Subscriber with Hardware operation and maintenance services), Subscriber shall be solely responsible for: (i) purchasing and installing Hardware; (ii) ensuring Hardware functions in the manner required for Subscriber to receive the Service; (iii) servicing, repairing, modifying, and adjusting Hardware; and (iv) all obligation and liability with respect to the possession of the Hardware, and for its use and operation during the Term.
(c) Inspection. If Subscriber does not engage a Partner to assist with Site Preparation and Hardware installation, SWTCH may require you to pay the then-current Site Preparation service fee for SWTCH to conduct a mandatory re-dispatch fee to ensure Hardware was properly installed. Installed Hardware will need to be commissioned and activated by SWTCH for Subscriber to receive the Service and may require payment of SWTCH’s then-current fees for commissioning and/or activation, charged on a “per-station” basis.
(d) Subscriber’s Obligations. Unless otherwise stated in an Order Form or authorized by SWTCH in writing, the Subscriber agrees:
(i) that SWTCH will be the sole and exclusive provider of EV charging services to Subscriber during the Term;
(ii) that the Subscriber shall not interfere with, or cause its employees or agents to interfere with, SWTCH’s performance of its obligations and responsibilities under these Terms;
(iii) to provide SWTCH or its service partners with access, during normal business hours (9:00 a.m. to 5:00 p.m., Monday to Friday), to the Hardware to perform any required maintenance work;
(iv) that, at the Subscriber’s own expense and at all times during the Term, to keep the Parking Spaces reasonably free of debris and rubbish and in good repair and condition; and
(v) that the Hardware must be operated and maintained in accordance with any specifications communicated by SWTCH from time to time.
6. DRIVERS’ USE OF THE HARDWARE.
(a) Cloud Service. During the Term, SWTCH shall make available to the Subscriber a software offering that will permit the Subscriber to, among other things, designate which Drivers use the Hardware to charge an EV and the Driver Fees (the “Cloud Service”). The Cloud Service is an integral part of the Service and all references in these Terms to the Service shall be deemed to include the Cloud Service and Hardware.
(b) Driver Fees. The Charging Right of Use fees Drivers are charged for use of the Hardware under an accepted Listing (“Driver Fees”) shall be collected from the Driver by SWTCH and remitted to Subscriber, less any refunds contemplated herein. Subscriber acknowledges and agrees that no Driver Fees shall be paid to Subscriber unless they are first received from the Driver by SWTCH. Driver shall not have a right to set off any amount of Driver Fees owing from the Fees due to SWTCH hereunder.
(c) Cancellations and Refunds. You may cancel a Driver’s confirmed Listing. In certain circumstances, SWTCH may decide, in its sole discretion, that it is necessary or desirable to cancel a Driver’s confirmed Listing. In such cases, SWTCH will refund Driver the Driver Fees (as set out in the Driver Terms). Subscriber agrees that SWTCH and the relevant Driver will not have any liability to you for such cancellations or refunds.
(d) Charging Issues. If the Hardware provided by you to a Driver under a confirmed Listing malfunctions or if a Driver is unable to charge their EV for any reason beyond your control, SWTCH will work with the Driver to resolve the issue via SWTCH support. Drivers may request refunds for Driver Fees as a result of malfunctioning Hardware from you. As an agent for payment processing, SWTCH will only offer Drivers refunds of Driver Fees under this Section 6d if directed to do so by you.
(e) Troubleshooting and Feedback. Subscriber shall promptly share any Driver suggestions, enhancement requests, recommendations or other feedback, or any issues using the Hardware reported by Drivers to Subscriber. Subscriber acknowledges that SWTCH shall have a royalty-free, worldwide, irrevocable, perpetual, transferable, sublicensable, to use or incorporate in the Service any Driver suggestions, enhancement requests, recommendations or other Driver feedback provided to the Subscriber relating to the Service.
(f) Driver Disputes. Except as expressly set out herein, SWTCH shall not be responsible for any disputes arising between Driver and Subscriber relating to the Service, Site, Parking Spaces, or other dispute arising from the relationship, contractual or otherwise, between Driver and Subscriber, including but not limited to disputes relating to a Charging Right of Use or a Program Event. SWTCH does not endorse any Driver. We therefore recommend that you always exercise due diligence and care when deciding whether to contract or engage with a Driver. Except as expressly stated herein, SWTCH is not responsible for any damage or harm resulting from your interactions with Drivers.
7. RESPONSIBILITIES.
(a) SWTCH Responsibilities. In addition to obligations set forth in Section 5 of these Terms, SWTCH shall be responsible for:
(i) provisioning and operating, maintaining, administering and supporting the open-platform network of Hardware stations and the supporting vehicle charging application that is operated and maintained by SWTCH (the “Network”) including the Reporting Requirements;
(ii) provisioning and operating, maintaining, administering, and supporting the applications offered on the Service;
(iii) operating the Network in compliance with all applicable laws; and
(iv) protecting the confidentiality and security of all personally identifiable information in accordance with all applicable laws and the Privacy Policy.
(b) Disclaimer. SWTCH shall not be responsible for, and makes no representation or warranty with respect to the following:
(i) continuous availability of electrical service to the Hardware;
(ii) continuous availability of any wireless or cellular communications network or Internet service or SWTCH network necessary for the continued operation by SWTCH of the Service or Network; or
(iii) availability of or interruption of the Network attributable to unauthorized intrusions.
(c) Personal Use. All use of the Service by the Subscriber shall comply with these Terms. All the Cloud Service account details and passwords are granted to Subscriber solely for Subscriber’s own use, and Subscriber shall keep all such information secure and confidential. The Subscriber shall use reasonable efforts to prevent, and shall be fully liable to SWTCH for, any unauthorized access to, use of or damage to the Network or Service arising from Subscriber’s breach of its obligations. The Subscriber shall immediately notify SWTCH upon becoming aware of any such unauthorized use.
(d) Restrictions. The Subscriber shall not:
(i) sell, resell, license, rent, lease or otherwise transfer the Service or any data collected or maintained by SWTCH in connection with the operation of SWTCH to any third party;
(ii) interfere with or disrupt the Service, the Network, servers, or networks connected to the Service, or disobey any requirements, procedures, policies, or regulations of networks connected to the Network;
(iii) attempt to gain unauthorized access to the Network or the Service or related systems or networks or any data contained therein, or access or use the Service through any technology or means other than those provided or expressly authorized by SWTCH;
(iv) reverse engineer, decompile or otherwise attempt to extract the source code of the Service, Network or any part of same, except to the extent expressly permitted or required by applicable law;
(v) create derivative works based on the Network, the Service, or any of the various SWTCH trademarks, service marks, trade names, logos, domain names, and other distinctive brand features and designations used in connection with the SWTCH (the “Marks”) and all other supplied material and/or developed by SWTCH;
(vi) remove, conceal or cover the Marks or any other markings, labels, legends, trademarks, or trade names installed or placed on the Hardware;
(vii) copy, frame or mirror any part of the Service;
(viii) access the Network or any part of the Service for any competitive purpose, or for any improper purpose whatsoever, including, without limitation, to build a competitive product or service or copy any features, functions, interface, graphics or “look and feel;”
(ix) use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Service or collect information about SWTCH users for any unauthorized purpose;
(x) upload, transmit or introduce any malicious code to SWTCH or the Service or Network;
(xi) use any of the Service if the Subscriber is a person barred from such use under the laws of Canada or of any other jurisdiction;
(xii) utilize the Service for any other purpose not expressly authorized herein; or
(xiii) permit a Driver or any other third party to do any of the foregoing.
(e) Damages Excluded. SWTCH shall not have any liability whatsoever to Subscriber with respect to damages caused by:
(i) electrical outages, power surges, brown-outs, utility load management or any other similar electrical service interruptions, whatsoever the cause;
(ii) interruptions in wireless or cellular service linking the Hardware to the Network;
(iii) interruptions attributable to unauthorized Service intrusions;
(iv) interruptions in services provided by any internet service provider not affiliated with SWTCH;
(v) interruptions attributable to accidents, vandalism, damage due to unavoidable catastrophes or natural disasters, seasonal maintenance, or environmental issues (including but not limited to damage from snow removal), or other Hardware problems caused by accidents, negligence, or misuse of the Service by Subscriber or a Driver; or
(vi) Subscriber’s use of the Service in breach of these Terms or in a manner not expressly authorized by SWTCH in writing.
8. PROPRIETARY RIGHTS.
(a) Reservation of Rights. Except as expressly stated hereunder, SWTCH and its licensors shall own and hold all right, title, and interest in and to the following:
(i) the Service and Network;
(ii) the Marks;
(iii) all other SWTCH supplied material developed or provided by SWTCH for the Subscriber’s use in connection with the Service; and
(iv) all entitlements to carbon credits arising from provision of the Service under these Terms, including but not limited to: (I) carbon credits created in the voluntary carbon market; and (II) compliance credits created through the provision of the Service pursuant to the Clean Fuel Regulations (SOR/2022-140).
The Subscriber shall immediately notify SWTCH if Driver or a third party, including any legal representative or government official:
(I) uses, tampers with, or attempts to use or tamper with the Hardware;
(II) provides Subscriber with any correspondence regarding the Service, the Site, or the Parking Spaces; or
(III) claims or attempts to claim carbon credits or any other entitlements with respect to the Service in a manner that infringes on the rights of SWTCH under Section 8(a)(iv).
(b) Restrictions. Subscriber shall not (or permit Driver or a third party to):
(i) create derivative works based on any of SWTCH’s intellectual property rights, including, without limitation, the Service, Network, Marks, patents, patent applications, patent rights, trademarks, trademark applications, trade names, service marks, service mark applications, copyrights, copyright applications, franchises, licenses, inventories, know-how, trade secrets, customer lists, proprietary processes and formulae, all source and object code, algorithms, architecture, structure, display screens, layouts, inventions, URL links, websites, development tools and all documentation and media constituting, describing or relating to the above, including, without limitation, manuals, memoranda and records (collectively the “Intellectual Property”);
(ii) copy, frame or mirror any part or content of the Intellectual Property;
(iii) reverse engineer any Intellectual Property right; or
(iv) access the Intellectual Property for any improper purpose whatsoever, including, without limitation, to build a competitive product or service, or copy any features, functions, interface, graphics or “look and feel” of the Intellectual Property.
(c) Feedback. SWTCH shall have a royalty-free, worldwide, irrevocable, perpetual, transferable, sublicensable, to use or incorporate in the Service any suggestions, enhancement requests, recommendations or other feedback provided by the Subscriber relating to the Service.
(d) SWTCH Marks. Subscriber shall not use any of the Marks for or with any products, except in the manner permitted pursuant to SWTCH’s usage guidelines or as expressly authorized by SWTCH in writing. From time to time, SWTCH may provide updated Mark usage guidelines, and the Subscriber shall immediately comply with such updated guidelines. The Subscriber shall not use or display any Mark (or any likeness of a Mark):
(i) as a part of the name under which the Subscriber’s business is conducted or in connection with the name of a business of the Subscriber or its affiliates;
(ii) in any manner that implies a relationship or affiliation with SWTCH;
(iii) in any manner that implies any sponsorship or endorsement by SWTCH;
(iv) in any manner that could be reasonably interpreted to suggest that any Subscriber content and services has been authored by, or represents the views or opinions of SWTCH;
(v) in any manner intended to disparage SWTCH, the Network, or the Service, or in a manner that is misleading, defamatory, infringing, libelous, disparaging, obscene or otherwise objectionable to SWTCH;
(vi) in any manner that violates any law or regulation; or
(vii) that is distorted or altered in any way (including squeezing, stretching, inverting, discoloring, etc.) from the original form provided by SWTCH.
The Subscriber shall not, directly or indirectly, register or apply for, or cause to be registered or applied for, any Marks or any Intellectual Property substantially or confusingly similar to Intellectual Property registered by SWTCH, or that is licensed to, connected with or derived from confidential, material or proprietary information imparted to or licensed to Subscriber by SWTCH. At no time will the Subscriber challenge or assist others to challenge SWTCH Intellectual Property (except to the extent such restriction is prohibited by law) or the registration of same by SWTCH. Upon termination of these Terms, the Subscriber will immediately discontinue all use and display of all Marks.
(e) Subscriber Data License. As between SWTCH and Subscriber, Subscriber and its licensors retain all rights, title, and interest in and to all Subscriber Data. Subscriber hereby grants SWTCH a non-exclusive, non-transferable, irrevocable, worldwide, royalty-free, fully paid-up license during the Term (and for thirty (30) days thereafter) to use and otherwise exploit the Subscriber Data as reasonably required to provide and improve the Service and meet its obligations under these Terms.
(f) Usage Data. During the Term, SWTCH will develop, create, and accrue information, records, reports, specification, information and other materials or data derived from Subscriber’s use of the Service, including without limitation, data, and statistics regarding the frequency of use of the Service by Subscriber and Drivers (collectively “Usage Data”). As between Subscriber and SWTCH, all rights to and in the Usage Data is the sole property of SWTCH. For clarity, all Usage Data created in the provision of the Service, and generation of data on the electricity supplied to each Driver, shall be the sole property of SWTCH. All right, title, and interest in and to the Usage Data, including all intellectual property rights therein are and will remain with SWTCH and its licensors. SWTCH acknowledges and agrees that it has no right, license, or authorization with respect to any of the Usage Data (including any intellectual property rights therein) except as expressly set forth in these Terms.
(g) Charging Programs. SWTCH shall be permitted to enroll Hardware or the Network into grid service programs, including but not limited to utility demand response programs and electricity markets participation programs (the “Programs”) in accordance with the rules as set forth by the grid operators (“Operator”). Some Programs might involve Subscriber participation and SWTCH will obtain Subscriber’s prior consent prior to enrolling a Subscriber into a Program. Once enrolled in a Program, Operators may enable utility response periods during which time the Service will be available at a reduced capacity (each such period, an “Program Event”). Subscriber agrees that SWTCH is the only party allowed to enroll the Hardware or Network the Program and agrees not to contract with Operators in a way that diminishes SWTCH’s rights under these Terms.
9. CONFIDENTIAL INFORMATION.
(a) Definition of Confidential Information. “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”) in connection with the Service, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including but not limited to business and marketing plans, know-how, technology, technical and financial information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
(b) Confidentiality; Protection. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms, except with the Disclosing Party’s prior written permission. The Receiving Party agrees to protect the Confidential Information of Disclosing Party in the same manner that it protects its own Confidential Information (but in no event using less than reasonable care).
(c) Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance if the Disclosing Party wishes to contest the disclosure.
(d) Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of these Terms, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
10 TERM AND TERMINATION.
(a) Term. Unless otherwise stated in the applicable Order Form, your Subscription shall be for a term of five (5) years from the date these Terms are accepted (the “Initial Term”). Upon the expiry of the then-current Term, your Subscription shall be automatically renewed for additional one (1) year renewal terms (the “Renewal Term”, collectively with the Initial Term, the “Term”).
(b) Upgrades and Downgrades. Should a Subscriber wish to modify the Service tier, the Subscriber shall provide at least sixty (60) days’ notice prior to the expiry of the then-current Term. Any changes to the Service tier resulting in new Fees will be effective and invoiced in accordance with the subsequent Term’s Subscription billing cycle. Subscriber may be required to enter into a new Order Form reflecting the change to the Service tier.
(c) Non-Renewal. Subscriber may terminate their Subscription by providing written notice of non-renewal at least sixty (60) days prior to the end of the then-current Term.
(d) Termination for Cause. These Terms may be immediately terminated by either party if:
(i) either party is in material breach of any of its obligations under these Terms and has not cured such breach within thirty (30) days of the date of its receipt of written notice of such material breach from the non-breaching party; or
(ii) a party becomes the subject of a petition in bankruptcy or any other proceeding related to insolvency, receivership, liquidation or an assignment for the benefit of creditors.
(e) Refunds. Upon any termination of these Terms for cause by Subscriber, SWTCH shall refund a pro-rata portion of any pre-paid Fees. In case of any attempted early cancellation or termination of a Subscription by the Subscriber not otherwise permitted by these Terms, Subscriber must pay the remaining balance of any outstanding or incurred Fees (including any interest incurred per Section 3(b) above) and no refunds will be issued for pre-paid Fees. For clarity, Subscriber shall be obligated to pay Fees for the period between the end of the agreed-upon Term and the date of early cancellation or termination of a Subscription by the Subscriber not otherwise permitted by these Terms.
(f) Result of Termination. Upon termination: (i) except as expressly set forth herein, all licenses and rights granted by SWTCH to Subscriber hereunder shall terminate; (ii) within thirty (30) days of the day of termination, Subscriber shall pay to SWTCH all Fees owing up to and including the effective date of termination (including any cancellation fees for non-renewal and any accrued interest, if applicable); and (iii) SWTCH may (at its sole discretion) enter the Site for the purpose of removing any equipment owned and provided by SWTCH in connection with the Service, excluding the Hardware. Upon termination, if there are any outstanding Order Forms that extend beyond the termination date of these Terms, the Terms shall remain in effect until all Order Forms have terminated, whereupon these Terms shall terminate. If these Terms are terminated for material breach by either party, all Order Forms shall terminate at the same time as these Terms terminate. The following provisions shall survive termination: 1-4, 5c, 6, 7b-e, 8, 9, 10f, and 11-24.
(g) Reporting Requirements. In the event of termination of this Agreement prior to the Reporting Requirements being satisfied the Subscriber shall ensure that any new service provider provides the Provider with the Reporting Requirements on a timely basis as directed by the Provider. The Subscriber agrees to pay an annual Reporting Fee of thirty-five dollars ($35.00) CAD for each EV charger governed by the Reporting Requirements for the remaining duration of the Reporting Requirements. This provision shall survive the termination of this Agreement.
11. INDEMNIFICATION
(a) Indemnity by Subscriber. Subscriber shall indemnify, defend, and hold SWTCH and its affiliates, and any of their respective present and former directors, officers, members, shareholders, employees, representatives and agents (“SWTCH Indemnitees”), and all of its and their successors and assigns, harmless from and against any and all Damages from third-party Claims which arise out of or relate to:
(i) Subscriber’s negligent acts or omissions, recklessness or willful misconduct;
(ii) Subscribers use of the Service in a manner not authorized by SWTCH that results in the infringement of any third-party rights, including without limitation, infringement of any intellectual property rights or other third party right;
(iii) Subscriber’s unauthorized alterations to the Service, Network, Site or Parking Spaces that affect the ability of SWTCH to meet its contractual obligations;
(iv) Subscriber’s failure to obtain necessary permissions or consents from Site owners, Drivers (as applicable) or any other third party which are required for SWTCH to meet its obligations under these Terms;
(v) Subscriber’s failure to comply with any of its obligations under these Terms or Additional Terms it is subject to;
(vi) Subscriber Data or Usage Data;
(vii) Programs or Program Events; and
(viii) the loss of life or any injury to persons or property due to conditions existing at the Site unless any such Damages arise out of or relate to SWTCH’s negligence or willful misconduct (each a “Subscriber Claim”)
SWTCH will (I) promptly gives written notice of each Subscriber Claim to Subscriber; (II) give Subscriber sole control of the defense and settlement of each Subscriber Claim (provided that Subscriber may not settle or defend any Subscriber Claim unless it unconditionally releases SWTCH of all liability); and (III) provide to Subscriber, at Subscriber 's cost, all reasonable assistance in respect to each Subscriber Claim. For the purpose of this Section 11(a), SWTCH is acting as agent and trustee of SWTCH Indemnitees.
(b) SWTCH Indemnity. SWTCH shall indemnify, defend, and hold the Subscriber harmless from and against any and all Damages awarded to a third party that arise from third-party Claims made or brought against Subscriber alleging the Service misappropriates or infringes any intellectual property rights of a third party (each an “IP Claim”), subject to the condition that Subscriber (i) promptly gives written notice of each IP Claim to SWTCH; (ii) gives SWTCH sole control of the defense and settlement of all IP Claims (provided that SWTCH may not settle or defend any IP Claim unless it unconditionally releases Subscriber of all liability); and (iii) provides to SWTCH, at SWTCH’s cost, all reasonable assistance in respect to each IP Claim.
(c) Mitigation. If: (i) SWTCH becomes aware of an actual or potential IP Claim; or (ii) Subscriber provides SWTCH with notice of an actual or potential IP Claim, SWTCH may (or in the case of an injunction against Subscriber, shall), at SWTCH’s sole option and determination: (I) procure for Subscriber the right to continue to use the Service; or (II) replace or modify the Service with equivalent or better functionality so that Subscriber’s use is no longer infringing; or (III) if (I) or (II) are not commercially reasonable, terminate provision of the Service and refund to Subscriber any pre-paid Fees for any periods after the termination of the Service, less any outstanding Fees owed by Subscriber to SWTCH.
(d) Exclusions. The obligations in Sections 11(b) and (c) do not extend to: (i) any IP Claim based upon infringement or alleged infringement of any intellectual property right by the combination of the Service with other products, software or services not provided by SWTCH; (ii) any IP Claim related to any Subscriber Data, Usage Data, or a Third-Party Service; or (iii) any IP Claim related to any use or exercise of any other right in respect to the Service outside the scope of the rights granted under these Terms.
12. DISCLAIMER AND LIMITATIONS OF LIABILITY
(a) Exclusions of Liability. Except for either party’s indemnification obligations, Subscriber’s breach of SWTCH’s intellectual property rights, any claims for non-payment of Fees, or a party’s breach of its confidentiality obligations under these Terms, a party’s total liability to the other party for damages of any kind, whether based on breach of contract, tort (including negligence) or otherwise under these Terms will be limited to the Fees payable by Subscriber to SWTCH in the twelve (12) months immediately preceding the event giving rise to such claim.
(b) Limitation of Liability. In no event shall a party have any liability to the other party for any lost profits or for any indirect, special, incidental, or consequential damages (including, without limitation, damages for loss of business, loss of profits, business interruption, loss of data, lost savings or other similar pecuniary loss) however caused and, whether in contract, tort (including negligence) or under any other theory of liability, whether or not SWTCH has been advised of the possibility of such damages.
(c) Disclaimer. Except as expressly provided in these Terms, SWTCH makes no representations and provides no warranties or conditions of any kind, whether express, implied, statutory or otherwise, and specifically disclaims all implied representations, warranties and/or conditions, including any representations, warranties and/or conditions of merchantability, merchantable quality, durability, title, non-infringement, satisfactory quality or fitness for a particular purpose, to the maximum extent permitted by applicable law.
(d) Provision of Service. Subscriber acknowledges that, while the Service may interface with Third-Party Services, no representation or warranty is given by SWTCH in respect of any Third-Party Services. The Service is provided "as is" with no warranties whatsoever; SWTCH does not make any expressed, implied, or statutory warranties, claims or representations with respect to the Service, including, without limitation, warranties or conditions of quality, performance, integrity of data, non-infringement, merchantability, or fitness for use for a particular purpose. SWTCH further does not represent or warrant that the Service or Network will always be available, accessible, uninterrupted, timely, secure, accurate, complete and error-free or will operate without packet loss, nor does SWTCH warrant any connection to or transmission from the internet.
13. INJUNCTIVE RELIEF
The parties recognize that the obligations under these Terms are special, unique and of extraordinary character. The parties acknowledge the difficulty in forecasting damages arising from the breach of any of the obligations or restrictive covenants and that the non-breaching party may be irreparably harmed by the breaching party’s conduct. Therefore, the parties agree that the non-breaching party shall be entitled to elect to enforce each of the obligations and restrictive covenants by means of injunctive relief or an order of specific performance and that such remedy shall be available in addition to all other remedies available at law or in equity, including the recovery of damages from the non-breaching party’s agents or affiliates involved in such breach. In such action, the non-breaching party shall not be required to plead or prove irreparable harm or lack of an adequate remedy at law or post a bond or any security.
14. REPRESENTATIONS AND WARRANTIES.
(a) Mutual Warranties. Each party represents and warrants to the other party that it has the appropriate legal authority to enter into these Terms and that it has all requisite licenses and permits to perform its obligations hereunder and has the rights to grant the licenses contemplated hereunder.
(b) Subscriber Warranty. Subscriber represents and warrants to SWTCH that it has the appropriate legal authority to execute and be bound by the Terms, it has the full power and authority to permit SWTCH to install Hardware at the Site, that it has all requisite licenses and permits to perform pursuant to the Terms, the electrical usage consumed by the Hardware will not violate or otherwise conflict with the terms and conditions of any other agreement, that it is not bound by any other agreement which precludes it from complying with these Terms, and that it will perform its obligations under the Terms in compliance with any applicable laws, rules, regulations or ordinances.
15. HEADINGS; USE OF SINGULAR.
The headings in these Terms are used for convenience only and shall not be used to define, limit, or describe the scope of these Terms or any of the obligations set out in these Terms. In these Terms, the use of the singular shall be deemed to include plural wherever the context so requires and vice versa.
16. GOVERNING LAW
These Terms shall be governed by and construed in accordance with the laws of the Province of Ontario and laws of Canada, as applicable. The provincial and federal courts located in Toronto, Ontario shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to these Terms. The application of the United Nations Convention on Contracts for the International Sale of Goods to these Terms is expressly excluded.
17. DISPUTE RESOLUTION. You and SWTCH shall use all reasonable endeavors to discuss and resolve any dispute which may arise out of or in connection with these Terms or your receipt of the Service. If the dispute cannot be resolved within ten (10) business days, you and SWTCH will attempt to settle it in good faith by mediation. To initiate the mediation, a party must give notice in writing to the other party requesting a mediation. A copy of the request should be sent to ADR Chambers. The mediation will take place in Toronto, Ontario and the language of the mediation will be English. The mediation shall be governed by the substantive law of the Province of Ontario. If the dispute is not settled by mediation within thirty (30) days of commencement of the mediation or within such further period as the parties may agree to in writing, the dispute shall be referred to and finally resolved by binding arbitration at ADR Chambers. The arbitration shall be governed by the applicable rules of the Arbitration Act (Ontario), and arbitration proceedings shall take place in Toronto, Ontario before one (1) arbitrator. In the event the parties are unable to agree as to the appointment of an arbitrator for any reason, then such arbitrator shall be selected randomly by ADR Chambers. Each party shall bear its own legal costs in connection with a mediation and/or arbitration under this provision. All information pertaining to any mediation/arbitration under this Section 17 shall constitute Confidential Information.
18. NOTICES
Any notice required to be given pursuant to these Terms shall be deemed to have been given if personally delivered, sent by an e-mail or if mailed by prepaid registered mail to SWTCH or Subscriber. Notice given by prepaid registered post shall be deemed to be given on the fifth (5th) calendar day following the posting of such notice. Notice given by email shall be deemed to have been validly and effectively given and received on the date and at the time of transmission unless the transmission is given after 5:00p.m or unless the transmission is sent on a day which is not a Business Day, in which case the transmission shall be deemed to have been received on the first (1st) Business Day following transmission. Any notice required to be provided in accordance with these Terms shall be provided to a party at the details as provided in the applicable Order Form.
19. INSURANCE
At all times during the Term, the Subscriber shall keep and maintain insurance at the level of the industry standard, or higher if required by law. Upon request by SWTCH, the Subscriber shall furnish a certificate of insurance evidencing such insurance is in full force and effect. SWTCH shall maintain commercial general liability insurance coverage liability limit of $5,000,000 for each occurrence of bodily injury, death, or property damage. The insurance required under this Section 19 shall be maintained in effect during the Term, provided that any policies written on a “claims made” basis shall be maintained for at least two (2) years following termination of these Terms, however caused.
20. RELATIONSHIP OF PARTIES
The parties are independent contractors. These Terms does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Except as expressly provided in these Terms, there are no third-party beneficiaries to these Terms.
21. FORCE MAJEURE
If either party shall be delayed or hindered in or prevented from the performance of any act required under these Terms by reason of any strike, lockout, labor trouble, inability to procure materials or energy, failure of power, hurricane, restrictive governmental laws or regulations, riot, insurrection, picketing, sit-ins, war or other unavoidable reason of a like nature not attributable to the negligence or fault of such party, then the performance of such work or action shall be excused for the period of the unavoidable delay and the period for the performance of any such work or action will be extended for an equivalent period.
22. WAIVER
No delay or omission by either party hereto to exercise any right, remedy or power occurring upon any non-compliance or default by the other party with respect to these Terms shall impair any such right or power or be construed to be a waiver thereof. These Terms may be waived only in writing and only by the party that is entitled to the benefits of the terms or conditions being waived. A waiver by either of the parties hereto of any of the covenants, conditions or agreements to be performed by the other shall not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement herein contained (whether or not the provision is similar).
23. FINAL AGREEMENT
These Terms (including any referenced agreements including but not limited to an Order Form entered into between the Parties and any applicable Additional Terms) contain the whole agreement between the parties. Each party further acknowledges that it has not relied upon any oral or written representations made to it by the other or its employees or agents and has made its own independent investigations into all matters relevant to it. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be fully enforced.
24. ASSIGNMENT
Subscriber may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of SWTCH (not to be unreasonably withheld); provided, however, that Subscriber may assign these Terms in their entirety (including all Order Forms) if title is transferred pursuant to a sale of Subscriber’s real property which grants Subscriber the right to provide use of the Hardware to Drivers by virtue of owning that real property. To give effect to such assignment, Subscriber and assignee shall execute a novation agreement substantially in the form provided by SWTCH. SWTCH may assign these Terms in their entirety (including all Order Forms), without consent of Subscriber, to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all its business, shares, or assets. Subject to the foregoing, these Terms shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
Last Updated: June 25, 2024
Version 1.3
Property Owner Terms of Service - Care
SWTCH Energy Inc. (“SWTCH”, “us”, “we”, “our”) offers the SWTCH maintenance and support program designed for electric vehicle charging stations purchased by a SWTCH customer from SWTCH (“Care”) under which SWTCH’s service partners provide parts, labour, and other services set out herein. In addition to these Care terms and conditions (“Care Terms”), use of Care is governed by SWTCH’s Property Owner Network Service Terms (“Network Service Terms”) available at https://charge.swtchenergy.com/en/infos/property_terms.
By accepting these Care Terms, either by clicking a box indicating acceptance or executing an Order Form that references these Care Terms, the property owner subscribing to Care (“Subscriber”, “you”, “your”) agrees to and accepts these Care Terms. If you accept or agree to these Care Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Care Terms and, in such event, "you" and "your" will refer and apply to that company or other legal entity.
These Care Terms were last updated on June 25, 2024, and are effective between SWTCH and Subscriber as of the date of your acceptance of this Agreement. SWTCH reserves the right to modify or stop offering Care or change Care benefits or Care Fees at any time and in its sole discretion. SWTCH will notify you of any material changes to these Care Terms. Any such revisions shall become effective thirty (30) days following the date of the notice and your acceptance of the revised Care Terms or decision to continue receiving Care thereafter (as applicable) shall constitute acceptance of the revised Care Terms. SWTCH may require you to provide consent to the updated Care Terms before continuing to receive Care.
1. APPLICATION OF CARE TERMS. Any capitalized terms that are used in these Care Terms, but not defined, shall have the same meaning as set out in the Network Service Terms. To the extent of any inconsistency between these Care Terms and the Network Service Terms, these Care Terms shall govern solely to the extent of the inconsistency. These Care Terms shall form a part of the Network Service Terms once accepted by Subscriber and the restrictions and obligations applicable to the Service (including without limitation, Sections 7d, 7e, 8, 9, 11, and 13-24) shall apply to Subscriber’s receipt of Care for the duration of the Care Term. Upon termination of the Network Service Terms, these Care Terms shall also terminate.
2. ELIGIBILITY. Care is offered to Subscribers who: (i) accept the Network Service Terms; (ii) that either engage a Partner for Site Preparation and installation of Hardware or successfully complete Site Preparation and install Hardware themselves; and (iii) whose Hardware installation has been commissioned by SWTCH. The Subscriber may subscribe to Care within a ninety (90) day period beginning on the day Hardware is commissioned by SWTCH. Commissioning shall require the payment of SWTCH’s then current fee, charged on a “per-station” basis.
3. WHAT IS COVERED. As part of Care, SWTCH commits to doing each of the following:
a. Hardware Parts:
i. Provide all Hardware parts needed to correct any defect in the materials and ensure that Hardware functions in line with published specifications. For clarity, Hardware parts and corrections to be provided under Care are limited to the Hardware and do not cover other electrical infrastructure.
ii. If the Hardware is discontinued by the manufacturer and parts are no longer readily available, we will notify you and provide recommended next steps. In this case, SWTCH may not be able to restore the Hardware to the published specifications.
b. Service and Labor:
iii. Ensure that you are provided a response no later than one (1) business day from the date SWTCH becomes aware of an issue.
iv. Make sure any onsite repairs for your Hardware start as soon as the necessary parts are delivered, within three (3) business days.
v. Provide a standard monthly summary and quarterly usage and performance metrics regarding the Hardware.
vi. Except as otherwise provided, ensure that all labor is performed, on-site, if necessary, to correct any defect in the materials or workmanship of the Hardware.
vii. Ensure that labor is performed for repairs caused by accidents that affect Hardware functionality. For avoidance of doubt, only labor, not parts, is covered for repairs required to enable Hardware to function.
viii. Ensure proactive remote monitoring of your Hardware and alert you in case of malfunction.
ix. Coordinate any repairs required to get your Hardware operating again.
4. WHAT IS NOT COVERED. The following is not covered through Care:
a. Repairing, replacing, overseeing, or maintaining anything other than Hardware. This means, for example, that SWTCH is not responsible for the physical mounting and electrical wiring of your Hardware or for the performance of any cellular or Wi-Fi repeaters or other devices installed in connection with your Hardware. Additionally, Care is not available for testing Hardware on non-commercially available vehicles.
b. Normal cosmetic wear and tear that does not affect the operation of the Hardware.
c. Defects or service repairs due to:
i. Environmental issues such as snow removal.
ii. Use of the Hardware with software, interfacing, parts or supplies not supplied by SWTCH.
iii. Vehicle to Hardware interoperability or communication issues.
iv. Damage due to unavoidable catastrophes and natural disasters.
v. Damage due to abuse, vandalism, or negligence (including but not limited to physical damage from being struck by a vehicle), or use of the Hardware in a way other than as specified in the applicable SWTCH documentation.
vi. Installation, alteration, modification, or relocation of the Hardware that was not approved in writing by SWTCH, performed by a Partner or validated in the manner described in these Care Terms.
5. CUSTOMER RESPONSIBILITIES. To maintain eligibility for Care coverage, Subscriber agrees to:
a. Maintain cleanliness, safety, and order in the Site and Parking Spaces.
b. Promptly report suspected defects to SWTCH.
c. Provide reasonable access to SWTCH for service and maintenance.
d. Allow remote access to Hardware via the Cloud Service and cooperate with SWTCH to permit SWTCH to remotely diagnose Hardware issues and perform Hardware resets if/when necessary.
e. Comply with the Network Service Terms, any applicable Additional Terms, and all applicable laws, rules, and regulations.
6. TERM. Your Care subscription will start once you agree to and accept these Terms and will last for the subscription length selected (“Initial Care Term”). Thereafter, the Care Term shall automatically be renewed for successive one-year terms at the then-current fees (each a “Renewal Care Term” and together with Initial Care Term, “Care Term”), unless you provide a written notice of non-renewal at least thirty (30) days prior to the end of the then current Care Term. In no case will the Care Term exceed 5 calendar years.
7. TERMINATION. You may terminate your Care subscription during a Renewal Care Term at any time upon thirty (30) days prior written notice. For terminations of Care Terms during the Renewal Care Term (including due to terminations of the Property Network Terms), SWTCH will facilitate a pro-rata refund, covering any payments made from the effective date of cancellation to the conclusion of the respective Renewal Care Term. You may terminate your Care subscription during the Initial Care Term if SWTCH is in material breach of these Care Terms and has not cured such breach within thirty (30) days of the date it receives written notice of such material breach from you. For terminations of Care Terms for SWTCH’s material breach during the Initial Care Term or for Subscriber’s termination for cause of the Property Network Terms, SWTCH will facilitate a pro-rata refund, covering any payments made from the effective date of cancellation to the conclusion of the Initial Term. You may terminate your Care subscription during the Initial Term for convenience by providing SWTCH 30 days’ prior written notice. No refund of any Care Fees paid will be granted for terminations for convenience.
8. PAYMENT. SWTCH will issue you monthly or annual invoices for your Care coverage (“Care Fees”) beginning on the Initial Care Term start date. Unless otherwise stated in your Order Form, the billing cycle is annual. All invoices are due within fifteen (15) days of the invoice date. Any incurred Care Fees not received from Subscriber by their due date may accrue (except with respect to Care Fees then under reasonable and good faith dispute), at our discretion, late charges at the rate of 1.5% of the outstanding balance per month (18% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. Care Fees exclude Taxes and you are responsible for all such Taxes, except for taxes on SWTCH’s net income. Except as expressly stated herein, Care Fees are irrevocable and non-refundable. If any amount owing hereunder is more than thirty (30) days overdue, SWTCH may, without otherwise limiting any other rights or remedies available to SWTCH at law, terminate the Care Terms and suspend the provision of Care to Subscriber. The Subscriber shall be liable for all costs, including reasonable legal fees incurred by SWTCH in connection with SWTCH’s efforts to collect any past due amounts.
9. TRANSFERS. Your Care subscription applies only to the Hardware and Site for which it was purchased. If you sell or otherwise transfer your Hardware (pursuant to the Network Service Terms) with an active Care subscription to a third-party, and Hardware is moved or otherwise transferred away from the original Site, your Care subscription may not be transferred without SWTCH’s prior written consent.
10. REPLACEMENT PARTS AND HARDWARE. Replacement components or Hardware furnished by SWTCH within the scope of Care coverage may encompass remanufactured or reconditioned parts. Such replacement parts shall henceforth be vested as your property, while any components or Hardware returned, regardless of warranty status, shall become the rightful possession of SWTCH. These replacement parts shall be included under Care protection for the residual term of your Care coverage or a duration of ninety (90) days from the date of replacement part delivery, whichever proves to be longest. Except as expressly provided in these Care Terms, SWTCH makes no representations and provides no warranties or conditions of any kind, whether express, implied, statutory or otherwise, and specifically disclaims all implied representations, warranties and/or conditions, including any representations, warranties and/or conditions of merchantability, merchantable quality, durability, title, non-infringement, satisfactory quality or fitness for a particular purpose, to the maximum extent permitted by applicable law, with respect to Care.
11. LIMITS ON LIABILITY. SWTCH shall not be held accountable for any liability to Subscriber for any lost profits or for any indirect, special, incidental, or consequential damages (including, without limitation, damages for loss of business, loss of profits, business interruption, loss of data, lost savings or other similar pecuniary loss) however caused and, whether in contract, tort (including negligence) or under any other theory of liability, whether or not SWTCH has been advised of the possibility of such damages. SWTCH’s total liability to Subscriber under these Care Terms shall be limited to Care Fees payable by Subscriber to SWTCH in the twelve (12) months immediately preceding the event giving rise to such claim.
These SWTCH Energy Inc. (“SWTCH”, “us”, “we”, “our”) Charging as a Service Terms (“Terms”) and any referenced agreements, including but not limited to an Order Form entered into between the parties and any applicable SWTCH policies, govern your subscription (“Subscription”) to the SWTCH electric vehicle network and charging services (“Service”). By accepting these Terms, either by clicking a box indicating acceptance or executing an Order Form that references these Terms, the property owner subscribing to the Service (“Subscriber”, “you”, “your”) agrees to and accepts these Terms. If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, "you" and "your" will refer and apply to that company or other legal entity.
Your use of SWTCH’s other products or services (including, without limitation, terms governing purchases and ownership of Hardware or SWTCH care) may be subject to additional terms, which will be made available to you at the time of access, subscription or purchase of the applicable product or service (collectively with Driver Terms, “Additional Terms”). Use of the Service’s charging capabilities as an EV driver requires users to enter into the SWTCH Driver Terms, available at: https://charge.swtchenergy.com/en/infos/terms (“Driver Terms”). If you are a property owner who wishes to use Hardware to charge your EV, you acknowledge and agree that your use of the Service as a Driver will be subject to the Driver Terms.
These Terms were last updated on June 25, 2024, and are effective between SWTCH and Subscriber as of the date of your acceptance of these Terms. SWTCH will notify you of any material changes to these Terms. Any such revisions shall become effective thirty (30) days following the date of the notice and your acceptance of the revised Terms or decision to continue using the Service thereafter (as applicable) shall constitute acceptance of the revised Terms. SWTCH may require you to provide consent to the updated Terms before continuing to use the Service.
1. DEFINITIONS. In these Terms, these capitalized terms shall have the following meanings:
(i) "Business Day" shall mean any day that is not a Saturday, Sunday or "holiday" as such term is defined in the Province of Ontario.
(ii) “Claims” shall mean all claims, requests, accusations, allegations, assertions, complaints, petitions, demands, suits, actions, proceedings, and causes of action of any kind and description.
(iii) “Damages” shall mean any fee, cost, expense, expenditure, or other awards of any nature, including, but not limited to attorneys’ fees, witness fees, expert witness fees and expenses, and all other litigation costs and expenses.
(iv) “Driver” shall mean an eligible user wishing to charge EVs to whom the Service is made available by Subscriber. For clarity, a Subscriber may use the Service as a Driver in accordance with the Driver Terms.
(v) “Hardware” means the electric vehicle (“EV”) charging equipment and any supporting hardware provided by SWTCH that is required for a Driver to use the Hardware.
(vi) “Listing” means a description and additional information about the Charging Right of Use made available via the Service by Subscriber.
(vii) “Order Form” means a written document in the form provided by SWTCH which is executed by the parties and specifies the Term, Fees, renewal rate, and any other additional commercial terms agreed by the parties.
(viii) “Parking Spaces” means a parking space in a designated parking location (“Site”) where Drivers may access the Hardware.
(ix) “Privacy Policy” means the SWTCH privacy policy governing the maintenance and use of personally identifiable information, the latest version of which can be found: https://charge.swtchenergy.com/en/infos/privacy
(x) “Site Preparation” shall mean, without limitation and unless otherwise stated by SWTCH in writing, performing any electrical service upgrades, installing conduit runs, running wiring, installing communication equipment to ensure data connectivity and any other Site work necessary to enable Hardware and provide adequate power and connectivity to the Parking Spaces according to the SWTCH site design guide.
(xi) “Subscriber Data” shall mean all electronic data or information submitted by Subscriber via the Service, including any personal information.
2. GENERAL
(a) About the Service. SWTCH provides an application and website as well as associated software, hardware, and support that enable Subscribers to: (i) assign Drivers, rights of use arrangements to permit Drivers to charge their EVs using Hardware provided by Subscriber via SWTCH (the “Charging Right of Use”); and (ii) bill Drivers according to the terms of the Listing accepted by Drivers.
(b) Charging Right of Use. Drivers may enter into binding, revocable, temporary right of use arrangements with SWTCH, as an agent of the Subscriber, to use the Hardware. You appoint us your agent to enable provision of the Charging Right of Use and to process the Driver’s payment but acknowledge that we are not a party to the Charging Right of Use, and that it is a legal relationship between you and the Driver only. You acknowledge that SWTCH is not a landlord, real estate broker, or insurer. SWTCH has no control over the conduct of Drivers and disclaims all liability in this regard to the maximum extent permitted by law. In offering the Service to you, SWTCH acts as an agent of the Subscriber to assign Drivers the Charging Right of Use. Subscribers have sole discretion over who may use the Hardware at a Parking Spot and may instruct us to refuse to grant the Charging Right of Use to a Driver for any reason.
(c) Third-Party Services. The Service may integrate with or rely on third-party platforms and services that are not owned or controlled by SWTCH (collectively, “Third-Party Services”). You acknowledge and agree that use and enabling (as applicable) of any such Third-Party Services will be subject to any terms which govern and/or apply to such Third-Party Services. SWTCH does not endorse any such Third-Party Service and content available thereon and in no event shall SWTCH be responsible or liable for any products or services of such Third-Party Services.
3 INVOICING & PAYMENT
(a) Fees. Subscriber is required to pay fees (“Fee”) to receive access to the Service. The applicable terms governing a Subscriber’s Fees shall be set out in the Order Form or at the time of subscription (as applicable). All Fees are exclusive of any taxes, duties or levies assessed by applicable governmental authorities (“Taxes”). All Taxes (exclusive of any Taxes based upon SWTCH’s net income) shall be assumed by and paid for by Subscriber, not SWTCH, regardless of whether included in any invoice sent to Subscriber. SWTCH will provide you with at least thirty (30) days’ prior notice of any material modifications to your Subscription, including changes to Fees, before such changes take effect. All such changes will be effective thirty (30) days following the date of the notice.
(b) Invoicing. Fees are invoiced on the first day of each Subscription period’s billing cycle. Unless otherwise stated in your Order Form, the billing cycle is annual. All invoices are due within fifteen (15) days of the invoice date. Any incurred Fees not received from Subscriber by their due date may accrue (except with respect to Fees then under reasonable and good faith dispute), at our discretion, late charges at the rate of 1.5% of the outstanding balance per month (18% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
(c) Overdue Payments. If any amount owing by the Subscriber is more than thirty (30) days overdue, SWTCH may, without otherwise limiting any other rights or remedies available to SWTCH at law, terminate the Subscription and suspend the provision of the Service. Subscriber shall be liable for all costs, including reasonable legal fees incurred by SWTCH in connection with SWTCH’s efforts to collect any past due amounts.
4. SITE PREPARATION
(a) Site Preparation. Unless otherwise stated by SWTCH in writing, Subscriber shall be responsible for performing any Site Preparation that is required in the sole discretion of SWTCH pursuant to SWTCH’s Site Preparation guidelines to permit the installation of the Hardware. All Site Preparation work performed by a Partner or other third party on behalf of Subscriber shall be performed pursuant to Additional Terms or other third-party terms between such Partner or other third party and Subscriber. Subscriber shall obtain all licenses, consents, permissions and/or permits necessary to perform the Site Preparation. As of the date of installation of the Hardware, the Subscriber represents and warrants to SWTCH that the Subscriber has obtained all necessary consents, permissions, and approvals from the authority responsible for the management of the Site.
(b) SWTCH Partners. As a matter of convenience, SWTCH may offer the Subscriber contact information for certain operations and maintenance partners (each, a “Partner”), who can assist Subscriber with Site Preparation or Hardware installation if necessary. The Subscriber acknowledges that in providing such information, SWTCH makes no representation or warranty of any kind, nor does SWTCH take or assume any liability in connection with the Partner’s efforts to assist with Site Preparation or Hardware installation.
(c) Post-Preparation. After the Subscriber completes the necessary Site Preparation, the Subscriber will notify SWTCH that Hardware may be installed on the Site in accordance with the applicable Order Form. If the Subscriber does not use a Partner to complete Site Preparation and if SWTCH attempts to install Hardware but is unable to do so because the Site Preparation has not been completed in accordance with the SWTCH Site Preparation guidelines, the Subscriber agrees to pay a one-time, re-dispatch fee of $300.00 payable within thirty (30) days of receipt of the SWTCH invoice for such fee.
5. HARDWARE INSTALLATION AND MAINTENANCE
(a) Installation and Diagnostics. SWTCH shall be responsible for installing Hardware and for ensuring Hardware functions in the manner required to provide the Service. Installed Hardware will need to be commissioned and activated by SWTCH for Subscriber to receive the Service and may require payment of SWTCH’s then-current fees for commissioning and/or activation, charged on a “per-station” basis. If the Subscriber knows of or becomes aware of any malfunctioning Hardware, the Subscriber shall promptly notify SWTCH of such malfunction. SWTCH will respond to Subscriber within 1 (one) Business Day of learning of malfunctioning Hardware. The Subscriber will cooperate with SWTCH so that SWTCH may remotely diagnose an issue with the Hardware. For greater certainty, SWTCH shall only be responsible for maintaining the Hardware (including network communication equipment provided by SWTCH) and shall specifically not be responsible for maintaining any related equipment at the Site’s common elements (such as the Hardware’s electrical wiring or cellular or Wi-Fi repeaters) or any electrical wiring or other equipment provided by SWTCH in connection with Hardware installation. For clarity, SWTCH’s obligations do not include repairing, configuring, replacing, monitoring, or servicing any improvement installed by the Subscriber or Partner as part of the Site Preparation.
(b) Maintenance. SWTCH is responsible for servicing, repairing, modifying, and adjusting Hardware as more particularly described in the applicable Order Form. SWTCH’s maintenance obligations shall not include providing labour coverage for vandalism, abuse, damage due to unavoidable catastrophes or natural disasters, seasonal maintenance, or environmental issues (including but not limited to damage from snow removal), or other Hardware problems caused by accidents, negligence, or misuse by Subscriber or a Driver (including but not limited to physical damage resulting from vehicles), or Subscriber’s use of the Hardware in breach of these Terms or in a manner not expressly authorized by SWTCH in writing. Subscriber acknowledges that Hardware replacement parts installed pursuant to these Terms may be new or refurbished and equivalent to new in performance and reliability.
(c) Subscriber’s Obligations. Unless otherwise stated in an Order Form or authorized by SWTCH in writing, Subscriber will not permit anyone other than SWTCH to provide, maintain, or service the Hardware. The Subscriber shall not directly or indirectly move, service, repair, modify or adjust any part of the Hardware without written consent from SWTCH. SWTCH reserves all rights to charge the Subscriber for all costs incurred for unauthorized services, repairs, modifications, and adjustments to the Hardware caused by Subscriber, its employees, agents, or customers. The Subscriber agrees:
(i) that SWTCH will be the sole and exclusive provider of EV charging services to Subscriber during the Term;
(ii) that the Subscriber shall not interfere with, or cause its employees or agents to interfere with, SWTCH’s performance of maintenance services, or in any other way interfere with SWTCH’s responsibilities under these Terms;
(iii) to provide SWTCH or its service partners with access, during normal business hours (9:00 a.m. to 5:00 p.m., Monday to Friday), to the Hardware to perform any required maintenance work;
(iv) that, at the Subscriber’s own expense and at all times during the Term, to keep the Parking Spaces reasonably free of debris and rubbish and in good repair and condition; and
(v) that the Hardware must be operated and maintained in accordance with any specifications communicated by SWTCH from time to time
6. DRIVERS’ USE OF THE HARDWARE
(a) Cloud Service. During the Term, SWTCH shall make available to the Subscriber a software offering that will permit the Subscriber to, among other things, designate which Drivers use the Hardware to charge an EV and the Driver Fees (the “Cloud Service”). The Cloud Service is an integral part of the Service and all references in these Terms to the Service shall be deemed to include the Cloud Service and Hardware.
(b) Driver Fees. The Charging Right of Use fees Drivers are charged for use of the Hardware under an accepted Listing (“Driver Fees”) shall be collected from the Driver by SWTCH and remitted to Subscriber, less any refunds contemplated herein. Subscriber acknowledges and agrees that no Driver Fees shall be paid to Subscriber unless they are first received from the Driver by SWTCH. Driver shall not have a right to set off any amount of Driver Fees owing from the Fees due to SWTCH hereunder.
(c) Cancellations and Refunds. You may cancel a Driver’s confirmed Listing. In certain circumstances, SWTCH may decide, in its sole discretion, that it is necessary or desirable to cancel a Driver’s confirmed Listing. In such cases, SWTCH will refund Driver the Driver Fees (as set out in the Driver Terms). You agree that SWTCH and the relevant Driver will not have any liability to you for such cancellations or refunds.
(d) Charging Issues. If the Hardware provided by you to a Driver under a confirmed Listing malfunctions or if a Driver is unable to charge their EV for any reason beyond your control, SWTCH will work with the Driver to resolve the issue via SWTCH support. Drivers may request refunds for Driver Fees as a result of malfunctioning Hardware from you. As an agent for payment processing, SWTCH will only offer Drivers refunds of Driver Fees under this Section 6d if directed to do so by you.
(e) Troubleshooting and Feedback. Subscriber shall promptly share any Driver suggestions, enhancement requests, recommendations or other feedback, or any issues using the Hardware reported by Drivers to Subscriber. Subscriber acknowledges that SWTCH shall have a royalty-free, worldwide, irrevocable, perpetual, transferable, sublicensable, to use or incorporate in the Service any Driver suggestions, enhancement requests, recommendations or other Driver feedback provided to the Subscriber relating to the Service.
(f) Driver Disputes. Except as expressly set out herein, SWTCH shall not be responsible for any disputes arising between Driver and Subscriber relating to the Service, Site, Parking Spaces, or other dispute arising from the relationship, contractual or otherwise, between Driver and Subscriber, including but not limited to disputes relating to a Charging Right of Use or a Program Event. SWTCH does not endorse any Driver. We therefore recommend that you always exercise due diligence and care when deciding whether to contract or engage with a Driver. Except as expressly stated herein, SWTCH is not responsible for any damage or harm resulting from your interactions with Drivers.
7. RESPONSIBILITIES.
(a) SWTCH Responsibilities. In addition to obligations set forth in Section 5 of these Terms, SWTCH shall be responsible for:
(i) provisioning and operating, maintaining, administering and supporting the open-platform network of Hardware stations and the supporting vehicle charging application that is operated and maintained by SWTCH (the “Network”);
(ii) provisioning and operating, maintaining, administering, and supporting the applications offered on the Service;
(iii) operating the Network in compliance with all applicable laws; and
(iv) protecting the confidentiality and security of all personally identifiable information in accordance with all applicable laws and the Privacy Policy.
(b) Disclaimer. SWTCH shall not be responsible for, and makes no representation or warranty with respect to the following:
(i) continuous availability of electrical service to the Hardware;
(ii) continuous availability of any wireless or cellular communications network or Internet service or SWTCH network necessary for the continued operation by SWTCH of the Service or Network; or
(iii) availability of or interruption of the Network attributable to unauthorized intrusions.
(c) Personal Use. All use of the Service by the Subscriber shall comply with these Terms. All the Cloud Service account details and passwords are granted to Subscriber solely for Subscriber’s own use, and Subscriber shall keep all such information secure and confidential. The Subscriber shall use reasonable efforts to prevent, and shall be fully liable to SWTCH for, any unauthorized access to, use of or damage to the Network or Service arising from Subscriber’s breach of its obligations. The Subscriber shall immediately notify SWTCH upon becoming aware of any such unauthorized use.
(d) Restrictions. The Subscriber shall not:
(i) sell, resell, license, rent, lease or otherwise transfer the Service or any data collected or maintained by SWTCH in connection with the operation of SWTCH to any third party;
(ii) interfere with or disrupt the Service, the Network, servers, or networks connected to the Service, or disobey any requirements, procedures, policies, or regulations of networks connected to the Network;
(iii) attempt to gain unauthorized access to the Network or the Service or related systems or networks or any data contained therein, or access or use the Service through any technology or means other than those provided or expressly authorized by SWTCH;
(iv) reverse engineer, decompile or otherwise attempt to extract the source code of the Service, Network, or any part of same, except to the extent expressly permitted or required by applicable law;
(v) create derivative works based on the Network, the Service, or any of the various SWTCH trademarks, service marks, trade names, logos, domain names, and other distinctive brand features and designations used in connection with the SWTCH (the “Marks”) and all other supplied material and/or developed by SWTCH;
(vi) remove, conceal or cover the Marks or any other markings, labels, legends, trademarks, or trade names installed or placed on the Hardware;
(vii) copy, frame or mirror any part of the Service;
(viii) access the Network or any part of the Service for any competitive purpose, or for any improper purpose whatsoever, including, without limitation, to build a competitive product or service or copy any features, functions, interface, graphics or “look and feel;”
(ix) use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Service or collect information about SWTCH users for any unauthorized purpose;
(x) upload, transmit or introduce any malicious code to SWTCH or the Service or Network;
(xi) use any of the Service if the Subscriber is a person barred from such use under the laws of Canada or of any other jurisdiction;
(xii) utilize the Service for any other purpose not expressly authorized herein; or
(xiii) permit a Driver or any other third party to do any of the foregoing.
(e) Damages Excluded. SWTCH shall not have any liability whatsoever to Subscriber with respect to damages caused by:
(i) electrical outages, power surges, brown-outs, utility load management or any other similar electrical service interruptions, whatsoever the cause;
(ii) interruptions in wireless or cellular service linking the Hardware to the Network;
(iii) interruptions attributable to unauthorized Service intrusions;
(iv) interruptions in services provided by any internet service provider not affiliated with SWTCH;
(v) interruptions attributable to accidents, vandalism, damage due to unavoidable catastrophes or natural disasters, seasonal maintenance, or environmental issues (including but not limited to damage from snow removal), or other Hardware problems caused by accidents, negligence, or misuse of the Service by Subscriber or a Driver; or
(vi) Subscriber’s use of the Service in breach of these Terms or in a manner not expressly authorized by SWTCH in writing.
8. PROPRIETARY RIGHTS.
(a) Reservation of Rights. Except as expressly stated hereunder, SWTCH and its licensors shall own and hold all right, title, and interest in and to the following:
(i) the Service and Network;
(ii) the Marks;
(iii) all other SWTCH supplied material developed or provided by SWTCH for the Subscriber’s use in connection with the Service; and
(iv) all entitlements to carbon credits arising from provision of the Service under these Terms, including but not limited to: (I) carbon credits created in the voluntary carbon market; and (II) compliance credits created through the provision of the Service pursuant to the Clean Fuel Regulations (SOR/2022-140).
The Hardware is and shall remain the personal property of SWTCH and its licensors, regardless of the way Hardware may be attached to any other property. Subscriber acknowledges that Hardware is provided to Subscriber pursuant to a subscription service, and not a secured financing. The Subscriber shall not permit any lien to be attached to Hardware and shall immediately notify SWTCH if Driver or a third party, including any legal representative or government official:
(I) uses, tampers with, or attempts to use or tamper with the Hardware;
(II) provides Subscriber with any correspondence regarding the Service, the Site, or the Parking Spaces; or
(III) claims or attempts to claim carbon credits or any other entitlements with respect to the Service in a manner that infringes on the rights of SWTCH under Section 8(a)(iv).
(b) Restrictions. Subscriber shall not (or permit Driver or a third party to):
(i) create derivative works based on any of SWTCH’s intellectual property rights, including, without limitation, the Service, Network, Marks, patents, patent applications, patent rights, trademarks, trademark applications, trade names, service marks, service mark applications, copyrights, copyright applications, franchises, licenses, inventories, know-how, trade secrets, customer lists, proprietary processes and formulae, all source and object code, algorithms, architecture, structure, display screens, layouts, inventions, URL links, websites, development tools and all documentation and media constituting, describing or relating to the above, including, without limitation, manuals, memoranda and records (collectively the “Intellectual Property”);
(ii) copy, frame or mirror any part or content of the Intellectual Property;
(iii) reverse engineer any Intellectual Property right; or
(iv) access the Intellectual Property for any improper purpose whatsoever, including, without limitation, to build a competitive product or service, or copy any features, functions, interface, graphics or “look and feel” of the Intellectual Property.
(c) Feedback. SWTCH shall have a royalty-free, worldwide, irrevocable, perpetual, transferable, sublicensable, to use or incorporate in the Service any suggestions, enhancement requests, recommendations or other feedback provided by the Subscriber relating to the Service.
(d) SWTCH Marks. Subscriber shall not use any of the Marks for or with any products, except in the manner permitted pursuant to SWTCH’s usage guidelines or as expressly authorized by SWTCH in writing. From time to time, SWTCH may provide updated Mark usage guidelines, and the Subscriber shall immediately comply with such updated guidelines. The Subscriber shall not use or display any Mark (or any likeness of a Mark):
(i) as a part of the name under which the Subscriber’s business is conducted or in connection with the name of a business of the Subscriber or its affiliates;
(ii) in any manner that implies a relationship or affiliation with SWTCH;
(iii) in any manner that implies any sponsorship or endorsement by SWTCH;
(iv) in any manner that could be reasonably interpreted to suggest that any Subscriber content and services has been authored by, or represents the views or opinions of SWTCH;
(v) in any manner intended to disparage SWTCH, the Network or the Service, or in a manner that is misleading, defamatory, infringing, libelous, disparaging, obscene or otherwise objectionable to SWTCH;
(vi) in any manner that violates any law or regulation; or
(vii) that is distorted or altered in any way (including squeezing, stretching, inverting, discoloring, etc.) from the original form provided by SWTCH.
The Subscriber shall not, directly or indirectly, register or apply for, or cause to be registered or applied for, any Marks or any Intellectual Property substantially or confusingly similar to Intellectual Property registered by SWTCH, or that is licensed to, connected with or derived from confidential, material or proprietary information imparted to or licensed to Subscriber by SWTCH. At no time will the Subscriber challenge or assist others to challenge SWTCH Intellectual Property (except to the extent such restriction is prohibited by law) or the registration of same by SWTCH. Upon termination of these Terms, the Subscriber will immediately discontinue all use and display of all Marks.
(e) Subscriber Data License. As between SWTCH and Subscriber, Subscriber and its licensors retain all rights, title, and interest in and to all Subscriber Data. Subscriber hereby grants SWTCH a non-exclusive, non-transferable, irrevocable, worldwide, royalty-free, fully paid-up license during the Term (and for thirty (30) days thereafter) to use and otherwise exploit the Subscriber Data as reasonably required to provide and improve the Service and meet its obligations under these Terms.
(f) Usage Data. During the Term, SWTCH will develop, create, and accrue information, records, reports, specification, information and other materials or data derived from Subscriber’s use of the Service, including without limitation, data, and statistics regarding the frequency of use of the Service by Subscriber and Drivers (collectively “Usage Data”). As between Subscriber and SWTCH, all rights to and in the Usage Data is the sole property of SWTCH. For clarity, all Usage Data created in the provision of the Service, and generation of data on the electricity supplied to each Driver, shall be the sole property of SWTCH. All right, title, and interest in and to the Usage Data, including all intellectual property rights therein are and will remain with SWTCH and its licensors. SWTCH acknowledges and agrees that it has no right, license, or authorization with respect to any of the Usage Data (including any intellectual property rights therein) except as expressly set forth in these Terms.
(g) Charging Programs. SWTCH shall be permitted to enroll Hardware or the Network into grid service programs, including but not limited to utility demand response programs and electricity markets participation programs (the “Programs”) in accordance with the rules as set forth by the grid operators (“Operator”). Some Programs might involve Subscriber participation and SWTCH will obtain Subscriber’s prior consent prior to enrolling a Subscriber into a Program. Once enrolled in a Program, Operators may enable utility response periods during which time the Service will be available at a reduced capacity (each such period, an “Program Event”). Subscriber agrees that SWTCH is the only party allowed to enroll the Hardware or Network the Program and agrees not to contract with Operators in a way that diminishes SWTCH’s rights under these Terms.
9. CONFIDENTIAL INFORMATION.
(a) Definition of Confidential Information. “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”) in connection with the Service, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including but not limited to business and marketing plans, know-how, technology, technical and financial information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
(b) Confidentiality; Protection. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms, except with the Disclosing Party’s prior written permission. The Receiving Party agrees to protect the Confidential Information of Disclosing Party in the same manner that it protects its own Confidential Information (but in no event using less than reasonable care).
(c) Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance if the Disclosing Party wishes to contest the disclosure.
(d) Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of these Terms, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
10 TERM AND TERMINATION.
(a) Term. Unless otherwise stated in the applicable Order Form, your Subscription shall be for a term of five (5) years from the date these Terms are accepted (the “Initial Term”). Upon the expiry of the then-current Term, your Subscription shall be automatically renewed for additional one (1) year renewal terms (the “Renewal Term”, collectively with the Initial Term, the “Term”).
(b) Upgrades and Downgrades. Should a Subscriber wish to modify the Service tier, the Subscriber shall provide at least sixty (60) days’ notice prior to the expiry of the then-current Term. Any changes to the Service tier resulting in new Fees will be effective and invoiced in accordance with the subsequent Term’s Subscription billing cycle. Subscriber may be required to enter into a new Order Form reflecting the change to the Service tier.
(c) Non-Renewal. Subscriber may terminate their Subscription by providing written notice of non-renewal at least sixty (60) days prior to the end of the then-current Term. Subscribers will be charged a one-time cancellation fee of $250 per charging unit, due immediately upon the date of non-renewal.
(d) Termination for Cause. These Terms may be immediately terminated by either party if:
(i) either party is in material breach of any of its obligations under these Terms and has not cured such breach within thirty (30) days of the date of its receipt of written notice of such material breach from the non-breaching party; or
(ii) a party becomes the subject of a petition in bankruptcy or any other proceeding related to insolvency, receivership, liquidation or an assignment for the benefit of creditors.
(e) Refunds. Upon any termination of these Terms for cause by Subscriber, SWTCH shall refund a pro-rata portion of any pre-paid Fees. In case of any attempted early cancellation or termination of a Subscription by the Subscriber not otherwise permitted by these Terms, Subscriber must pay the remaining balance of any outstanding or incurred Fees (including any interest incurred per Section 3(b) above) and no refunds will be issued for pre-paid Fees. For clarity, Subscriber shall be obligated to pay Fees for the period between the end of the agreed-upon Term and the date of early cancellation or termination of a Subscription by the Subscriber not otherwise permitted by these Terms.
(f) Result of Termination. Upon termination: (i) except as expressly set forth herein, all licenses and rights granted by SWTCH to Subscriber hereunder shall terminate; (ii) within thirty (30) days of the day of termination, Subscriber shall pay to SWTCH all Fees owing up to and including the effective date of termination (including any cancellation fees for non-renewal and any accrued interest, if applicable). Upon termination, if there are any outstanding Order Forms that extend beyond the termination date of these Terms, the Terms shall remain in effect until all Order Forms have terminated, whereupon these Terms shall terminate. If these Terms are terminated for material breach by either party, all Order Forms shall terminate at the same time as these Terms terminate. The following provisions shall survive termination: 1-4, 5c, 6, 7b-e, 8, 9, 10f, 10g, and 11-24.
(g) Removal of Hardware. Upon termination, SWTCH may, in its own discretion, remove Hardware from the Site at no cost to Subscriber or elect to leave Hardware at the Site and transfer ownership of Hardware to the Subscriber. If SWTCH chooses to remove Hardware: (i) the Subscriber grants SWTCH the right, upon termination, to enter the Site for the purpose of removing Hardware; (ii) within thirty (30) days of termination, SWTCH and Subscriber shall engage in good faith to schedule a date upon which SWTCH shall remove Hardware at no cost to Subscriber; and (iii) the Subscriber agrees to obtain all necessary permits and consents necessary for Hardware removal and that it shall not interfere with SWTCH’s removal of the Equipment upon termination. If SWTCH decides to leave Hardware at the Site: (I) within thirty (30) days of termination, SWTCH and Subscriber shall engage in good faith discussions to transfer ownership of Hardware to the Subscriber and shall enter into a separate agreement as may be required to effect the Hardware transfer; and (II) Subscriber must obtain all necessary consents, permissions, and approvals from the authority responsible for the management of the Site to ensure Hardware can remain on the Site and transfer to Subscriber as contemplated herein.
11. INDEMNIFICATION
(a) Indemnity by Subscriber. Subscriber shall indemnify, defend, and hold SWTCH and its affiliates, and any of their respective present and former directors, officers, members, shareholders, employees, representatives and agents (“SWTCH Indemnitees”), and all of its and their successors and assigns, harmless from and against any and all Damages from third-party Claims which arise out of or relate to:
(i) Subscriber’s negligent acts or omissions, recklessness or willful misconduct;
(ii) Subscribers use of the Service in a manner not authorized by SWTCH that results in the infringement of any third-party rights, including without limitation, infringement of any intellectual property rights or other third party right;
(iii) Subscriber’s unauthorized alterations to the Service, Network, Site or Parking Spaces that affect the ability of SWTCH to meet its contractual obligations;
(iv) Subscriber’s failure to obtain necessary permissions or consents from Site owners, Drivers (as applicable) or any other third party which are required for SWTCH to meet its obligations under these Terms;
(v) Subscriber’s failure to comply with any of its obligations under these Terms or Additional Terms it is subject to;
(vi) Subscriber Data or Usage Data;
(vii) Programs or Program Events; and
(viii) the loss of life or any injury to persons or property due to conditions existing at the Site unless any such Damages arise out of or relate to SWTCH’s negligence or willful misconduct (each a “Subscriber Claim”)
SWTCH will (I) promptly give written notice of each Subscriber Claim to Subscriber; (II) give Subscriber sole control of the defense and settlement of each Subscriber Claim (provided that Subscriber may not settle or defend any Subscriber Claim unless it unconditionally releases SWTCH of all liability); and (III) provide to Subscriber, at Subscriber 's cost, all reasonable assistance in respect to each Subscriber Claim. For the purpose of this Section 11(a), SWTCH is acting as agent and trustee of SWTCH Indemnitees.
(b) SWTCH Indemnity. SWTCH shall indemnify, defend, and hold the Subscriber harmless from and against any and all Damages awarded to a third party that arise from third-party Claims made or brought against Subscriber alleging the Service misappropriates or infringes any intellectual property rights of a third party (each an “IP Claim”), subject to the condition that Subscriber (i) promptly gives written notice of each IP Claim to SWTCH; (ii) gives SWTCH sole control of the defense and settlement of all IP Claims (provided that SWTCH may not settle or defend any IP Claim unless it unconditionally releases Subscriber of all liability); and (iii) provides to SWTCH, at SWTCH’s cost, all reasonable assistance in respect to each IP Claim.
(c) Mitigation. If: (i) SWTCH becomes aware of an actual or potential IP Claim; or (ii) Subscriber provides SWTCH with notice of an actual or potential IP Claim, SWTCH may (or in the case of an injunction against Subscriber, shall), at SWTCH’s sole option and determination: (I) procure for Subscriber the right to continue to use the Service; or (II) replace or modify the Service with equivalent or better functionality so that Subscriber’s use is no longer infringing; or (III) if (I) or (II) are not commercially reasonable, terminate provision of the Service and refund to Subscriber any pre-paid Fees for any periods after the termination of the Service, less any outstanding Fees owed by Subscriber to SWTCH.
(d) Exclusions. The obligations in Sections 11(b) and (c) do not extend to: (i) any IP Claim based upon infringement or alleged infringement of any intellectual property right by the combination of the Service with other products, software or services not provided by SWTCH; (ii) any IP Claim related to any Subscriber Data, Usage Data, or a Third-Party Service; or (iii) any IP Claim related to any use or exercise of any other right in respect to the Service outside the scope of the rights granted under these Terms.
12. DISCLAIMER AND LIMITATIONS OF LIABILITY
(a) Exclusions of Liability. Except for either party’s indemnification obligations, Subscriber’s breach of SWTCH’s intellectual property rights, any claims for non-payment of Fees, or a party’s breach of its confidentiality obligations under these Terms, a party’s total liability to the other party for damages of any kind, whether based on breach of contract, tort (including negligence) or otherwise under these Terms will be limited to the Fees payable by Subscriber to SWTCH in the twelve (12) months immediately preceding the event giving rise to such claim.
(b) Limitation of Liability. In no event shall a party have any liability to the other party for any lost profits or for any indirect, special, incidental, or consequential damages (including, without limitation, damages for loss of business, loss of profits, business interruption, loss of data, lost savings or other similar pecuniary loss) however caused and, whether in contract, tort (including negligence) or under any other theory of liability, whether or not SWTCH has been advised of the possibility of such damages.
(c) Disclaimer. Except as expressly provided in these Terms, SWTCH makes no representations and provides no warranties or conditions of any kind, whether express, implied, statutory or otherwise, and specifically disclaims all implied representations, warranties and/or conditions, including any representations, warranties and/or conditions of merchantability, merchantable quality, durability, title, non-infringement, satisfactory quality or fitness for a particular purpose, to the maximum extent permitted by applicable law.
(d) Provision of Service. Subscriber acknowledges that, while the Service may interface with Third-Party Services, no representation or warranty is given by SWTCH in respect of any Third-Party Services. The Service is provided "as is" with no warranties whatsoever; SWTCH does not make any expressed, implied, or statutory warranties, claims or representations with respect to the Service, including, without limitation, warranties or conditions of quality, performance, integrity of data, non-infringement, merchantability, or fitness for use for a particular purpose. SWTCH further does not represent or warrant that the Service or Network will always be available, accessible, uninterrupted, timely, secure, accurate, complete, and error-free or will operate without packet loss, nor does SWTCH warrant any connection to or transmission from the internet.
13. INJUNCTIVE RELIEF
The parties recognize that the obligations under these Terms are special, unique and of extraordinary character. The parties acknowledge the difficulty in forecasting damages arising from the breach of any of the obligations or restrictive covenants and that the non-breaching party may be irreparably harmed by the breaching party’s conduct. Therefore, the parties agree that the non-breaching party shall be entitled to elect to enforce each of the obligations and restrictive covenants by means of injunctive relief or an order of specific performance and that such remedy shall be available in addition to all other remedies available at law or in equity, including the recovery of damages from the non-breaching party’s agents or affiliates involved in such breach. In such action, the non-breaching party shall not be required to plead or prove irreparable harm or lack of an adequate remedy at law or post a bond or any security.
14. REPRESENTATIONS AND WARRANTIES.
(a) Mutual Warranties. Each party represents and warrants to the other party that it has the appropriate legal authority to enter into these Terms and that it has all requisite licenses and permits to perform its obligations hereunder and has the rights to grant the licenses contemplated hereunder.
(b) Subscriber Warranty. Subscriber represents and warrants to SWTCH that it has the appropriate legal authority to execute and be bound by the Terms, it has the full power and authority to permit SWTCH to install Hardware at the Site, that it has all requisite licenses and permits to perform pursuant to the Terms, the electrical usage consumed by the Hardware will not violate or otherwise conflict with the terms and conditions of any other agreement, that it is not bound by any other agreement which precludes it from complying with these Terms, and that it will perform its obligations under the Terms in compliance with any applicable laws, rules, regulations or ordinances.
15. HEADINGS; USE OF SINGULAR.
The headings in these Terms are used for convenience only and shall not be used to define, limit, or describe the scope of these Terms or any of the obligations set out in these Terms. In these Terms, the use of the singular shall be deemed to include plural wherever the context so requires and vice versa.
16. GOVERNING LAW
These Terms shall be governed by and construed in accordance with the laws of the Province of Ontario and laws of Canada, as applicable. The provincial and federal courts located in Toronto, Ontario shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to these Terms. The application of the United Nations Convention on Contracts for the International Sale of Goods to these Terms is expressly excluded.
17. DISPUTE RESOLUTION. You and SWTCH shall use all reasonable endeavors to discuss and resolve any dispute which may arise out of or in connection with these Terms or your receipt of the Service. If the dispute cannot be resolved within ten (10) business days, you and SWTCH will attempt to settle it in good faith by mediation. To initiate the mediation, a party must give notice in writing to the other party requesting a mediation. A copy of the request should be sent to ADR Chambers. The mediation will take place in Toronto, Ontario and the language of the mediation will be English. The mediation shall be governed by the substantive law of the Province of Ontario. If the dispute is not settled by mediation within thirty (30) days of commencement of the mediation or within such further period as the parties may agree to in writing, the dispute shall be referred to and finally resolved by binding arbitration at ADR Chambers. The arbitration shall be governed by the applicable rules of the Arbitration Act (Ontario), and arbitration proceedings shall take place in Toronto, Ontario before one (1) arbitrator. In the event the parties are unable to agree as to the appointment of an arbitrator for any reason, then such arbitrator shall be selected randomly by ADR Chambers. Each party shall bear its own legal costs in connection with a mediation and/or arbitration under this provision. All information pertaining to any mediation/arbitration under this Section 17 shall constitute Confidential Information.
18. NOTICES
Any notice required to be given pursuant to these Terms shall be deemed to have been given if personally delivered, sent by an e-mail or if mailed by prepaid registered mail to SWTCH or Subscriber. Notice given by prepaid registered post shall be deemed to be given on the fifth (5th) calendar day following the posting of such notice. Notice given by email shall be deemed to have been validly and effectively given and received on the date and at the time of transmission unless the transmission is given after 5:00p.m or unless the transmission is sent on a day which is not a Business Day, in which case the transmission shall be deemed to have been received on the first (1st) Business Day following transmission. Any notice required to be provided in accordance with these Terms shall be provided to a party at the details as provided in the applicable Order Form.
19. INSURANCE
At all times during the Term, the Subscriber shall keep and maintain insurance at the level of the industry standard, or higher if required by law. Upon request by SWTCH, the Subscriber shall furnish a certificate of insurance evidencing such insurance is in full force and effect. SWTCH shall maintain commercial general liability insurance coverage liability limit of $5,000,000 for each occurrence of bodily injury, death, or property damage. The insurance required under this Section 19 shall be maintained in effect during the Term, provided that any policies written on a “claims made” basis shall be maintained for at least two (2) years following termination of these Terms, however caused.
20. RELATIONSHIP OF PARTIES
The parties are independent contractors. These Terms does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Except as expressly provided in these Terms, there are no third-party beneficiaries to these Terms.
21. FORCE MAJEURE
If either party shall be delayed or hindered in or prevented from the performance of any act required under these Terms by reason of any strike, lockout, labor trouble, inability to procure materials or energy, failure of power, hurricane, restrictive governmental laws or regulations, riot, insurrection, picketing, sit-ins, war or other unavoidable reason of a like nature not attributable to the negligence or fault of such party, then the performance of such work or action shall be excused for the period of the unavoidable delay and the period for the performance of any such work or action will be extended for an equivalent period.
22. WAIVER
No delay or omission by either party hereto to exercise any right, remedy or power occurring upon any non-compliance or default by the other party with respect to these Terms shall impair any such right or power or be construed to be a waiver thereof. These Terms may be waived only in writing and only by the party that is entitled to the benefits of the terms or conditions being waived. A waiver by either of the parties hereto of any of the covenants, conditions or agreements to be performed by the other shall not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement herein contained (whether or not the provision is similar).
23. FINAL AGREEMENT
These Terms (including any referenced agreements including but not limited to an Order Form entered into between the Parties and any applicable Additional Terms) contain the whole agreement between the parties. Each party further acknowledges that it has not relied upon any oral or written representations made to it by the other or its employees or agents and has made its own independent investigations into all matters relevant to it. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be fully enforced.
24. ASSIGNMENT
Subscriber may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of SWTCH (not to be unreasonably withheld); provided, however, that Subscriber may assign these Terms in their entirety (including all Order Forms) if title is transferred pursuant to a sale of Subscriber’s real property which grants Subscriber the right to provide use of the Hardware to Drivers by virtue of owning that real property. To give effect to such assignment, Subscriber and assignee shall execute a novation agreement substantially in the form provided by SWTCH. SWTCH may assign these Terms in their entirety (including all Order Forms), without consent of Subscriber, to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all its business, shares, or assets. Subject to the foregoing, these Terms shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
Last Updated: June 25, 2024
Property Owner Terms of Service - CaaS US
These SWTCH Energy Inc. (“SWTCH”, “us”, “we”, “our”) Charging as a Service Terms (“Terms”) and any referenced agreements, including but not limited to an Order Form entered into between the parties and any applicable SWTCH policies, govern your subscription (“Subscription”) to the SWTCH electric vehicle network and charging services (“Service”). By accepting these Terms, either by clicking a box indicating acceptance or executing an Order Form that references these Terms, the property owner subscribing to the Service (“Subscriber”, “you”, “your”) agrees to and accepts these Terms. If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, "you" and "your" will refer and apply to that company or other legal entity.
Your use of SWTCH’s other products or services (including, without limitation, terms governing purchases and ownership of Hardware or SWTCH care) may be subject to additional terms, which will be made available to you at the time of access, subscription or purchase of the applicable product or service (collectively with Driver Terms, “Additional Terms”). Use of the Service’s charging capabilities as an EV driver requires users to enter into the SWTCH Driver Terms, available at: https://charge.swtchenergy.com/en/infos/terms (“Driver Terms”). If you are a property owner who wishes to use Hardware to charge your EV, you acknowledge and agree that your use of the Service as a Driver will be subject to the Driver Terms.
These Terms were last updated on June 25, 2024, and are effective between SWTCH and Subscriber as of the date of your acceptance of these Terms. SWTCH will notify you of any material changes to these Terms. Any such revisions shall become effective thirty (30) days following the date of the notice and your acceptance of the revised Terms or decision to continue using the Service thereafter (as applicable) shall constitute acceptance of the revised Terms. SWTCH may require you to provide consent to the updated Terms before continuing to use the Service.
1. DEFINITIONS. In these Terms, these capitalized terms shall have the following meanings:
(i) "Business Day" shall mean any day that is not a Saturday, Sunday or "holiday" as such term is defined in the Sate of Delaware.
(ii) “Claims” shall mean all claims, requests, accusations, allegations, assertions, complaints, petitions, demands, suits, actions, proceedings, and causes of action of any kind and description.
(iii) “Damages” shall mean any fee, cost, expense, expenditure, or other awards of any nature, including, but not limited to attorneys’ fees, witness fees, expert witness fees and expenses, and all other litigation costs and expenses.
(iv) “Driver” shall mean an eligible user wishing to charge EVs to whom the Service is made available by Subscriber. For clarity, a Subscriber may use the Service as a Driver in accordance with the Driver Terms.
(v) “Hardware” means the electric vehicle (“EV”) charging equipment and any supporting hardware provided by SWTCH that is required for a Driver to use the Hardware.
(vi) “Listing” means a description and additional information about the Charging Right of Use made available via the Service by Subscriber.
(vii) “Order Form” means a written document in the form provided by SWTCH which is executed by the parties and specifies the Term, Fees, renewal rate, and any other additional commercial terms agreed by the parties.
(viii) “Parking Spaces” means a parking space in a designated parking location (“Site”) where Drivers may access the Hardware.
(ix) “Privacy Policy” means the SWTCH privacy policy governing the maintenance and use of personally identifiable information, the latest version of which can be found: https://charge.swtchenergy.com/en/infos/privacy
(x) “Site Preparation” shall mean, without limitation and unless otherwise stated by SWTCH in writing, performing any electrical service upgrades, installing conduit runs, running wiring, installing communication equipment to ensure data connectivity and any other Site work necessary to enable Hardware and provide adequate power and connectivity to the Parking Spaces according to the SWTCH site design guide.
(xi) “Subscriber Data” shall mean all electronic data or information submitted by Subscriber via the Service, including any personal information.
2. GENERAL
(a) About the Service. SWTCH provides an application and website as well as associated software, hardware, and support that enable Subscribers to: (i) assign Drivers, rights of use arrangements to permit Drivers to charge their EVs using Hardware provided by Subscriber via SWTCH (the “Charging Right of Use”); and (ii) bill Drivers according to the terms of the Listing accepted by Drivers.
(b) Charging Right of Use. Drivers may enter into binding, revocable, temporary right of use arrangements with SWTCH, as an agent of the Subscriber, to use the Hardware. You appoint us your agent to enable provision of the Charging Right of Use and to process the Driver’s payment but acknowledge that we are not a party to the Charging Right of Use, and that it is a legal relationship between you and the Driver only. You acknowledge that SWTCH is not a landlord, real estate broker, or insurer. SWTCH has no control over the conduct of Drivers and disclaims all liability in this regard to the maximum extent permitted by law. In offering the Service to you, SWTCH acts as an agent of the Subscriber to assign Drivers the Charging Right of Use. Subscribers have sole discretion over who may use the Hardware at a Parking Spot and may instruct us to refuse to grant the Charging Right of Use to a Driver for any reason.
(c) Third-Party Services. The Service may integrate with or rely on third-party platforms and services that are not owned or controlled by SWTCH (collectively, “Third-Party Services”). You acknowledge and agree that use and enabling (as applicable) of any such Third-Party Services will be subject to any terms which govern and/or apply to such Third-Party Services. SWTCH does not endorse any such Third-Party Service and content available thereon and in no event shall SWTCH be responsible or liable for any products or services of such Third-Party Services.
3 INVOICING & PAYMENT
(a) Fees. Subscriber is required to pay fees (“Fee”) to receive access to the Service. The applicable terms governing a Subscriber’s Fees shall be set out in the Order Form or at the time of subscription (as applicable). All Fees are exclusive of any taxes, duties or levies assessed by applicable governmental authorities (“Taxes”). All Taxes (exclusive of any Taxes based upon SWTCH’s net income) shall be assumed by and paid for by Subscriber, not SWTCH, regardless of whether included in any invoice sent to Subscriber. SWTCH will provide you with at least thirty (30) days’ prior notice of any material modifications to your Subscription, including changes to Fees, before such changes take effect. All such changes will be effective thirty (30) days following the date of the notice.
(b) Invoicing. Fees are invoiced on the first day of each Subscription period’s billing cycle. Unless otherwise stated in your Order Form, the billing cycle is annual. All invoices are due within fifteen (15) days of the invoice date. Any incurred Fees not received from Subscriber by their due date may accrue (except with respect to Fees then under reasonable and good faith dispute), at our discretion, late charges at the rate of 1.5% of the outstanding balance per month (18% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
(c) Overdue Payments. If any amount owing by the Subscriber is more than thirty (30) days overdue, SWTCH may, without otherwise limiting any other rights or remedies available to SWTCH at law, terminate the Subscription and suspend the provision of the Service. Subscriber shall be liable for all costs, including reasonable legal fees incurred by SWTCH in connection with SWTCH’s efforts to collect any past due amounts.
4. SITE PREPARATION
(a) Site Preparation. Unless otherwise stated by SWTCH in writing, Subscriber shall be responsible for performing any Site Preparation that is required in the sole discretion of SWTCH pursuant to SWTCH’s Site Preparation guidelines to permit the installation of the Hardware. All Site Preparation work performed by a Partner or other third party on behalf of Subscriber shall be performed pursuant to Additional Terms or other third-party terms between such Partner or other third party and Subscriber. Subscriber shall obtain all licenses, consents, permissions and/or permits necessary to perform the Site Preparation. As of the date of installation of the Hardware, the Subscriber represents and warrants to SWTCH that the Subscriber has obtained all necessary consents, permissions, and approvals from the authority responsible for the management of the Site.
(b) SWTCH Partners. As a matter of convenience, SWTCH may offer the Subscriber contact information for certain operations and maintenance partners (each, a “Partner”), who can assist Subscriber with Site Preparation or Hardware installation if necessary. The Subscriber acknowledges that in providing such information, SWTCH makes no representation or warranty of any kind, nor does SWTCH take or assume any liability in connection with the Partner’s efforts to assist with Site Preparation or Hardware installation.
(c) Post-Preparation. After the Subscriber completes the necessary Site Preparation, the Subscriber will notify SWTCH that Hardware may be installed on the Site in accordance with the applicable Order Form. If the Subscriber does not use a Partner to complete Site Preparation and if SWTCH attempts to install Hardware but is unable to do so because the Site Preparation has not been completed in accordance with the SWTCH Site Preparation guidelines, the Subscriber agrees to pay a one-time, re-dispatch fee of $300.00 payable within thirty (30) days of receipt of the SWTCH invoice for such fee.
5. HARDWARE INSTALLATION AND MAINTENANCE
(a) Installation and Diagnostics. SWTCH shall be responsible for installing Hardware and for ensuring Hardware functions in the manner required to provide the Service. Installed Hardware will need to be commissioned and activated by SWTCH for Subscriber to receive the Service and may require payment of SWTCH’s then-current fees for commissioning and/or activation, charged on a “per-station” basis. If the Subscriber knows of or becomes aware of any malfunctioning Hardware, the Subscriber shall promptly notify SWTCH of such malfunction. SWTCH will respond to Subscriber within 1 (one) Business Day of learning of malfunctioning Hardware. The Subscriber will cooperate with SWTCH so that SWTCH may remotely diagnose an issue with the Hardware. For greater certainty, SWTCH shall only be responsible for maintaining the Hardware (including network communication equipment provided by SWTCH) and shall specifically not be responsible for maintaining any related equipment at the Site’s common elements (such as the Hardware’s electrical wiring or cellular or Wi-Fi repeaters) or any electrical wiring or other equipment provided by SWTCH in connection with Hardware installation. For clarity, SWTCH’s obligations do not include repairing, configuring, replacing, monitoring, or servicing any improvement installed by the Subscriber or Partner as part of the Site Preparation.
(b) Maintenance. SWTCH is responsible for servicing, repairing, modifying, and adjusting Hardware as more particularly described in the applicable Order Form. SWTCH’s maintenance obligations shall not include providing labour coverage for vandalism, abuse, damage due to unavoidable catastrophes or natural disasters, seasonal maintenance, or environmental issues (including but not limited to damage from snow removal), or other Hardware problems caused by accidents, negligence, or misuse by Subscriber or a Driver (including but not limited to physical damage resulting from vehicles), or Subscriber’s use of the Hardware in breach of these Terms or in a manner not expressly authorized by SWTCH in writing. Subscriber acknowledges that Hardware replacement parts installed pursuant to these Terms may be new or refurbished and equivalent to new in performance and reliability.
(c) Subscriber’s Obligations. Unless otherwise stated in an Order Form or authorized by SWTCH in writing, Subscriber will not permit anyone other than SWTCH to provide, maintain, or service the Hardware. The Subscriber shall not directly or indirectly move, service, repair, modify or adjust any part of the Hardware without written consent from SWTCH. SWTCH reserves all rights to charge the Subscriber for all costs incurred for unauthorized services, repairs, modifications, and adjustments to the Hardware caused by Subscriber, its employees, agents, or customers. The Subscriber agrees:
(i) that SWTCH will be the sole and exclusive provider of EV charging services to Subscriber during the Term;
(ii) that the Subscriber shall not interfere with, or cause its employees or agents to interfere with, SWTCH’s performance of maintenance services, or in any other way interfere with SWTCH’s responsibilities under these Terms;
(iii) to provide SWTCH or its service partners with access, during normal business hours (9:00 a.m. to 5:00 p.m., Monday to Friday), to the Hardware to perform any required maintenance work;
(iv) that, at the Subscriber’s own expense and at all times during the Term, to keep the Parking Spaces reasonably free of debris and rubbish and in good repair and condition; and
(v) that the Hardware must be operated and maintained in accordance with any specifications communicated by SWTCH from time to time
6. DRIVERS’ USE OF THE HARDWARE
(a) Cloud Service. During the Term, SWTCH shall make available to the Subscriber a software offering that will permit the Subscriber to, among other things, designate which Drivers use the Hardware to charge an EV and the Driver Fees (the “Cloud Service”). The Cloud Service is an integral part of the Service and all references in these Terms to the Service shall be deemed to include the Cloud Service and Hardware.
(b) Driver Fees. The Charging Right of Use fees Drivers are charged for use of the Hardware under an accepted Listing (“Driver Fees”) shall be collected from the Driver by SWTCH and remitted to Subscriber, less any refunds contemplated herein. Subscriber acknowledges and agrees that no Driver Fees shall be paid to Subscriber unless they are first received from the Driver by SWTCH. Driver shall not have a right to set off any amount of Driver Fees owing from the Fees due to SWTCH hereunder.
(c) Cancellations and Refunds. You may cancel a Driver’s confirmed Listing. In certain circumstances, SWTCH may decide, in its sole discretion, that it is necessary or desirable to cancel a Driver’s confirmed Listing. In such cases, SWTCH will refund Driver the Driver Fees (as set out in the Driver Terms). You agree that SWTCH and the relevant Driver will not have any liability to you for such cancellations or refunds.
(d) Charging Issues. If the Hardware provided by you to a Driver under a confirmed Listing malfunctions or if a Driver is unable to charge their EV for any reason beyond your control, SWTCH will work with the Driver to resolve the issue via SWTCH support. Drivers may request refunds for Driver Fees as a result of malfunctioning Hardware from you. As an agent for payment processing, SWTCH will only offer Drivers refunds of Driver Fees under this Section 6d if directed to do so by you.
(e) Troubleshooting and Feedback. Subscriber shall promptly share any Driver suggestions, enhancement requests, recommendations or other feedback, or any issues using the Hardware reported by Drivers to Subscriber. Subscriber acknowledges that SWTCH shall have a royalty-free, worldwide, irrevocable, perpetual, transferable, sublicensable, to use or incorporate in the Service any Driver suggestions, enhancement requests, recommendations or other Driver feedback provided to the Subscriber relating to the Service.
(f) Driver Disputes. Except as expressly set out herein, SWTCH shall not be responsible for any disputes arising between Driver and Subscriber relating to the Service, Site, Parking Spaces, or other dispute arising from the relationship, contractual or otherwise, between Driver and Subscriber, including but not limited to disputes relating to a Charging Right of Use or a Program Event. SWTCH does not endorse any Driver. We therefore recommend that you always exercise due diligence and care when deciding whether to contract or engage with a Driver. Except as expressly stated herein, SWTCH is not responsible for any damage or harm resulting from your interactions with Drivers.
7. RESPONSIBILITIES.
(a) SWTCH Responsibilities. In addition to obligations set forth in Section 5 of these Terms, SWTCH shall be responsible for:
(i) provisioning and operating, maintaining, administering and supporting the open-platform network of Hardware stations and the supporting vehicle charging application that is operated and maintained by SWTCH (the “Network”);
(ii) provisioning and operating, maintaining, administering, and supporting the applications offered on the Service;
(iii) operating the Network in compliance with all applicable laws; and
(iv) protecting the confidentiality and security of all personally identifiable information in accordance with all applicable laws and the Privacy Policy.
(b) Disclaimer. SWTCH shall not be responsible for, and makes no representation or warranty with respect to the following:
(i) continuous availability of electrical service to the Hardware;
(ii) continuous availability of any wireless or cellular communications network or Internet service or SWTCH network necessary for the continued operation by SWTCH of the Service or Network; or
(iii) availability of or interruption of the Network attributable to unauthorized intrusions.
(c) Personal Use. All use of the Service by the Subscriber shall comply with these Terms. All the Cloud Service account details and passwords are granted to Subscriber solely for Subscriber’s own use, and Subscriber shall keep all such information secure and confidential. The Subscriber shall use reasonable efforts to prevent, and shall be fully liable to SWTCH for, any unauthorized access to, use of or damage to the Network or Service arising from Subscriber’s breach of its obligations. The Subscriber shall immediately notify SWTCH upon becoming aware of any such unauthorized use.
(d) Restrictions. The Subscriber shall not:
(i) sell, resell, license, rent, lease or otherwise transfer the Service or any data collected or maintained by SWTCH in connection with the operation of SWTCH to any third party;
(ii) interfere with or disrupt the Service, the Network, servers, or networks connected to the Service, or disobey any requirements, procedures, policies, or regulations of networks connected to the Network;
(iii) attempt to gain unauthorized access to the Network or the Service or related systems or networks or any data contained therein, or access or use the Service through any technology or means other than those provided or expressly authorized by SWTCH;
(iv) reverse engineer, decompile or otherwise attempt to extract the source code of the Service, Network, or any part of same, except to the extent expressly permitted or required by applicable law;
(v) create derivative works based on the Network, the Service, or any of the various SWTCH trademarks, service marks, trade names, logos, domain names, and other distinctive brand features and designations used in connection with the SWTCH (the “Marks”) and all other supplied material and/or developed by SWTCH;
(vi) remove, conceal or cover the Marks or any other markings, labels, legends, trademarks, or trade names installed or placed on the Hardware;
(vii) copy, frame or mirror any part of the Service;
(viii) access the Network or any part of the Service for any competitive purpose, or for any improper purpose whatsoever, including, without limitation, to build a competitive product or service or copy any features, functions, interface, graphics or “look and feel;”
(ix) use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Service or collect information about SWTCH users for any unauthorized purpose;
(x) upload, transmit or introduce any malicious code to SWTCH or the Service or Network;
(xi) use any of the Service if the Subscriber is a person barred from such use under the laws of USA or of any other jurisdiction;
(xii) utilize the Service for any other purpose not expressly authorized herein; or
(xiii) permit a Driver or any other third party to do any of the foregoing.
(e) Damages Excluded. SWTCH shall not have any liability whatsoever to Subscriber with respect to damages caused by:
(i) electrical outages, power surges, brown-outs, utility load management or any other similar electrical service interruptions, whatsoever the cause;
(ii) interruptions in wireless or cellular service linking the Hardware to the Network;
(iii) interruptions attributable to unauthorized Service intrusions;
(iv) interruptions in services provided by any internet service provider not affiliated with SWTCH;
(v) interruptions attributable to accidents, vandalism, damage due to unavoidable catastrophes or natural disasters, seasonal maintenance, or environmental issues (including but not limited to damage from snow removal), or other Hardware problems caused by accidents, negligence, or misuse of the Service by Subscriber or a Driver; or
(vi) Subscriber’s use of the Service in breach of these Terms or in a manner not expressly authorized by SWTCH in writing.
8. PROPRIETARY RIGHTS.
(a) Reservation of Rights. Except as expressly stated hereunder, SWTCH and its licensors shall own and hold all right, title, and interest in and to the following:
(i) the Service and Network;
(ii) the Marks;
(iii) all other SWTCH supplied material developed or provided by SWTCH for the Subscriber’s use in connection with the Service; and
(iv) all entitlements to carbon credits arising from provision of the Service under these Terms, including but not limited to: (I) carbon credits created in the voluntary carbon market; and (II) compliance credits created through the provision of the Service pursuant to the Clean Fuel Regulations (SOR/2022-140).
The Hardware is and shall remain the personal property of SWTCH and its licensors, regardless of the way Hardware may be attached to any other property. Subscriber acknowledges that Hardware is provided to Subscriber pursuant to a subscription service, and not a secured financing. The Subscriber shall not permit any lien to be attached to Hardware and shall immediately notify SWTCH if Driver or a third party, including any legal representative or government official:
(I) uses, tampers with, or attempts to use or tamper with the Hardware;
(II) provides Subscriber with any correspondence regarding the Service, the Site, or the Parking Spaces; or
(III) claims or attempts to claim carbon credits or any other entitlements with respect to the Service in a manner that infringes on the rights of SWTCH under Section 8(a)(iv).
(b) Restrictions. Subscriber shall not (or permit Driver or a third party to):
(i) create derivative works based on any of SWTCH’s intellectual property rights, including, without limitation, the Service, Network, Marks, patents, patent applications, patent rights, trademarks, trademark applications, trade names, service marks, service mark applications, copyrights, copyright applications, franchises, licenses, inventories, know-how, trade secrets, customer lists, proprietary processes and formulae, all source and object code, algorithms, architecture, structure, display screens, layouts, inventions, URL links, websites, development tools and all documentation and media constituting, describing or relating to the above, including, without limitation, manuals, memoranda and records (collectively the “Intellectual Property”);
(ii) copy, frame or mirror any part or content of the Intellectual Property;
(iii) reverse engineer any Intellectual Property right; or
(iv) access the Intellectual Property for any improper purpose whatsoever, including, without limitation, to build a competitive product or service, or copy any features, functions, interface, graphics or “look and feel” of the Intellectual Property.
(c) Feedback. SWTCH shall have a royalty-free, worldwide, irrevocable, perpetual, transferable, sublicensable, to use or incorporate in the Service any suggestions, enhancement requests, recommendations or other feedback provided by the Subscriber relating to the Service.
(d) SWTCH Marks. Subscriber shall not use any of the Marks for or with any products, except in the manner permitted pursuant to SWTCH’s usage guidelines or as expressly authorized by SWTCH in writing. From time to time, SWTCH may provide updated Mark usage guidelines, and the Subscriber shall immediately comply with such updated guidelines. The Subscriber shall not use or display any Mark (or any likeness of a Mark):
(i) as a part of the name under which the Subscriber’s business is conducted or in connection with the name of a business of the Subscriber or its affiliates;
(ii) in any manner that implies a relationship or affiliation with SWTCH;
(iii) in any manner that implies any sponsorship or endorsement by SWTCH;
(iv) in any manner that could be reasonably interpreted to suggest that any Subscriber content and services has been authored by, or represents the views or opinions of SWTCH;
(v) in any manner intended to disparage SWTCH, the Network or the Service, or in a manner that is misleading, defamatory, infringing, libelous, disparaging, obscene or otherwise objectionable to SWTCH;
(vi) in any manner that violates any law or regulation; or
(vii) that is distorted or altered in any way (including squeezing, stretching, inverting, discoloring, etc.) from the original form provided by SWTCH.
The Subscriber shall not, directly or indirectly, register or apply for, or cause to be registered or applied for, any Marks or any Intellectual Property substantially or confusingly similar to Intellectual Property registered by SWTCH, or that is licensed to, connected with or derived from confidential, material or proprietary information imparted to or licensed to Subscriber by SWTCH. At no time will the Subscriber challenge or assist others to challenge SWTCH Intellectual Property (except to the extent such restriction is prohibited by law) or the registration of same by SWTCH. Upon termination of these Terms, the Subscriber will immediately discontinue all use and display of all Marks.
(e) Subscriber Data License. As between SWTCH and Subscriber, Subscriber and its licensors retain all rights, title, and interest in and to all Subscriber Data. Subscriber hereby grants SWTCH a non-exclusive, non-transferable, irrevocable, worldwide, royalty-free, fully paid-up license during the Term (and for thirty (30) days thereafter) to use and otherwise exploit the Subscriber Data as reasonably required to provide and improve the Service and meet its obligations under these Terms.
(f) Usage Data. During the Term, SWTCH will develop, create, and accrue information, records, reports, specification, information and other materials or data derived from Subscriber’s use of the Service, including without limitation, data, and statistics regarding the frequency of use of the Service by Subscriber and Drivers (collectively “Usage Data”). As between Subscriber and SWTCH, all rights to and in the Usage Data is the sole property of SWTCH. For clarity, all Usage Data created in the provision of the Service, and generation of data on the electricity supplied to each Driver, shall be the sole property of SWTCH. All right, title, and interest in and to the Usage Data, including all intellectual property rights therein are and will remain with SWTCH and its licensors. SWTCH acknowledges and agrees that it has no right, license, or authorization with respect to any of the Usage Data (including any intellectual property rights therein) except as expressly set forth in these Terms.
(g) Charging Programs. SWTCH shall be permitted to enroll Hardware or the Network into grid service programs, including but not limited to utility demand response programs and electricity markets participation programs (the “Programs”) in accordance with the rules as set forth by the grid operators (“Operator”). Some Programs might involve Subscriber participation and SWTCH will obtain Subscriber’s prior consent prior to enrolling a Subscriber into a Program. Once enrolled in a Program, Operators may enable utility response periods during which time the Service will be available at a reduced capacity (each such period, an “Program Event”). Subscriber agrees that SWTCH is the only party allowed to enroll the Hardware or Network the Program and agrees not to contract with Operators in a way that diminishes SWTCH’s rights under these Terms.
9. CONFIDENTIAL INFORMATION.
(a) Definition of Confidential Information. “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”) in connection with the Service, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including but not limited to business and marketing plans, know-how, technology, technical and financial information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
(b) Confidentiality; Protection. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms, except with the Disclosing Party’s prior written permission. The Receiving Party agrees to protect the Confidential Information of Disclosing Party in the same manner that it protects its own Confidential Information (but in no event using less than reasonable care).
(c) Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance if the Disclosing Party wishes to contest the disclosure.
(d) Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of these Terms, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
10 TERM AND TERMINATION.
(a) Term. Unless otherwise stated in the applicable Order Form, your Subscription shall be for a term of five (5) years from the date these Terms are accepted (the “Initial Term”). Upon the expiry of the then-current Term, your Subscription shall be automatically renewed for additional one (1) year renewal terms (the “Renewal Term”, collectively with the Initial Term, the “Term”).
(b) Upgrades and Downgrades. Should a Subscriber wish to modify the Service tier, the Subscriber shall provide at least sixty (60) days’ notice prior to the expiry of the then-current Term. Any changes to the Service tier resulting in new Fees will be effective and invoiced in accordance with the subsequent Term’s Subscription billing cycle. Subscriber may be required to enter into a new Order Form reflecting the change to the Service tier.
(c) Non-Renewal. Subscriber may terminate their Subscription by providing written notice of non-renewal at least sixty (60) days prior to the end of the then-current Term. Subscribers will be charged a one-time cancellation fee of $250 per charging unit, due immediately upon the date of non-renewal.
(d) Termination for Cause. These Terms may be immediately terminated by either party if:
(i) either party is in material breach of any of its obligations under these Terms and has not cured such breach within thirty (30) days of the date of its receipt of written notice of such material breach from the non-breaching party; or
(ii) a party becomes the subject of a petition in bankruptcy or any other proceeding related to insolvency, receivership, liquidation or an assignment for the benefit of creditors.
(e) Refunds. Upon any termination of these Terms for cause by Subscriber, SWTCH shall refund a pro-rata portion of any pre-paid Fees. In case of any attempted early cancellation or termination of a Subscription by the Subscriber not otherwise permitted by these Terms, Subscriber must pay the remaining balance of any outstanding or incurred Fees (including any interest incurred per Section 3(b) above) and no refunds will be issued for pre-paid Fees. For clarity, Subscriber shall be obligated to pay Fees for the period between the end of the agreed-upon Term and the date of early cancellation or termination of a Subscription by the Subscriber not otherwise permitted by these Terms.
(f) Result of Termination. Upon termination: (i) except as expressly set forth herein, all licenses and rights granted by SWTCH to Subscriber hereunder shall terminate; (ii) within thirty (30) days of the day of termination, Subscriber shall pay to SWTCH all Fees owing up to and including the effective date of termination (including any cancellation fees for non-renewal and any accrued interest, if applicable). Upon termination, if there are any outstanding Order Forms that extend beyond the termination date of these Terms, the Terms shall remain in effect until all Order Forms have terminated, whereupon these Terms shall terminate. If these Terms are terminated for material breach by either party, all Order Forms shall terminate at the same time as these Terms terminate. The following provisions shall survive termination: 1-4, 5c, 6, 7b-e, 8, 9, 10f, 10g, and 11-24.
(g) Removal of Hardware. Upon termination, SWTCH may, in its own discretion, remove Hardware from the Site at no cost to Subscriber or elect to leave Hardware at the Site and transfer ownership of Hardware to the Subscriber. If SWTCH chooses to remove Hardware: (i) the Subscriber grants SWTCH the right, upon termination, to enter the Site for the purpose of removing Hardware; (ii) within thirty (30) days of termination, SWTCH and Subscriber shall engage in good faith to schedule a date upon which SWTCH shall remove Hardware at no cost to Subscriber; and (iii) the Subscriber agrees to obtain all necessary permits and consents necessary for Hardware removal and that it shall not interfere with SWTCH’s removal of the Equipment upon termination. If SWTCH decides to leave Hardware at the Site: (I) within thirty (30) days of termination, SWTCH and Subscriber shall engage in good faith discussions to transfer ownership of Hardware to the Subscriber and shall enter into a separate agreement as may be required to effect the Hardware transfer; and (II) Subscriber must obtain all necessary consents, permissions, and approvals from the authority responsible for the management of the Site to ensure Hardware can remain on the Site and transfer to Subscriber as contemplated herein.
11. INDEMNIFICATION
(a) Indemnity by Subscriber. Subscriber shall indemnify, defend, and hold SWTCH and its affiliates, and any of their respective present and former directors, officers, members, shareholders, employees, representatives and agents (“SWTCH Indemnitees”), and all of its and their successors and assigns, harmless from and against any and all Damages from third-party Claims which arise out of or relate to:
(i) Subscriber’s negligent acts or omissions, recklessness or willful misconduct;
(ii) Subscribers use of the Service in a manner not authorized by SWTCH that results in the infringement of any third-party rights, including without limitation, infringement of any intellectual property rights or other third party right;
(iii) Subscriber’s unauthorized alterations to the Service, Network, Site or Parking Spaces that affect the ability of SWTCH to meet its contractual obligations;
(iv) Subscriber’s failure to obtain necessary permissions or consents from Site owners, Drivers (as applicable) or any other third party which are required for SWTCH to meet its obligations under these Terms;
(v) Subscriber’s failure to comply with any of its obligations under these Terms or Additional Terms it is subject to;
(vi) Subscriber Data or Usage Data;
(vii) Programs or Program Events; and
(viii) the loss of life or any injury to persons or property due to conditions existing at the Site unless any such Damages arise out of or relate to SWTCH’s negligence or willful misconduct (each a “Subscriber Claim”)
SWTCH will (I) promptly give written notice of each Subscriber Claim to Subscriber; (II) give Subscriber sole control of the defense and settlement of each Subscriber Claim (provided that Subscriber may not settle or defend any Subscriber Claim unless it unconditionally releases SWTCH of all liability); and (III) provide to Subscriber, at Subscriber 's cost, all reasonable assistance in respect to each Subscriber Claim. For the purpose of this Section 11(a), SWTCH is acting as agent and trustee of SWTCH Indemnitees.
(b) SWTCH Indemnity. SWTCH shall indemnify, defend, and hold the Subscriber harmless from and against any and all Damages awarded to a third party that arise from third-party Claims made or brought against Subscriber alleging the Service misappropriates or infringes any intellectual property rights of a third party (each an “IP Claim”), subject to the condition that Subscriber (i) promptly gives written notice of each IP Claim to SWTCH; (ii) gives SWTCH sole control of the defense and settlement of all IP Claims (provided that SWTCH may not settle or defend any IP Claim unless it unconditionally releases Subscriber of all liability); and (iii) provides to SWTCH, at SWTCH’s cost, all reasonable assistance in respect to each IP Claim.
(c) Mitigation. If: (i) SWTCH becomes aware of an actual or potential IP Claim; or (ii) Subscriber provides SWTCH with notice of an actual or potential IP Claim, SWTCH may (or in the case of an injunction against Subscriber, shall), at SWTCH’s sole option and determination: (I) procure for Subscriber the right to continue to use the Service; or (II) replace or modify the Service with equivalent or better functionality so that Subscriber’s use is no longer infringing; or (III) if (I) or (II) are not commercially reasonable, terminate provision of the Service and refund to Subscriber any pre-paid Fees for any periods after the termination of the Service, less any outstanding Fees owed by Subscriber to SWTCH.
(d) Exclusions. The obligations in Sections 11(b) and (c) do not extend to: (i) any IP Claim based upon infringement or alleged infringement of any intellectual property right by the combination of the Service with other products, software or services not provided by SWTCH; (ii) any IP Claim related to any Subscriber Data, Usage Data, or a Third-Party Service; or (iii) any IP Claim related to any use or exercise of any other right in respect to the Service outside the scope of the rights granted under these Terms.
12. DISCLAIMER AND LIMITATIONS OF LIABILITY
(a) Exclusions of Liability. Except for either party’s indemnification obligations, Subscriber’s breach of SWTCH’s intellectual property rights, any claims for non-payment of Fees, or a party’s breach of its confidentiality obligations under these Terms, a party’s total liability to the other party for damages of any kind, whether based on breach of contract, tort (including negligence) or otherwise under these Terms will be limited to the Fees payable by Subscriber to SWTCH in the twelve (12) months immediately preceding the event giving rise to such claim.
(b) Limitation of Liability. In no event shall a party have any liability to the other party for any lost profits or for any indirect, special, incidental, or consequential damages (including, without limitation, damages for loss of business, loss of profits, business interruption, loss of data, lost savings or other similar pecuniary loss) however caused and, whether in contract, tort (including negligence) or under any other theory of liability, whether or not SWTCH has been advised of the possibility of such damages.
(c) Disclaimer. Except as expressly provided in these Terms, SWTCH makes no representations and provides no warranties or conditions of any kind, whether express, implied, statutory or otherwise, and specifically disclaims all implied representations, warranties and/or conditions, including any representations, warranties and/or conditions of merchantability, merchantable quality, durability, title, non-infringement, satisfactory quality or fitness for a particular purpose, to the maximum extent permitted by applicable law.
(d) Provision of Service. Subscriber acknowledges that, while the Service may interface with Third-Party Services, no representation or warranty is given by SWTCH in respect of any Third-Party Services. The Service is provided "as is" with no warranties whatsoever; SWTCH does not make any expressed, implied, or statutory warranties, claims or representations with respect to the Service, including, without limitation, warranties or conditions of quality, performance, integrity of data, non-infringement, merchantability, or fitness for use for a particular purpose. SWTCH further does not represent or warrant that the Service or Network will always be available, accessible, uninterrupted, timely, secure, accurate, complete, and error-free or will operate without packet loss, nor does SWTCH warrant any connection to or transmission from the internet.
13. INJUNCTIVE RELIEF
The parties recognize that the obligations under these Terms are special, unique and of extraordinary character. The parties acknowledge the difficulty in forecasting damages arising from the breach of any of the obligations or restrictive covenants and that the non-breaching party may be irreparably harmed by the breaching party’s conduct. Therefore, the parties agree that the non-breaching party shall be entitled to elect to enforce each of the obligations and restrictive covenants by means of injunctive relief or an order of specific performance and that such remedy shall be available in addition to all other remedies available at law or in equity, including the recovery of damages from the non-breaching party’s agents or affiliates involved in such breach. In such action, the non-breaching party shall not be required to plead or prove irreparable harm or lack of an adequate remedy at law or post a bond or any security.
14. REPRESENTATIONS AND WARRANTIES.
(a) Mutual Warranties. Each party represents and warrants to the other party that it has the appropriate legal authority to enter into these Terms and that it has all requisite licenses and permits to perform its obligations hereunder and has the rights to grant the licenses contemplated hereunder.
(b) Subscriber Warranty. Subscriber represents and warrants to SWTCH that it has the appropriate legal authority to execute and be bound by the Terms, it has the full power and authority to permit SWTCH to install Hardware at the Site, that it has all requisite licenses and permits to perform pursuant to the Terms, the electrical usage consumed by the Hardware will not violate or otherwise conflict with the terms and conditions of any other agreement, that it is not bound by any other agreement which precludes it from complying with these Terms, and that it will perform its obligations under the Terms in compliance with any applicable laws, rules, regulations or ordinances.
15. HEADINGS; USE OF SINGULAR.
The headings in these Terms are used for convenience only and shall not be used to define, limit, or describe the scope of these Terms or any of the obligations set out in these Terms. In these Terms, the use of the singular shall be deemed to include plural wherever the context so requires and vice versa.
16. GOVERNING LAW
These Terms shall be governed by and construed in accordance with the laws of the State of Delaware and laws of USA, as applicable. The courts located in Delaware shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to these Terms. The application of the United Nations Convention on Contracts for the International Sale of Goods to these Terms is expressly excluded.
17. DISPUTE RESOLUTION. You and SWTCH shall use all reasonable endeavors to discuss and resolve any dispute which may arise out of or in connection with these Terms or your receipt of the Service. If the dispute cannot be resolved within ten (10) business days, you and SWTCH will attempt to settle it in good faith by mediation. To initiate the mediation, a party must give notice in writing to the other party requesting a mediation. A copy of the request should be sent to ADR Chambers. The mediation will take place in Delaware and the language of the mediation will be English. The mediation shall be governed by the substantive law of the State of Delaware. If the dispute is not settled by mediation within thirty (30) days of commencement of the mediation or within such further period as the parties may agree to in writing, the dispute shall be referred to and finally resolved by binding arbitration at ADR Chambers. The arbitration shall be governed by the applicable rules of the Arbitration Act (Delaware), and arbitration proceedings shall take place in Delaware before one (1) arbitrator. In the event the parties are unable to agree as to the appointment of an arbitrator for any reason, then such arbitrator shall be selected randomly by ADR Chambers. Each party shall bear its own legal costs in connection with a mediation and/or arbitration under this provision. All information pertaining to any mediation/arbitration under this Section 17 shall constitute Confidential Information.
18. NOTICES
Any notice required to be given pursuant to these Terms shall be deemed to have been given if personally delivered, sent by an e-mail or if mailed by prepaid registered mail to SWTCH or Subscriber. Notice given by prepaid registered post shall be deemed to be given on the fifth (5th) calendar day following the posting of such notice. Notice given by email shall be deemed to have been validly and effectively given and received on the date and at the time of transmission unless the transmission is given after 5:00p.m or unless the transmission is sent on a day which is not a Business Day, in which case the transmission shall be deemed to have been received on the first (1st) Business Day following transmission. Any notice required to be provided in accordance with these Terms shall be provided to a party at the details as provided in the applicable Order Form.
19. INSURANCE
At all times during the Term, the Subscriber shall keep and maintain insurance at the level of the industry standard, or higher if required by law. Upon request by SWTCH, the Subscriber shall furnish a certificate of insurance evidencing such insurance is in full force and effect. SWTCH shall maintain commercial general liability insurance coverage liability limit of $5,000,000 for each occurrence of bodily injury, death, or property damage. The insurance required under this Section 19 shall be maintained in effect during the Term, provided that any policies written on a “claims made” basis shall be maintained for at least two (2) years following termination of these Terms, however caused.
20. RELATIONSHIP OF PARTIES
The parties are independent contractors. These Terms does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Except as expressly provided in these Terms, there are no third-party beneficiaries to these Terms.
21. FORCE MAJEURE
If either party shall be delayed or hindered in or prevented from the performance of any act required under these Terms by reason of any strike, lockout, labor trouble, inability to procure materials or energy, failure of power, hurricane, restrictive governmental laws or regulations, riot, insurrection, picketing, sit-ins, war or other unavoidable reason of a like nature not attributable to the negligence or fault of such party, then the performance of such work or action shall be excused for the period of the unavoidable delay and the period for the performance of any such work or action will be extended for an equivalent period.
22. WAIVER
No delay or omission by either party hereto to exercise any right, remedy or power occurring upon any non-compliance or default by the other party with respect to these Terms shall impair any such right or power or be construed to be a waiver thereof. These Terms may be waived only in writing and only by the party that is entitled to the benefits of the terms or conditions being waived. A waiver by either of the parties hereto of any of the covenants, conditions or agreements to be performed by the other shall not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement herein contained (whether or not the provision is similar).
23. FINAL AGREEMENT
These Terms (including any referenced agreements including but not limited to an Order Form entered into between the Parties and any applicable Additional Terms) contain the whole agreement between the parties. Each party further acknowledges that it has not relied upon any oral or written representations made to it by the other or its employees or agents and has made its own independent investigations into all matters relevant to it. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be fully enforced.
24. ASSIGNMENT
Subscriber may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of SWTCH (not to be unreasonably withheld); provided, however, that Subscriber may assign these Terms in their entirety (including all Order Forms) if title is transferred pursuant to a sale of Subscriber’s real property which grants Subscriber the right to provide use of the Hardware to Drivers by virtue of owning that real property. To give effect to such assignment, Subscriber and assignee shall execute a novation agreement substantially in the form provided by SWTCH. SWTCH may assign these Terms in their entirety (including all Order Forms), without consent of Subscriber, to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all its business, shares, or assets. Subject to the foregoing, these Terms shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
Last Updated: June 25, 2024